Walter Muranga v Josam Alikanjera Linde

The respondent had purchased property (Stand No. 3415 Muchakata Close, Rujeko 'A', Masvingo) following the winding up of the estate of the late Esau Tizirai Muranga and obtained title registration. He instituted eviction proceedings in the Magistrate Court against Auxillia Muranga (the surviving spouse) and the applicant Walter Muranga. The Magistrate Court granted the eviction order in favor of the respondent on the basis of actio rei vindicatio. The applicant and Auxillia Muranga noted an appeal to the High Court but failed to file heads of argument within the prescribed 15-day period as required by Rule 95(15) of the High Court Rules, 2021. The appeal was consequently deemed abandoned and dismissed. The applicant then brought this application for reinstatement of the appeal, claiming that neither he nor his legal practitioner received the Registrar's letter dated 15 July 2021 calling for heads of argument due to: (1) the legal practitioner Mr Ndlovu being on leave attending to a family emergency, and (2) the clerk who received the letter falling ill with suspected COVID-19. The applicant also cited COVID-19 lockdown Practice Directions as contributing to the delay.

• Whether the application for reinstatement of the appeal was fatally defective for failure to comply with Rule 60(1) of the High Court Rules, 2021 by not using the prescribed Form 23 for chamber applications to be served on interested parties
• Whether the applicant's failure to apply for condonation for non-compliance with the peremptory rule regarding use of Form 23 was fatal to the application
• Whether the reasons advanced by the applicant for the delay in filing heads of argument were acceptable

The application for reinstatement of the appeal was struck off the roll with costs. The court declined to award costs on the superior scale as sought by the respondent.

Where a chamber application is required to be served on an interested party, the use of Form 23 (as prescribed by Rule 60(1) of the High Court Rules, 2021) is peremptory and mandatory. The significance of Form 23 lies in its inclusion of procedural rights and time frames (dies induciae) that alert the respondent to what action must be taken and within what period. Failure to use the prescribed form renders the application defective. Furthermore, where a party fails to comply with peremptory rules of court and is aware of such non-compliance but fails to apply for condonation, it is sufficient for the objecting party to merely point out the non-compliance for the application to be struck off the roll. The fact that the respondent nevertheless managed to file opposing papers does not cure the applicant's non-compliance with mandatory procedural requirements.

The court observed that it would be facile and superficial to state that merely because the respondent had as a matter of fact filed opposing papers, the applicant should ipso facto be condoned for non-compliance with the rules. The court also commented that the applicant's failure to apply for condonation despite awareness of non-compliance showed a cavalier approach to compliance with rules of court, which must be discouraged by an exemplary order as to costs. While the court ordered costs, it declined to award costs on the superior scale as requested by the respondent, indicating there was no justification in the context of this case for such an award. The court did not express any view on the merits of the underlying appeal or the adequacy of the explanations for delay, as the application was dismissed on the preliminary points alone.

This case reinforces the strict approach Zimbabwean courts take toward compliance with procedural rules, particularly the requirement to use the prescribed forms for court applications. It emphasizes that: (1) the use of Form 23 (formerly Form 29) is peremptory for chamber applications requiring service on interested parties; (2) the critical importance of Form 23 lies in alerting respondents to their procedural rights and the time frames (dies induciae) for responding; (3) failure to comply with mandatory procedural requirements cannot be cured simply because the respondent nevertheless managed to file opposing papers; (4) parties who fail to comply with peremptory rules must apply for condonation, and failure to do so when aware of non-compliance demonstrates a cavalier attitude toward court rules that will be discouraged by exemplary orders; and (5) legal practitioners have a duty to verify compliance with court rules. The case serves as a warning against superficial or facile approaches to procedural compliance.