Raphael Masuku and Sicingile Masuku v Sheriff of Zimbabwe and Theresa Bell and Stanley Nazombe

In December 2011, the first applicant entered into an exchange agreement with the second respondent wherein he received a BMW and a Suzuki pick-up truck in exchange for his Toyota Hiace. The Toyota Hiace was subsequently impounded by police as allegedly stolen, leading to the first applicant's arrest. The second respondent obtained a default judgment (HC 1938/12) against the first applicant for the value of her vehicles. A writ of execution was obtained, leading to the sale of the applicants' property (stand 4022 Khumalo Township, Bulawayo) on 28 August 2013. The Sheriff informed all parties to file objections within 15 days, but none were received. The third respondent was confirmed as the purchaser for US$40,000 on 17 October 2013. The first applicant filed a chamber application (HC 1800/13) on 16 July 2013 seeking postponement of the sale, which was dismissed as it was served after the property had already been sold. On 4 August 2015 (20 months after confirmation), applicants filed this application seeking condonation for late filing of an application to set aside the Sheriff's confirmation of sale.

• Whether the applicants should be granted condonation for filing an application to set aside the Sheriff's confirmation of sale out of time in terms of Rule 359 of the High Court Rules, 1971
• Whether the applicants established sufficient cause for non-compliance with the 30-day time limit prescribed by Rule 359(8)
• Whether the degree of delay was reasonable and adequately explained
• Whether the applicants demonstrated sufficient prospects of success on the merits

The application for condonation was dismissed with costs.

An applicant seeking condonation for late filing must establish sufficient cause by demonstrating: (1) a reasonable degree of non-compliance with the prescribed time limits; (2) a full, honest, and reasonable explanation for the delay; (3) bona fide prospects of success on the merits; (4) the importance of the case; (5) that granting condonation will not unduly inconvenience the court or cause unnecessary delay in the administration of justice. A delay of 20 months beyond the 30-day period prescribed by Rule 359(8) of the High Court Rules is inordinate. An unsubstantiated allegation that former legal practitioners failed to act on instructions, without corroborating evidence or notice to the legal practitioner concerned, does not constitute a reasonable explanation for delay. A party who creates obstacles to a sale process (such as refusing access for valuation) cannot later complain about consequences flowing from those obstacles. The court will not exercise its discretion to grant condonation where doing so would undermine the policy of finality in litigation and where the applicants demonstrate lack of diligence.

The court observed that even if the failure to act timeously was due to the negligence or ineptitude of former legal practitioners, the applicants still bear the burden of showing why they should be excused as a result of their legal practitioner's conduct. The court noted that the second applicant's affidavit was "hollow and inadequate" in failing to provide any explanation for the delay. The court commented that the application appeared to be "an afterthought designed to frustrate the various judgments of this court" given the multiplicity of litigation between the parties. The court observed that there had been a multiplicity of litigation involving the parties, and for the respondents, defending further proceedings would mean more costs. The court noted that it would not be in the interests of justice and fairness to all other litigants and the court's resources to allow applicants to be heard when they have not complied with the applicable rules.

This case reinforces the strict approach Zimbabwean courts take to applications for condonation of late filing, particularly in execution proceedings. It emphasizes that condonation is not a mere formality but requires applicants to satisfy all relevant factors, including providing a full, honest, and reasonable explanation for delay. The judgment demonstrates the court's commitment to finality in litigation and the principle that the law assists the vigilant, not the sluggard (vigilantibus non dormientibus jura subveniunt). It also establishes that where a party blames former legal practitioners for inaction, they must provide corroborating evidence and demonstrate why they should be excused for their legal practitioner's alleged negligence. The case is significant for execution law, showing that parties who frustrate sale processes (such as by refusing auctioneers access) cannot later complain about consequences flowing from their own obstruction.