Nobert Machingauta v Registrar of the Supreme Court and Air Zimbabwe (Private) Limited

The applicant was previously employed as the Strategy and Economics Airline Manager of Air Zimbabwe (the second respondent). He noted an appeal under SC 160/25 against the second respondent on 10 March 2025, undertaking to pay security for costs. The second respondent did not respond to the applicant's request for waiver or indication of acceptable security. On 2 April 2025, the applicant's legal practitioners wrote requesting a waiver, failing which they tendered USD 300 as security for costs, stating that if no response was received within 48 hours, the waiver would be assumed accepted. The second respondent did not respond. On 9 May 2025, the applicant paid RTGS 10,000 as equivalent of the tendered USD 300. On 25 April 2025, the Registrar advised that the appeal was deemed abandoned and dismissed by operation of law on 10 April 2025 for failure to properly furnish security for costs, as there had been no mutual agreement or Registrar's determination. The applicant filed two previous applications for reinstatement (SC 377/25 and SC 501/25), both of which were struck off the roll for procedural deficiencies. The present application sought condonation for non-compliance with r 76(2), extension of time to apply for reinstatement, and adoption of the amount already tendered as sufficient security for costs.

• Whether the applicant's failure to demonstrate prospects of success in his founding affidavit was fatal to the application for condonation and reinstatement
• Whether an applicant can satisfy the requirement to canvass prospects of success by merely referring to other documents or annexures rather than setting out the prospects clearly in the founding affidavit
• Whether the court has an obligation to sift through documents to piece together an applicant's case on prospects of success
• Whether the applicant's appeal was properly deemed abandoned and dismissed by operation of law for failure to furnish security for costs within the prescribed period

The application was dismissed with costs against the applicant in favor of the second respondent.

In applications for condonation of non-compliance with rules and for reinstatement of appeals, prospects of success of the intended appeal must be clearly canvassed and immediately ascertainable from the applicant's founding affidavit. It is not permissible for an applicant to merely incorporate by reference other documents or annexures and expect the court to extract the prospects of success from those materials. The court has no obligation to sift through numerous documents to piece together an applicant's case on prospects of success. An application stands or falls on the averments made in the founding affidavit. Failure to properly canvass prospects of success in the founding affidavit is fatal to such applications. The founding affidavit must present the applicant's case directly so that both the court and the respondent can immediately ascertain what the prospects of success are.

The Court noted that the second respondent had indicated at the hearing that it was no longer pursuing preliminary points raised in the opposing papers, but did not elaborate on what those points were or engage with them further. The Court also observed that the applicant's documents suffered from incomplete annexures and missing identifications (such as the absence of a document marked 'Annexure A' and an incomplete affidavit from SC 377/25 lacking signatures and commissioning details), though these deficiencies were not the ultimate basis for dismissal. The Court's reference to the applicant's 'cavalier attitude' suggests judicial disapproval of the lack of diligence shown in preparing the application, though this characterization was not strictly necessary for the decision.

This case reinforces the well-established principle in South African and Zimbabwean law that applications for condonation and reinstatement of appeals must clearly and explicitly canvass prospects of success in the founding affidavit itself. The judgment emphasizes that courts will not search through multiple documents or incorporated materials to piece together an applicant's case on prospects of success. The case serves as a warning that technical compliance through incorporation by reference is insufficient - applicants must directly address prospects of success in their founding papers. The judgment also highlights the importance of proper founding affidavits in motion proceedings, consistent with the principle that an application stands or falls on the averments in the founding affidavit. This promotes transparency, allows respondents to properly respond, and ensures judicial efficiency.