Sergeant Mhande v The Chairman of the Police Service Commission and Others

The applicants (two police officers) filed a chamber application for reinstatement of their appeal. Previously, under case number SC753/17, Bhunu JA had granted a similar application for reinstatement by consent with a caveat that the applicants were to file their heads of argument within ten (10) days from the date of the order. The applicants failed to comply with this order. The applicants' legal secretary claimed she received the letter calling for filing of heads of argument on 20 June 2018 but inadvertently misfiled it in the wrong file. She only discovered the error on 24 August 2018, and the current chamber application was filed on 10 September 2018, 17 calendar days after the alleged discovery of the anomaly. The applicants sought reinstatement of the appeal without first seeking condonation for non-compliance with the earlier court order.

• Whether an applicant who has failed to comply with a court order must first seek condonation before applying for reinstatement of their case
• Whether the applicants' failure to seek condonation and extension of time was fatal to their application
• Whether the applicants' material non-disclosure of the previous order by Bhunu JA affected their application
• Whether the explanation for non-compliance (secretary's misfiling) constituted good and sufficient cause

The application for reinstatement of appeal was struck off the roll with costs.

An applicant who has failed to comply with a court order or infringed the rules of court must first apply for condonation and extension of time before seeking reinstatement of their case. Condonation is an indulgence granted only when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the rules. An application for reinstatement brought without first seeking condonation for non-compliance with court orders or rules is fatally defective and will be struck off. It is not for the court to infer or speculate about the existence of grounds for condonation when no request has been made for it.

BERE JA indicated that under normal circumstances, if the application had been properly before the court (i.e., with proper condonation application), the court would have been inclined to consider prospects of success of the appeal. The court also made observations about the importance of honest disclosure to courts, citing with approval the principle from Anabus Services that courts should frown on orders sought on incomplete information and should discourage non-disclosure, mala fides, or dishonesty. The court noted that the deliberate attempt to withhold information about the previous order by Bhunu JA did not project the applicants in good light and that courts are not keen to grant favorable orders to litigants who withhold vital information.

This case reinforces important procedural principles in Zimbabwean (and relevant to South African) civil procedure regarding the necessity of seeking condonation before applying for reinstatement when a party has failed to comply with court orders or rules. It emphasizes the importance of full and frank disclosure to the court, particularly in chamber applications where matters may be heard without the opposing party being present. The judgment underscores that condonation is not automatic but is an indulgence that must be specifically applied for with proper explanation. The case also highlights the court's intolerance of material non-disclosure and the duty of litigants to take the court into their confidence when seeking indulgences.