Misheck Mukarati and Lovemore Mukarati v Noreen Chikaka (NO) and Others

The first respondent was appointed as executrix dative of the estate of the late David Chirikure Mukarati on 7 March 2016. The applicants complained to the Master of the High Court (second respondent) on 18 March 2016 regarding the manner in which the estate was being administered. A further complaint was raised by their legal practitioners (Machaya and Associates) on 4 October 2016. On 11 October 2016, the Master advised that he had consented to the sale of the immovable property and could not reverse that decision. The applicants contended that the decision sought to be reviewed was made on 20 July 2016 and communicated on 18 October 2016. The applicants believed that the fifth respondent had fraudulently had her particulars endorsed on the records maintained by the third respondent (Chitungwiza Municipality) to reflect as a surviving spouse. The applicants' legal practitioners advised them to report fraud instead of seeking review. The first respondent filed summons for eviction on 17 November 2016. The applicants' new legal practitioners then advised them to seek review of the Master's decision. The deceased had married eight wives during his lifetime and died prior to the 1997 amendment to the Administration of Estates Act.

• Whether the application for condonation of late filing of review application should be granted
• Whether the delay in filing the review application was reasonable and sufficiently explained
• Whether the fault of the applicants' legal practitioners excused the applicants' failure to timeously challenge the Master's decision
• Whether the proper legal provision was applied in distributing the deceased's estate
• Whether s 52(9) of the Administration of Estates Act was complied with

The application for condonation was dismissed with costs.

Where an applicant seeks condonation for late filing of review proceedings and attributes the delay to their legal practitioners' advice, the applicant must: (1) provide a reasonable explanation for the delay; (2) specify what instructions were given to their legal practitioners; and (3) procure a supporting affidavit from the former legal practitioners where allegations of dereliction of duty are made against them. A litigant cannot escape the consequences of their attorney's lack of diligence beyond a certain limit, and the mere assertion that they believed their legal practitioners were handling the matter is not a reasonable explanation for failure to comply with statutory time limits and court rules. Failure to challenge the Master's decision within the statutory 30-day period provided by s 52(9)(i) of the Administration of Estates Act must also be explained.

The court noted (through reference to an earlier judgment by CHIRAWU-MUGOMBA J in HH-150-19 involving the same parties) that the distribution of an estate of a person who died prior to the amendment of the Administration of Estates Act in 1997 is done in terms of the old customary law of inheritance, which preferred succession by the eldest son. The first respondent's counsel conceded this customary law viewpoint. The court also observed that condonation is at the discretion of the court, and even where a respondent consents, condonation may still be denied. The court commented that applications for condonation should not become an invitation to laxity in observing court rules, noting that courts have been burdened with an undue and increasing number of such applications due to attorney negligence.

This case reinforces important principles in Zimbabwean civil procedure regarding applications for condonation of late filing. It emphasizes that: (1) litigants cannot automatically escape the consequences of their legal practitioners' negligence or lack of diligence; (2) where fault is attributed to legal practitioners, supporting affidavits from those practitioners are required; (3) condonation is discretionary and will be refused where no reasonable explanation for delay is provided; (4) there are limits to how far considerations of mercy (ad misericordiam) can excuse non-compliance with court rules; and (5) failure to utilize available statutory remedies (such as the 30-day challenge period under s 52(9) of the Administration of Estates Act) must be explained. The case also touches on the application of customary law to deceased estates where the deceased died before the 1997 amendments to succession legislation.