Riozim Limited v Nigel Dixon-Warren N.O.

The applicant (Riozim Limited) sought leave to appeal against a High Court decision dated 4 March 2020. In HC 9000/19, the High Court had dismissed the applicant's application for dismissal of case HC 11505/18 for want of prosecution. Subsequently, in HC 3278/20, the High Court dismissed the applicant's application for condonation of late noting of appeal. The applicant then approached the Supreme Court seeking leave to appeal against the refusal of condonation.

• Whether there was a proper application for leave to appeal before the Supreme Court
• Whether leave to appeal can be sought where condonation for late noting of appeal has been refused by the High Court
• Whether the High Court's disposition dealt with both condonation and leave to appeal or only condonation
• Whether the proper remedy for refusal of condonation is to seek leave to appeal or to note an appeal

The application was struck off with costs.

Where the High Court refuses an application for condonation of late noting of appeal, the proper remedy available to the unsuccessful applicant is to note an appeal against that refusal, not to seek leave to appeal. A refusal of condonation is a final decision that does not require leave to appeal. An application for leave to appeal to the Supreme Court is only appropriate where leave to appeal has been refused by the High Court. Where the High Court's analysis and disposition relate solely to condonation and do not determine the issue of leave to appeal, an application for leave to appeal to the Supreme Court is improperly brought.

The Court observed that the High Court's disposition could have been worded differently to more clearly reflect that it related to condonation. The Court also noted that notwithstanding this shortcoming in wording, when the analysis of the judgment is examined, it is clear that the disposition related only to condonation. The Court remarked that it would serve no purpose for the High Court to determine leave to appeal where it did not grant condonation.

This case clarifies the procedural requirements for challenging a High Court's refusal of condonation for late noting of appeal. It establishes that where the High Court refuses condonation, the proper remedy is to note an appeal against that decision (as it is a final decision not requiring leave), rather than to seek leave to appeal to the Supreme Court. The case reinforces proper appeal procedure and the distinction between applications for condonation and applications for leave to appeal in Zimbabwean civil procedure.