The Central Intelligence Organisation and Others v Ricky Nelson Mawere and Another

The respondents had filed a main application (HC 7577/10) seeking nullification of their suspension from employment and reinstatement to their posts. The applicants (Central Intelligence Organisation and others) were served with this application on 27 October 2010 and had until 8 November 2010 to file their notice of opposition. On 8 November 2010, they filed opposing papers, but the respondents challenged the authenticity of the signature on the opposing affidavit, alleging it was not that of the purported deponent (the Director General). The applicants claimed the Deputy Director General had signed in error without changing the deponent's name. On 14 January 2011, a second set of opposing papers was filed without seeking condonation, and this signature was also alleged to be forged. The applicants then filed this application on 15 March 2011 seeking condonation for late filing. By the time of the hearing, the Deputy Director General had died on 11 April 2011, making it impossible (according to applicants) to provide a full explanation of the circumstances surrounding the signing of the affidavits.

• Whether condonation should be granted for the late filing of a notice of opposition where the original opposing affidavit contained a forged or irregular signature
• What degree of candour and full disclosure is required from applicants seeking condonation
• Whether the death of a key witness excuses the failure to provide a full explanation for procedural irregularities
• What is the appropriate costs order where an application lacks candour and involves potential forgery of signatures on court documents

The application for condonation was dismissed with costs on an attorney and client scale in favour of the respondents.

An applicant seeking condonation for late filing must provide a full, candid explanation for the delay and any procedural irregularities. Where allegations of forged signatures on court documents are raised, the applicant cannot simply gloss over these serious allegations and claim high prospects of success on the merits. The death of a key witness does not excuse the failure to obtain that witness's explanation during the substantial period when they were available after the irregularity was first raised. Condonation is not granted merely for the asking; applicants must take the court fully into their confidence and provide comprehensive explanations for their defaults. Where legal practitioners allow or cause papers to be filed that do not place full facts before the court, costs on an attorney and client scale may be awarded to mark the court's displeasure.

The court observed that while the respondents' legal practitioners made a persuasive submission for costs de bonis propriis (from the deponent's own property) against the Director General personally, the more appropriate way to record the court's displeasure where applicants are legally represented would be to award costs on an attorney and client scale. This suggests that in cases involving legally represented parties, punitive costs against the party rather than personal costs against deponents may be the preferred approach, though de bonis propriis remains available in appropriate circumstances. The court also noted approvingly the Chief Law Officer's letter of 13 December 2010 correctly advising that if the signature was not authentic, there was no opposition before the court, though criticized the subsequent lack of full disclosure in her affidavit.

This case is significant in Zimbabwean civil procedure for establishing the high standard of candour and full disclosure required from applicants seeking condonation for procedural defaults. It demonstrates that courts will not tolerate attempts to gloss over serious irregularities such as forged signatures on court documents, and that the death of a witness does not excuse a failure to obtain explanations during the period when such witness was available. The case also illustrates the court's willingness to impose punitive costs (attorney and client scale) where applicants and their legal practitioners fail to exhibit proper candour before the court. It reinforces that condonation is not automatic and requires full, honest explanations that satisfy the court, particularly where the procedural default involves potentially fraudulent conduct.