The first and second respondents (judgment creditors) obtained judgments against the third respondent (judgment debtor) in 2015 and instructed the Sheriff to attach the judgment debtor's property. An auction was scheduled for 7 April 2017, but the judgment debtor obtained a stay of execution. The parties agreed that the property would be released due to escalating storage costs but would remain under judicial attachment. Unbeknown to the judgment creditors, the attached property was subsequently sold by private treaty on the instructions of the second applicant (a law firm), with the first applicant (a senior partner) confirming they caused the sale claiming the property belonged to a company called Econandra. The court a quo found this conduct deceitful and fraudulent and referred its judgment to the Law Society of Zimbabwe. The judgment was delivered on 21 December 2017. The applicants sought condonation for late noting of appeal approximately four years later on 7 October 2021, intending to appeal against the court a quo's findings regarding professional misconduct and the referral to the Law Society.
The application for condonation for late noting of appeal and extension of time was dismissed with no order as to costs (as the application was unopposed).
An appeal must be directed at the substantive order of the court and not merely the reasons for that order. A court's direction to refer a judgment to the Law Society of Zimbabwe under section 25 of the Legal Practitioners Act is an exercise of statutory power to alert the Law Society to prima facie unprofessional conduct, and does not constitute part of the substantive order disposing of the dispute before the court. Such a referral is therefore not appealable. In applications for condonation, applicants must provide a reasonable explanation for the delay in their founding affidavit; the court will not ferret through documents to surmise reasons for delay. While these factors (extent of delay, explanation, and prospects of success) are considered conjunctively, absence of any reasonable explanation combined with lack of prospects of success is fatal to a condonation application.
The court acknowledged the suggestion in Alterm Enterprises (Pvt) Ltd t/a Ruwa Furnishers v John Sisk and Son (Pvt) Ltd SC 4/13 that there may be exceptional circumstances where it might be necessary to attack reasoning itself rather than an order, and that a full court might revisit this principle. However, Makoni JA cautioned against adopting such a 'novel approach' without clear authority, warning it could 'open the floodgates' and undermine a sound, tried and tested principle confirmed in numerous decisions over a long period. The court noted that had the respondent in Alterm Enterprises pleaded its case properly, the difficulty would not have arisen. The court also observed that proper pleading and formulation of causes of action can avoid procedural complications regarding what can be appealed.
This case reinforces the fundamental principle of Zimbabwean appellate procedure that appeals must be directed against substantive orders, not the reasons for judgment. It clarifies that a court's referral of a judgment to the Law Society under section 25 of the Legal Practitioners Act is an exercise of statutory power rather than an appealable order. The judgment emphasizes that departures from the established Chidyausiku principle should only occur in exceptional circumstances, and confirms that proper application of condonation principles requires a reasonable explanation for delay, not merely reliance on good prospects of success. It also illustrates the importance of legal practitioners properly utilizing available remedies (such as responding to Law Society investigations) rather than attempting inappropriate appeals.