MAUTSA versus CLEAR SKY ENTERPRISES (Pvt) Ltd and CITY OF MUTARE and CHIPUKA and CHIPUKA and DAMBAREMBA and CLAYHILL TRADING (Pvt) Ltd and REGISTRAR OF DEEDS N.O (HCH4095/25) [2026] ZWHHC 34 (27 January 2026)

3 HH 71-26 HCH 4095/25 PLAXCEDES TAFADZWA MAUTSA versus CLEAR SKY ENTERPRISES (Pvt) Ltd and CITY OF MUTARE and GIFT TAVENGWA CHIPUKA and SANDRA CHIPUKA and JOHN DAMBAREMBA and CLAYHILL TRADING (Pvt) Ltd and REGISTRAR OF DEEDS N.O HIGH COURT OF ZIMBABWE **MUNANGATI- MANONGWA J** HARARE, 21 November 2025, 27 January 2025 **Opposed Matter** _TK Hove,_ for the applicant _T Shadreck_ , for the first respondent **MUNANGATI- MANONGWA J** : In instances where there is no gross negligence or reckless disregard of court rules courts are more inclined to allow parties to present their cases rather than unnecessarily close doors of justice in a litigant’s face. Such a stance is informed by the need to do justice between man and man which principle is underpinned by the requirement to render access to justice as demanded by the Constitution of Zimbabwe. In that regard, the rules allow the courts and judicial officers discretion where condonation or indulgence is sought, however, such discretion has to be exercised judiciously. In exercising discretion, this court granted the order sought by the applicant thereby uplifting the bar operating against her. This is an application wherein applicant seeks the upliftment of an automatic bar operating against her, for failure to file Notice of Appearance to Defend and Subsequent Plea under case number HCH 1295/25. **FACTUAL BACKGROUND** In March 2025, the first respondent issued summons commencing action against the applicant and the second to seventh respondents under case number HCH 1295/25. The first respondent sought a declaratory order, the cancellation of the applicant’s title deeds, and ancillary relief. Following the issuance of the summons, the first respondent instructed the Sheriff of the High Court to serve the summons at Stand Number 7490, Darlington Extension, Mutare, applicant’s property which is under dispute under case number HCH 1295/25. The Sheriff served the summons on Simbarashe Sandu. The applicant failed to enter appearance to defend on time resulting in applicant being barred hence this application. **APPLICANT’S CASE** It is the applicant's case that, at the property where the summons was served, there is no one residing there as it is a vacant piece of land. Simbarashe Sandu occasionally visits the property for maintenance purposes. The applicant indicates that she is currently residing and domiciled in the United Kingdom. On 26 July 2025, the day before her departure from the United Kingdom, she called Simbarashe Sandu to inform him that she would be traveling to Mutare to inspect the property shortly after her arrival in Zimbabwe. The applicant states that on that day, Simbarashe Sandu informed her that he had received some papers on her behalf. When she inquired about the contents of these papers, he indicated that they appeared to be court documents, as they bore a stamp from the High Court. Consequently, the applicant arranged for the papers to be sent to Harare so that she could address them upon her arrival in Zimbabwe. The applicant states that she asked Blessing Nyamuremba to transport documents from Mutare to Harare. He delivered them to Gift Muchatibaya on July 28, 2025. Gift later gave the documents to the applicant when she arrived on the same day. Supporting affidavits confirming these details have been filed and are part of the record. It is applicant’s evidence that upon her arrival in Zimbabwe on 28 July 2025, the applicant considered the documents and realized they were legal in nature. She visited her lawyers on 29 July 2025, who informed her that she had already been barred and should have filed a Notice of Appearance to Defend within ten (10) days of being served with the summons. The applicant highlights that she and her lawyers successfully accessed the matter under case number HCH 1295/25 on the IECMS platform on that same day, 29 July 2025. On 30 July 2025, the applicant wrote a letter to Messrs. Chikore and Chigwaza, Messrs. Tanaya Law Firm, and Messrs. Muchirewesi and Zvenyika Legal Practitioners, the legal representatives for the first, fifth, and sixth respondents, respectively, enquiring whether they had any objections to the upliftment of the bar. The first respondent was not willing to accede to the request. The second, third and fourth respondent have not filed any opposing papers and the fifth respondent has indicated that it will not be opposing the application. **RESPONDENT’S CASE** The first respondent raised a point in _limine_ in its opposition papers indicating that there exists no valid chamber application before the court due to defects in the applicant’s founding affidavit, rendering it untenable. The pertinent issue which the court must determine first is whether or not the applicant’s founding affidavit is defective. If the founding affidavit is defective, it follows that there is no valid application before the court. **LEGAL ANALYSIS** The respondent claims that the stamp lacks the requisite identification of the commissioner's office or capacity, which renders the affidavit invalid and subsequently affect the application for the upliftment of the automatic bar. The respondent went on to cite _Fistel Cellular (Private) Limited_ v _Netone Cellular (Private ) Limited SC 1/2015_ which stipulates that a stamp that is used to designate a commissioner of oaths should clearly identify the person before whom an affidavit is deposed and the office or capacity in which he or she acts as a commissioner. The applicant maintained that irrespective of absence of designation, the affidavit was valid. The court perceives this to be a factual issue which could be verified. In that regard, the court invoked the provisions of rule 58(12) of the High Court Rules, 2021 which allows a court to give _viva voce_ evidence. In that regard, the person who commissioned the affidavit a Mr P.T Chimanikire presented himself to court and produced a certificate issued to him by the Ministry duly certifying him as a commissioner of oaths. The first respondent’s legal practitioner requested to verify the authenticity of the certificate. Upon confirmation by the said legal practitioner, it became apparent to the court that the applicant’s affidavit is properly commissioned hence valid. The situation resonates well with the aforementioned case of _Fistel Cellular (Private) Limited_ v _Netone Cellular (Private ) Limited SC 1/2015_ where the court went on to accept the affidavit as valid due to knowledge and acceptance by the parties that Raymond Moyo is a legal practitioner which fact did not appear _ex facie_ the document. Incidentally, the objection or point _in limine_ has no merit and is dismissed. Therefore, it follows that the matter has to be decided on merit. After the dismissal of the objection the parties elected that the matter be decided on papers filed of record. **Whether or not the applicant is entitled to the relief sought** In an application of this nature the applicant must satisfy the following requirements which were set out in the case of _Smith N O_ v _Brummer N O & Anor 1954 (3) SA 352 (O)_ at p 358 as follows- (a) A reasonable explanation for the Applicant’s delay; (b) The Application must be bona fide and not made with intent to delay the other party’s claim; (c) The Applicant must not be guilty of a reckless or intentional disregard of the rules of court; (d) The Applicant’s case should not be obviously without foundation; and (e) The other party should not be prejudiced to an extent which cannot be rectified by a suitable order as to costs. In this instance, a reasonable explanation has been provided for the applicant's delay. It has been highlighted that the applicant was hindered by one Simbarashe Sandu's failure to deliver the summons in a timely manner, stemming from his lack of understanding regarding the importance of court documents. This circumstance provides a context for the delay. Suffice that upon arriving in Zimbabwe and becoming aware of the existence of the legal documents, the applicant acted swiftly by consulting with legal counsel on the very next day. This indicates a genuine intent to engage with the legal process and counter the claims being made against her. The fact that the applicant sought legal advice promptly upon her return underscores her diligence and her commitment to responding to the legal action, which should be viewed favorably by the court. It is crucial to highlight that the applicant has not engaged in reckless behavior or exhibited an intentional disregard of the rules of court, particularly given that she was notified of the pertinent proceedings later than expected. Upon receiving such late notification, the applicant acted with remarkable promptness, initiating the current application for condonation without unnecessary delay. This demonstrates and underscores her _bona fide_ intention to defend the action. By responding swiftly to rectify the situation, the applicant has shown a clear commitment to the court’s procedures, countering any assertions of negligence. Furthermore, it is clear to court that the applicant's case possesses a substantive foundation. The applicant holds title deeds to the property under contestation, hence she holds real rights to the property, thereby warranting an opportunity to present further details and arguments to protect such rights. This foundational aspect underlines the legitimacy of the applicant's claim and reinforces the necessity for the court to allow the matter to proceed on its merits and determine the respective rights of each party. Additionally, the court finds that there is no significant prejudicial effect on the first respondent should the application for condonation be granted. Any potential inconvenience to the respondent can be adequately addressed through the imposition of appropriate costs, thus ensuring that the judicial process is both fair and equitable. **CONCLUSION** In consideration of the aforementioned legal analysis, it is evident that the automatic bar operating against the applicant should be uplifted. The applicant has managed to satisfy the requirements in an application for the upliftment of the bar, hence, is entitled to the relief sought. It is imperative that the legal system maintains its integrity by allowing all parties an opportunity to participate fully in the judicial process, free from procedural impediments. However, the court will limit the period within which to file relevant documents to expedite the case. In that regard the following order is granted: 1. The automatic bar operating against the applicant be and is hereby uplifted. 2. The applicant shall file her Notice of Appearance to Defend for case number HCH 1295/25 within 5 days of the granting of this order. 3. The applicant shall further file her plea within 5 days of filing the appearance to defend. 4. Each party shall bear its costs. **MUNANGATI- MANONGWA J:……………………….** _T K Hove and Partners_ , applicant’s legal practitioners _Chikore and Chigwaza Law Chambers_ , first respondents legal practitioners