The applicant sought condonation for the late noting of an application for review of a Sheriff's decision in a judicial sale in execution of the applicant's properties. The applicant challenged the propriety of the judicial sale, alleging that the sale was improperly conducted and that the property was sold at an unreasonably low price. The purchaser had already taken transfer of the property by the time of the application. The respondents raised preliminary points that the application was defective and did not comply with Rule 242, and that the intended application was brought under the wrong legal grounds (Rule 359 instead of common law grounds), and that the claim had prescribed.
The application was struck off the roll with costs on an attorney and client scale.
When a sale of property has been properly confirmed by the Sheriff and transfer has been effected to the purchaser, any application to set aside the transfer falls outside Rule 359 and must conform strictly with the principles of common law. Condonation for failure to comply with court rules cannot be granted merely for the asking - a proper case with good reasons for non-compliance must be made. Failure to lay proper grounds for condonation means the applicant has failed to make a case for the relief sought and condonation must be refused. Legal practitioners and litigants must respect and adhere to court rules, and only fail to do so in justifiable and pardonable circumstances.
The court made strong observations about the lax attitude of legal practitioners towards adherence to court rules, emphasizing that rules are not merely in existence to be followed at one's convenience but direct the legal procedures of the court and must be respected and honoured. The court noted that the application bordered on abuse of court process and that the applicant should have withdrawn the defective application and sought to launch a properly drafted and well-grounded one instead of persisting with a clearly defective and incompetent application that created an unnecessary burden on the respondents. The court declined to address the issue of prescription as it was only relevant if there was a valid application before the court, which it found there was not.
This case reinforces important principles in Zimbabwean (and relevant to South African) law regarding: (1) the strict procedural requirements for challenging judicial sales after transfer has been effected; (2) the distinction between statutory grounds under court rules and common law grounds for review; (3) the importance of compliance with court rules and the requirements for obtaining condonation for non-compliance; and (4) the court's willingness to impose punitive costs where applications amount to abuse of court process. It demonstrates the courts' commitment to enforcing procedural discipline and preventing frivolous litigation.