Raymond Munyaka v Bert Properties (Pvt) Ltd

The applicant and respondent entered into an agreement concerning Lot 80 of the remaining extent of Lydiate situate in the district of Hartley for a purchase price of USD$85,400. The applicant claimed he paid the full purchase price in instalments under what he characterized as a sale agreement styled as a lease agreement to purchase. On 26 May 2020, the applicant received a letter from the respondent purporting to cancel the agreement. The main application sought to declare the cancellation invalid and compel transfer of the property. The respondent opposed, claiming it was a lease agreement to purchase (not a sale), that the applicant did not exercise the option to buy, that payments were not made as per agreement (some in RTGS), and that a balance of US$5,273.73 remained owing as of October 2020. The respondent acknowledged only USD$14,726.27 in payment. After filing opposing papers and heads of argument, the respondent sought leave to file an additional affidavit to introduce evidence that the property was still registered in the names of Michael and Faustina Mboma, from whom the respondent had purchased it under an agreement of sale. This information was inadvertently omitted from the original opposing affidavit and only came to light upon briefing of the advocate.

• Whether the court should exercise its discretion to grant leave to file a further affidavit after the answering affidavit in terms of Rule 59(12) of the High Court Rules 2021
• What factors must be considered when determining an application for leave to file a supplementary affidavit
• Whether inadvertent omission by legal practitioners constitutes a satisfactory explanation for late filing
• Whether the interests of justice require flexibility in procedural rules to ensure adjudication on all relevant facts

1. Leave granted to the respondent to file an additional opposing affidavit. 2. The affidavit annexed to the respondent's notice of intention to file further affidavit admitted as part of respondent's opposing papers. 3. The applicant may file an answering affidavit to the additional opposing affidavit within 10 days of the date of the order. 4. Costs to be in the cause.

When considering an application for leave to file a supplementary affidavit after the answering affidavit under Rule 59(12) of the High Court Rules 2021, the court must exercise its discretion by balancing three fundamental factors: (1) whether there is a proper and satisfactory explanation for why the information was not placed before the court at an earlier stage; (2) the absence of mala fides in relation to the application itself; and (3) that the filing of the supplementary affidavit will not cause prejudice which cannot be remedied by an order of costs. These factors must be considered holistically and not in isolation. The court's fundamental consideration is that disputes should be adjudicated upon all relevant facts, and the court must exercise flexibility to balance the interests of parties to achieve fairness and justice. Inadvertent omission by a legal practitioner, discovered upon briefing of counsel, can constitute a satisfactory explanation where the information is relevant, the request is bona fide, and any prejudice can be cured by allowing the opposing party to respond and by an appropriate costs order.

The court made several non-binding observations: (1) that the court's role is to pursue truth and justice, not to play a game where mistakes result in forfeits; (2) that different legal practitioners possess different skills, and this reality should be recognized in procedural applications; (3) that an application to file an additional affidavit is akin to an application for amendment of pleadings, where courts take a broad and liberal approach; (4) that it would be a grave injustice and scandal if litigants were mulcted in heavy costs for slips of the pen, errors of judgment, or misreading of paragraphs in pleadings by counsel; (5) that courts will not look to technicalities but will see what the real position is between the parties; and (6) that the explanation 'I forgot' must not be taken in isolation from other factors such as prejudice and bona fides of the request. The court also noted approvingly the principle from Whittaker v Roos that courts have the greatest latitude in granting amendments because they are concerned with having a true account of what actually took place and will not give decisions upon what they know to be wrong facts.

This case is significant in Zimbabwean civil procedure as it affirms the court's broad discretion to allow supplementary affidavits in the interests of justice, even where the omission was due to inadvertence. It demonstrates the Zimbabwean courts' willingness to prioritize substantive justice over procedural technicalities, applying the principle that courts are concerned with determining disputes on the true facts rather than playing a game of procedural forfeits. The case clarifies the application of Rule 59(12) of the High Court Rules 2021 and reaffirms the three-factor test from United Refineries for determining applications for leave to file supplementary affidavits. It recognizes that different legal practitioners possess varying levels of skill and that mistakes in pleadings should not result in grave injustice to litigants. The case also illustrates the interconnected nature of the three factors (explanation, prejudice, and bona fides) and that they should not be assessed in isolation.