Selk Enterprises (Private) Limited v Oliver Hurungwe Chimenya and Others

The first respondent subdivided his farm and entered into an agreement with the applicant to sell a portion thereof, prior to obtaining authority to subdivide under s 39 of the Regional, Town and Country Planning Act [Chapter 20:16]. The applicant failed to meet the deadline to sign the purchaser's declaration for transfer. The first respondent then cancelled the agreement and sold the property to the second and third respondents, who took transfer. The High Court dismissed the applicant's claim on 11 September 2002. The applicant noted an appeal on 30 September 2002 but failed to deposit the costs of preparing the record or provide a written undertaking as required by rule 34(1) of the Supreme Court Rules. The appeal was deemed to have lapsed under rule 34(5). The applicant then brought this application for condonation and reinstatement of the appeal.

• Whether condonation should be granted for failure to comply with rule 34(1) of the Supreme Court Rules
• Whether the applicant had prospects of success on appeal
• Whether an agreement for the sale of land entered into prior to subdivision approval under s 39 of the Regional, Town and Country Planning Act is valid
• Whether the first respondent properly cancelled the agreement
• Whether the second and third respondents were innocent purchasers protected from interference

The application for condonation of the late noting of appeal was dismissed with costs.

In applications for condonation of non-compliance with Supreme Court Rules, the court must weigh multiple factors including degree of default, explanation, prospects of success, and finality of judgment. Where the explanation for non-compliance is inadequate and the applicant has no reasonable prospects of success on appeal, condonation will be refused. An agreement for the change of ownership of land entered into prior to obtaining subdivision approval under s 39 of the Regional, Town and Country Planning Act is prohibited and invalid, regardless of when the change of ownership is to take place.

The court observed that while an oversight might be excusable in the case of a junior and inexperienced legal practitioner, it was not acceptable from counsel of Mr Mantsebo's experience. The court also noted that the default itself, considered in isolation, was not so serious as to warrant dismissal on its own, but when considered together with other factors (particularly poor prospects of success), it led to dismissal of the application.

This case reinforces the strict approach Zimbabwean courts take to compliance with procedural rules, particularly time limits in the Supreme Court Rules. It demonstrates that inadequate explanations for non-compliance, coupled with poor prospects of success, will result in dismissal of condonation applications. The case also reaffirms the protection afforded to innocent purchasers in land transactions and the prohibition against negotiating agreements for sale of land prior to obtaining subdivision approval under s 39 of the Regional, Town and Country Planning Act.