Thomas Moyo v Carry On Sibanda and Others

The late Josiah Makore passed away on 15 November 2000. He was customarily married to the 2nd respondent, Ellen Sibanda. On 11 October 2015, the 2nd respondent registered the estate under DRBY 648/15. The 1st respondent (Carry On Sibanda), the eldest son of the deceased, was appointed Executor Dative on 13 October 2015. The First and Final Liquidation and Distribution Account was confirmed on 15 April 2016. Stand number 238/2 Magwegwe was transferred to the 2nd respondent pursuant to the distribution account, and she subsequently sold it to Oma Ndarowa. The applicant, Thomas Moyo (the deceased's son-in-law), claimed he only became aware of the estate administration on 7 April 2017 when served with an eviction letter. He filed an application for condonation of late filing of a review application on 18 May 2017, claiming the deceased left a Will bequeathing the property to him, which he allegedly held since 2000 but never lodged with the Master's office.

• Whether the applicant showed good cause to justify condonation of the late filing of a review application
• What factors should be considered in determining an application for condonation
• Whether the applicant provided a satisfactory explanation for the delay of 11 months beyond the prescribed 8-week period
• Whether the applicant had reasonable prospects of success in the intended review application

The application for condonation of late filing of an application for review was dismissed with costs.

For condonation of late filing to be granted, an applicant must satisfy the court that there is sufficient cause by demonstrating: (1) a reasonable explanation for non-compliance with time limits; (2) that the delay was not inordinate; (3) good prospects of success on the merits; and (4) that granting condonation serves the interests of justice. A delay of 11 months beyond the prescribed 8-week period for filing a review application constitutes inordinate delay. An applicant who holds a purported Will for 17 years without lodging it with the Master's office, remains silent during estate administration, and only acts after the estate is finalized and property transferred, has failed to provide a satisfactory explanation and cannot succeed in an application for condonation. The interests of finality in litigation, particularly in estate matters where third parties have acquired rights, weigh heavily against granting condonation in such circumstances.

The court observed that the applicant 'must carry his cross' and should not impute blame to the respondents who acted in accordance with the law. The court noted that if the applicant truly considered the matter important and possessed a valid Will, he would have lodged it with the Master and registered the estate himself after the deceased's death in 2000. The court remarked that granting condonation would 'open floodgates for more litigation' and burden the administration of justice. The judge emphasized the cavalier approach taken by the applicant and stated that given his prolonged inaction, 'he should in my view forever hold peace.' The court also noted it found it 'unbelievable' that the applicant held onto the Will for 17 years with no action.

This case reinforces the strict approach Zimbabwean courts take towards applications for condonation, particularly in estate matters where finality is crucial. It establishes that a delay of 11 months beyond the prescribed period is inordinate, and that applicants must provide satisfactory explanations for both the original delay and any delay in seeking condonation. The judgment emphasizes that parties who possess relevant documents (such as Wills) have a duty to act timeously and cannot remain silent through estate administration proceedings and later seek to challenge finalized matters. It upholds the principle of finality in litigation, particularly where third-party rights have been acquired, and demonstrates judicial reluctance to reopen settled estates based on belated claims.