Munoda Memory Mano and Tashinga Party Mano v Regional Executors and Trust (Pvt) Ltd and Others

The applicants sought condonation for late filing of an application for review and extension of time. Parirenyatwa Mano died on 22 February 2025. Around 27-28 February 2025, the third respondent (Master of the High Court) accepted a document as the deceased's will and issued letters of administration in favour of the first and/or second respondent. Applicants filed an application for review under HCHF 1685/25 on 28 April 2025, which was allegedly filed out of time (should have been filed by 25 April 2025). First applicant claimed to be the lawfully married spouse (under the Marriage Act), while fourth respondent claimed to be a customary law spouse. Respondents raised several preliminary points including: wrong procedure (chamber application instead of court application), failure to state legal basis, no draft application for review attached, and costs not tendered. First applicant stated they had difficulties mobilizing resources for legal representation and had several pending cases surrounding the deceased's estate. The matter involved a dispute over the deceased's will and the legitimacy of various relationships.

• Whether a chamber application was the correct procedure for seeking condonation for late filing of an application for review instead of a court application under Rule 62 of the High Court Rules 2021
• Whether failure to state the specific legal basis or rule in terms of which the application is made renders the application defective
• Whether failure to attach a draft application for review is fatal to an application for condonation
• Whether the application should be struck off for wrong procedure or dismissed for procedural defects

The preliminary points were dismissed. The court ordered: 'The preliminary points be and are being dismissed.'

1. The fact that an applicant has instituted a court application when they should have proceeded by chamber application (or vice versa) shall not be grounds for dismissing the application in the absence of prejudice to the other party (Rule 58(13) of High Court Rules 2021). 2. Failure to state the specific rule or legal principle upon which an application is based, while undesirable, does not render the application defective or non-suit a party. 3. Failure to attach a draft application for review to a condonation application is not fatal where the founding affidavit sets out sufficient grounds to enable the court to assess the prospects of success of the intended review. 4. Courts will prioritize substance over form when considering procedural objections to applications.

The court observed that while there is no mandatory provision requiring an applicant to state the legal basis or attach a draft application for review, it is desirable practice for legal practitioners to do so as it assists the court and opposing parties. The court also noted that the respondents appeared to be more concerned with form at the expense of substance in raising their preliminary objections. The court's comment that a preliminary point raised in papers but abandoned at hearing will be considered as abandoned provides guidance on procedural practice.

This case reinforces important principles of Zimbabwean civil procedure regarding the court's approach to procedural irregularities. It demonstrates the application of Rule 58(13) of the High Court Rules 2021, which prevents dismissal of applications solely on the basis of using the wrong procedure (chamber vs court application) where no prejudice is shown. The judgment also confirms that courts will prioritize substance over form when assessing compliance with procedural requirements, particularly in condonation applications. The case provides guidance on the level of detail required in founding affidavits for condonation applications, particularly regarding the need (or lack thereof) to attach draft applications for review when the grounds are sufficiently set out in the founding affidavit itself.