Yasmin Tacklah Mahommed v Tawurayi Marvin Kashiri

The applicant and respondent were joint owners of immovable property held under deed of transfer 4986/02. On 16 February 2017, they executed a deed of settlement providing for disposal of the property. Two estate agents (Guest and Tanner, and Dawn Properties) were to value the property, with the mean value determining the price. The applicant had the right to buy out the respondent's share within 6 months, failing which the respondent had the same right for a further 6 months. Dawn Properties valued the property at US$250,000 while Guest and Tanner initially valued it at US$292,000 (30 March 2017). On 26 May 2017, the applicant's legal practitioners queried Guest and Tanner's methodology without copying the respondent's lawyers. Guest and Tanner responded on 23 June 2017, stating the US$292,000 was a typographical error and the correct value was US$192,000. The mean value was calculated at US$221,000 and the respondent paid the applicant US$110,500 for her half-share on 5 January 2018. The applicant refused to transfer, alleging material non-disclosure. The High Court granted the respondent's application for transfer. The applicant appealed (SC 909/2018), but the appeal was struck off on 24 October 2019 for prolix and argumentative grounds of appeal. The applicant then filed a chamber application for condonation and extension of time to appeal on 21 November 2019.

• Whether the application for condonation of late filing of appeal and extension of time should be granted
• Whether the application used the correct form
• Whether the deponent to the founding affidavit had authority
• Whether the matter was res judicata/lis pendens
• Whether the proposed grounds of appeal were defective (prolix and argumentative)
• Whether the draft order was defective
• Whether the delay was inordinate
• Whether a reasonable explanation for delay was provided
• Whether there were reasonable prospects of success on appeal
• Whether the applicant was bound by the conduct of her legal practitioner as agent
• Whether there was fraudulent or material non-disclosure

The application for condonation of late filing of appeal and extension of time within which to appeal was dismissed with costs on the scale of legal practitioner and client.

1. In applications for condonation and extension of time, the applicant must provide an explanation for the delay in the founding affidavit. Failure to provide any explanation is fatal to the application, regardless of prospects of success. 2. The conduct and omissions of a legal practitioner acting as agent for a client are attributed to and bind the principal client, including the legal practitioner's failure to exercise due diligence in comparing documents received. The sins of the legal practitioner visit the client. 3. An application for condonation will be refused where there are no reasonable prospects of success on appeal, even if a liberal approach is applied to consider prospects despite absence of explanation for delay. 4. Courts will impose punitive costs on the legal practitioner and client scale where applications constitute abuse of the court system and persistence in pursuing futile litigation.

KUDYA AJA endorsed the remarks of McNally JA in Ndebele v Ncube 1992 (1) ZLR 288 (S) regarding the proliferation of applications arising from delays and incompetence: "It is the policy of the law that there should be finality in litigation...applications for rescission, for condonation, for leave to apply or appeal out of time...have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry...The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt - roughly translated, the law will help the vigilant but not the sluggard." The Court commented that these 30-year-old words "ring true to the present matter," signaling judicial concern about continued abuse of process through incompetent legal practice.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) The strict requirements for applications for condonation and extension of time, particularly the necessity of providing explanations for delay in the founding affidavit; (2) The limits of the principal-agent relationship in litigation - clients are bound by the conduct and omissions of their legal practitioners acting as agents; (3) The policy of finality in litigation and the court's intolerance for abuse of process through repeated applications arising from legal practitioners' incompetence; (4) The requirements for non-prolix, concise grounds of appeal as prescribed in Rule 44 of the Supreme Court Rules; (5) The application of estoppel principles in property transactions; (6) The circumstances justifying punitive costs on the legal practitioner and client scale.