The Applicant was barred in case number HCH4502/23 for filing opposing papers outside the prescribed dies induciae (time period). The Applicant's legal practitioners had been served with the main application on 10 July 2023 but had no instructions to receive it at that time. They informed the Respondent's legal practitioners of this and claim they agreed to extend the deadline by two days. The Applicant only received instructions on 12 July 2023. The opposing papers were due by 24 July 2023 but were filed on 27 July 2023, three days late. The delay was attributed to logistical challenges as the deponent to the opposing affidavit, Mr. Dumba, was in Mutare and only came to Harare on 26 July 2023. The Applicant then brought this application seeking condonation for the late filing and upliftment of the bar.
The application was granted with amendments to the draft order. The court ordered: (A) The application for condonation for late filing of notice of opposition under HC 4502/23 and upliftment of bar is granted; (B) The bar operating against the Applicant for late filing its opposition under HC4502/23 is uplifted; (C) The opposing papers filed by the Applicant in case number HC4502/23 are deemed to have been properly filed; (D) There shall be no order as to costs.
The binding legal principles established are: (1) In applications for condonation, courts must consider the extent of delay, reasonableness of explanation for delay, and prospects of success (per Mahommed v Kashiri SC41-21); (2) In applications for upliftment of bar, the applicant must show: (a) a reasonable explanation for delay; (b) the application is bona fide and not intended to delay; (c) no reckless or intentional disregard of court rules; (d) the case is not obviously without foundation; and (e) the other party will not suffer irremediable prejudice (per Smith NO v Brummer NO & Anor 1954 (3) SA 352 (O) and Chapfika v CABS HH2/18); (3) In procedural applications, a legal practitioner with relevant knowledge of events and facts may depose to the affidavit without a formal resolution from the client, particularly where the legal practitioners are clearly instructed and the opposing party has accepted this relationship (per Minister of Defence, Security and War Veterans Affairs NO v Manyeruke and Anor HH389/21); (4) Courts ordinarily grant applications for upliftment of bar unless the barred party is abusing court process or has no reasonable explanation for delay, because the policy of the law favors allowing parties to be heard (per Buwu and Ors v Madondo NO and Ors HH660/23); (5) The court has inherent discretion to amend the wording of orders to ensure precision, clarity and to define the way forward for parties (per Jonga v Chabata HH276-17).
The court made several non-binding observations: (1) The court noted that the Public Entities Corporate Governance Act is still new legislation and there may be room for development of jurisprudence on the interpretation of its provisions, suggesting this supported a finding of prospects of success; (2) The court observed that granting the application would bring finality to the main matter and that the main matter was of great importance to the parties given the energy spent in prosecuting and defending the application; (3) The court cited with approval the warning from Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E about the proliferation of applications for condonation and the principle that "the law will help the vigilant but not the sluggard" (vigilantibus non dormientibus jura subveniunt), though the court distinguished the present case as one involving minor delay with reasonable explanation; (4) The court noted that it would have had a different view regarding the legal practitioner deposing to the affidavit if there had been a dispute about whether the Applicant's legal practitioners had a lawful mandate, but that the Respondent had clearly accepted the relationship by serving them and not challenging it; (5) The court observed that determining the validity of Mr. Dumba's opposing affidavit in this application would pre-empt the main matter in case HCH4502/23.
This case reinforces several important principles in Zimbabwean civil procedure: (1) courts favor allowing parties to be heard on the merits rather than barring them on technical grounds; (2) in procedural applications, legal practitioners with relevant knowledge may depose to affidavits without formal resolutions from the client; (3) reasonable explanations for delay, including logistical challenges and lack of initial instructions, will support condonation applications; (4) minor delays (three days in this case) where there is a reasonable explanation and no intention to abuse process will generally result in upliftment of bar; (5) the court has discretion to amend draft orders to ensure clarity and justice; and (6) the policy balance between finality in litigation and doing justice to litigants favors the latter where the delay is minor, explained, and the case has arguable merit. The case also demonstrates the court's approach to composite applications combining condonation and upliftment of bar.