Nobuhle Nanasi Ncube v CBZ Bank Limited and Others

The applicant signed an acknowledgement of debt as surety and co-principal debtor on 6 April 2009 for a loan advanced by the first respondent (CBZ Bank) to Balemu Safaris (Pvt) Ltd. She consented to registration of a mortgage bond over her property at stand 108 Mahatshula Township Bulawayo as security. When the debt was not liquidated, judgment was taken against the applicant and two others on 26 February 2010. She was served with a writ of execution and notice of judicial attachment of her property on 13 May 2010. A sale was scheduled for 27 August 2010 but was cancelled after the applicant offered to settle the debt by 30 November 2010. The applicant paid part of the debt but failed to clear the full amount. The first respondent instructed the Sheriff to proceed with the sale, setting a new date of 24 June 2011. On 17 June 2011, the applicant launched an urgent chamber application purportedly in terms of Order 40 rule 348A of the High Court Rules, seeking to suspend the sale and pay the debt in instalments of US$500 per month.

• Whether the application was brought within the time limits prescribed by rule 348A(5a) of the High Court Rules
• Whether the court could condone the late filing of the application in the absence of a substantive application for condonation
• Whether rule 4C(a) of the High Court Rules could be invoked to authorize a departure from the time limits without a formal condonation application

The application was dismissed with costs on an attorney and client scale.

A substantive application for condonation must be made before the court can exercise its discretion to condone non-compliance with time limits prescribed by the rules of court. Rule 4C(a) of the High Court Rules, which permits the court to authorize or condone a departure from the rules in the interests of justice, does not operate as an automatic alternative to a formal condonation application. Where a party is aware that an application is out of time and this is pointed out in opposing papers, the failure to file a substantive application for condonation is fatal to the main application. The making of an application for condonation is what triggers the court's discretion to extend time, and without it, the court cannot properly consider the factors relevant to granting condonation (extent of delay, explanation for delay, prospects of success, and prejudice to the other party).

The court observed that legal practitioners often attempt to rely on rule 4C(a) to circumvent the proper process when they have fallen foul of the rules of court, but emphasized that there is "no magic" in that rule. The court noted that even if the acknowledgement of debt did not commit the applicant to costs on a higher scale, the case would still attract punitive costs because of the "brazen manner in which the applicant rode rough shod on clear provisions of the rules." The court quoted with approval the statement from Sai Enterprises that arguing against clear Supreme Court decisions "is province of academics and not this court," emphasizing the binding nature of Supreme Court precedents.

This case reinforces the strict approach taken by Zimbabwean courts to compliance with procedural time limits and the requirement for substantive applications for condonation. It emphasizes that rule 4C(a) of the High Court Rules cannot be used as a shortcut to avoid the formal process of seeking condonation for non-compliance with rules. The case confirms that courts are bound by Supreme Court precedents requiring substantive condonation applications, and that a party cannot simply rely on the court's inherent discretion without properly placing the matter before the court through the appropriate procedure. The award of attorney and client costs demonstrates the court's willingness to impose punitive costs where parties flagrantly disregard clear procedural requirements.