MAVHIZA versus MUPANDI and NYAKUDYA IN HIS CAPACITY AS THE EXECUTOR DATIVE OF ESTATE LATE YVONNE MHLANGA and REGISTRAR OF DEEDS (R-HCH1006/24) [2026] ZWHHC 28 (26 January 2026)

4 HH 63-26 R-HCH 1006/24 JOSEPH MAVHIZA versus NOMUSA MUSA MUPANDI and GOODWILL NYAKUDYA IN HIS CAPACITY AS THE EXECUTOR DATIVE OF ESTATE LATE YVONNE MHLANGA and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE **DEME J** HARARE, 18 September 2025, 18 November 2025, 20 January 2026 & 26 January 2026. **Opposed application** _R.E. Nyamayemombe_ for the applicant _F Chinwawadzimba_ for the 1st respondent. No appearance for the 2nd and 3rd Respondents. **DEME J:** The Applicant is seeking the application for condonation for the late filing of application for rescission of default judgment. In the alternative, the Applicant seeks the relief that he be granted leave to set down the main matter in case number HC1811/05 within thirty days. **More particularly, the Applicant prayed for the following relief:** “1. The application for condonation and an extension of time within which to file an Application for rescission of this Court’s Order under HC2252/23 be and is hereby granted. 2\. The Applicant is to file the application for rescission of judgment under HC2252/23 within ten (10) days of the granting of this order. ALTERNATIVELY: - 3\. The application for condonation and an extension of time within which to comply with an Order of this Court under HC2252/23 be and is hereby granted. 4\. The Applicant be and hereby is (sic) granted leave to set down the matter under HC1811/05 within 30 days of this order. 5\. There be no order as to costs.” The Applicant once approached this court with the same application. This court, in Judgment number HH424/24, in its operative provision held that: “1. The application for rescission of judgment is granted. 2\. The applicant is granted leave to set down the matter under case number HC1811/95 within thirty days from the date of this order. 3\. There is no order as to costs.” Dissatisfied by the decision of this court, the 1st Respondent appealed against the judgment of this court in case number S613/24. The following were the grounds of appeal: “1. The learned Judge a _quo_ erred and misdirected himself in granting an application for rescission of a default judgment that was not before him. 2\. The court _a quo_ erred and misdirected itself in failing to determine the preliminary point placed before it which related to the appropriateness of the application before it. 3\. The court _a quo_ erred and misdirected itself in granting a relief not sought by any of the parties. 4\. Assuming that the court _a quo_ was properly dealing with an application for rescission of default judgment, the court _a quo_ erred in granting leave to set the matter in HC1811/05 down when it was the same relief that would have been rescinded. The Supreme Court determined the appeal in the following way: “1. The appeal be and is hereby allowed with no order as to costs. 2\. The judgment of the court a quo be and is hereby set aside. 3\. The matter be and is hereby remitted to the High Court for determination of the application in HC1006/24 before a different judge.” Thus, this court, in compliance with the Supreme Court’s decision, ought to determine the matter remitted to it by the Supreme Court. The Applicant alleged that he purchased the property known as Stand Number 3624 Umtali commonly known as 3 Dorset Close, Yeovil, Mutare(hereinafter called “the property”) for his late mother from the 1st Respondent. He further stated that he later discovered that the 1st Respondent sold the same property to the late Yvonne Mhlanga now represented by the 2nd Respondent. The property was subsequently transferred to Yvonne Mhlanga. The Applicant was forced to approach this court seeking revocation of the transfer of the property in case number HC1811/05. The 1st Respondent approached this court in case number 2252/23 seeking the dismissal of the matter in case number HC1811/05 for want of prosecution. The Applicant filed opposing papers in case number HCH2252/23. The opposing papers were not put on the record. After the expiry of _dies induciae, the_ Registrar placed before my attention the record without opposing papers. I had no reason to believe that the matter was opposed as the record reflected otherwise. Acting on this assumption, I proceeded to make an order that the Applicant herein must set down the main matter in case number HC1811/05 within thirty days. In particular, my order is as follows: 1. “The 1st respondent be and is hereby directed to set down the application under case number HC1811/05 within thirty days from the date of this judgment, failing which such application shall be dismissed. 2. There shall be no order as to costs.” The Applicant alleged that he did not become aware of the order in case number HCH2252/23 until 28 November 2023. This position was not disputed by the 1st Respondent. It is common cause that the 1st Respondent never served the Applicant with the order in case number HCH2252/23 soon after obtaining the same. The Applicant claimed that he was not able to approach this court seeking the appropriate remedy as he was facing financial challenges. The present application was only filed more than two months after the Applicant allegedly had knowledge of the judgment. It was the testimony of the Applicant that the delay was not inordinate. The Applicant further affirmed that the order in case number HCH2252/23 was erroneously granted as it was now an opposed matter following the filing of the opposing papers. According to the Applicant, the matter ought to have been referred to the opposed roll allowing parties to argue the matter. According to the Applicant, the present application will not prejudice the Respondents. He further maintained that the 2nd Respondent has already instituted eviction proceedings against him. Hence, he prayed for the granting of the present application to bring finality to litigation. The present application was opposed by the 1st Respondent. The 1st Respondent on papers raised a _point in limine_ based on the appropriateness of the application. According to the 1st Respondent the application before the court is not clear whether it is an application for rescission of default judgment or application for condonation. Following the submission by Mr. Nyamayemombe that the present application is application for condonation, the point _in limine_ concerned was eventually abandoned. During oral submissions, Ms Chinwawadzimba raised a point _in limine_ that the application for condonation cannot be made in terms of Rule 7. According to her submission, the litigant has no right defined in terms of Rule 7 of approaching the court seeking remedy for condonation. Ms Chinwawadzimba argued that the provisions of Rule 7 only apply to the court or Judge and cannot be invoked by a person approaching the court. Mr. Nyamayemombe argued that the application is properly before the court as Rule 7 provides for condonation. According to Mr. Nyamayemombe, Rule 7 is the only applicable rule which confers a right upon a litigant of approaching the court seeking condonation. Rule 7 of the High Court Rules provides that: “The court or a judge may, in relation to any particular case before it or him or her, as the case may be— (a) direct, authorise or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he or she, as the case may be, is satisfied that the departure is required in the interest of justice; (b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appears to it or him or her, to be just and expedient.” What is apparent is that the court can only determine the matter which is before it. Assuming that the court or Judge can condone any departure from the Rules in the absence of a proper application can only be a consequence of wild imagination. Court cannot create issues for itself. It has to adjudicate matters which have been brought by litigants. It is an act of misdirection by the court or Judge to condone any departure from the rules in the absence of a proper application whether in writing or otherwise. Reference is made to the case of _Mugabe_ and _Others_ v _Tsvangirai,_ where the Supreme Court held that: “I am aware that r 4C of the High Court Rules authorises the High Court to depart from its own Rules. Thus, if the Prime Minister had admitted his failure to comply with r 18 and had sought condonation for such failure to comply with r 18 of the High Court Rules, the court _a quo_ could, if it was so persuaded, have granted condonation for such failure to comply with r 18 of the High Court Rules. It, however, is a misdirection for the court to condone a departure from the High Court Rules in the absence of an application for such condonation. _In casu_ , the Prime Minister contended that he did not need such condonation because r 18 of the High Court Rules was superfluous or invalid. Where a litigant adopts such a stance condonation cannot be granted by the court _mero motu_.” Rule 4 C referred to in the case of Mugabe _supra_ is now Rule 7. Thus, the present application is properly before the court. Ms Chinwawadzimba argued that Rule 7 only applies to the matter which is before the court. In my view, the present application is an ancillary matter which is related to the two matters which are before the court. Matters in case numbers HCH2252/23 and HC1811/05 are before this court. The present application seeks the condonation from this court on how these two matters may be prosecuted. For this reason, I find the argument by Ms Chinwawadzimba unmerited. Accordingly, this point _in limine_ is hereby dismissed. On the merits, Ms Chinwawadzimba argued that the present application is unmerited as it fails to meet the requirements of the application for condonation. She argued that there is no satisfactory explanation for the delay. She further argued that the Applicant failed to demonstrate that the intended application enjoys some prospects of success. According to the 1st Respondent, the Applicant failed to tender a reasonable explanation for the delay in approaching the court. It was argued on behalf of the 1st Respondent that the delay to file the present application is inordinate. The 1st Respondent alleged that she will be prejudiced by the present application. The 1st Respondent further averred that the present application has been overtaken by events as the disputed property was transferred to beneficiaries of the Estate Late Yvonne Mhlanga who are not before the court. The 1st Respondent maintained that no default judgment was granted as order granted in case number HCH2252/23 was in favour of the Applicant who was ordered to prosecute the main matter in HC1811/05 within thirty days. On the day of the hearing of this matter, I clarified to the parties that the matter in case number HCH2252/23 was brought before my attention by the Registrar without opposing papers after the expiration of _dies induciae_. I accordingly advised the legal practitioners to take this into account as they were making their own submissions. The issue which arises for determination is whether the application is merited. Application for condonation is a well-travelled path which has been widely defined by our courts. Reference is made to the case of _Mahommed v Kashiri_ _1_ where the court held that: “The broad factors to be taken into account in an application of this nature have been stated in a number of cases and are now well established. They are the extent of the delay, the reasonableness of the explanation for the delay and prospects of success. See de _Kuszaba-Dabrowski et Uxor v Steel NO_ 1966 RLR 60 (A) at 62 and 64; 1966 (2) SA 277 (RA); _HB Farming Estate (Pty) Ltd & Anor v Legal and General Assurance Society Ltd_ 1981 (3) SA 129 (T) at 134A-B; _Kombayi v Berkhout_ 1988 (1) ZLR 53 (S) 57G-58A. Other additional but not exhaustive factors are the importance of the case, the respondent’s interest in the finality of the case, the convenience of the court and the avoidance of unnecessary delays in the administration of justice.” In my view, a delay of less than three months is not inordinate given the circumstances of Applicant’s explanation. The Applicant had knowledge of the order in HCH2252/23 on 28 November 2023. The present application was filed on 16 February 2024. The Applicant averred that he was facing financial challenges. This incapacitation was not disputed. Ms Chinwawadzimba argued that the Applicant ought to have sought alternative service providers like legal aid organisations. The explanation by the Applicant of funding challenges, in my view, is a reasonable explanation. It was not disputed that there were pending cases which also involved the Applicant. Such cases had the potential of draining Applicant’s finances. As for the prospects of success in the main matter, I am of the view that the errors pointed out by the Applicant qualify to be prospects of success for the intended application of application for rescission of default judgement specified in rule 29. Such errors provide a reasonably arguable case for the Applicant. I have no doubt that the matter is of significant importance to the parties who appeared before me. In my view, this is why the parties spent their energy levels prosecuting and defending the present application and its related matters. This suggests that the main matter is regarded highly by the parties. Although the 1st Respondent submitted that it will be prejudiced by the present application, no meaningful submissions were advanced in this regard. I am failing to appreciate the nature of prejudice contemplated by the 1st Respondent given that the property was eventually transferred to the beneficiaries of the Estate Late Yvonne Mhlanga. On this basis, I am of the view that the Applicant stands to suffer more prejudice than the 1st Respondent if the present application is not granted. I am of the further view that the present application will bring finality to the main matter instituted over twenty years ago. After a further interaction with the court, Mr. Nyamayemombe admitted that the alternative relief is a more expeditious relief. Ms Chinwawadzimba argued that the alternative relief has no foundation. She contended that the relief was not motivated in the present application. She further submitted that the alternative relief was deemed not to be appropriate by the Supreme Court. Reference was made to the fourth ground of appeal. Ms Chinwawadzimba submitted that she represented the Appellant at the Supreme Court where it was emphasized that the alternative relief was inappropriate. This was vehemently opposed by Mr. Nyamayemombe who insisted that Ms Chinwawadzimba did not appear at the Supreme Court when the appeal was determined. He further submitted that the issue of the alternative relief was not determined by the Supreme Court. The two issues raised by Mr. Nyamayemombe were not resisted by Ms Chinwawadzimba. In my view, the fourth ground only recognized that the order for rescission of default judgment is not compatible with the alternative relief where the Applicant is calling for extension of time within which to set down the main matter. Obviously, the two orders cannot peacefully co-exist without causing violence towards each other. There is no harm in granting the alternative relief as prayed for. I do agree with Mr. Nyamayemombe’s submissions that the alternative relief is in the interests of justice as it allows saving of resources by the parties. The main relief may give birth to two applications. If the main relief is granted, the Applicant will proceed to file the application for rescission of default judgment contemplated in paragraph 2 of the draft order. If the application for rescission of default judgment is granted, parties may go back to the matter in case number HCH2252/23. Thus, the parties will have to deal with two applications before turning to the main matter in case number HC1811/05. This is a matter where I could have exercised the court’s power established in Rule 29 to set aside the order in HCH225/23 given that at the material time, I was not made aware that the matter was opposed. However, that route is less expeditious than the alternative relief sought. Prior to the introduction of the integrated electronic case management system, it was difficult for the Registrar and the court to know whether all the pleadings issued have been correctly filed in the appropriate file. With the introduction of integrated electronic case management system, the mysterious disappearance of pleadings is now a thing of the past. This is one of the most celebrated advantages of the integrated electronic case management system. I had initially suggested, through the case management order, that the record of proceedings for the appropriate appeal be availed for me to be able to verify whether the Supreme Court ruled that the alternative relief was inappropriate. However, I later discovered that Ms Chinwawadzimba misrepresented facts. The legal practitioner who appeared for the 1st Respondent at the appeal court was Ms Munyongani according to the Supreme Court order filed. Thus, Ms Chinwawadzimba cannot purport to have knowledge of facts of such a case where she was not counsel of choice at the Supreme Court. In light of this discovery, I saw it unnecessary to wait for the record of proceedings. No party had requested that the record be placed before the court. On this basis, no party can claim prejudice arising therefrom. Hence, this judgment was finalized without access to the record of proceedings as I had suggested given the new developments. In the circumstances, the following order is made: A. The application for condonation and an extension of time within which to comply with an Order of this Court under HC2252/23 be and is hereby granted. B. The Applicant be and is hereby granted leave to set down the matter under HC1811/05 within thirty days from the date of this judgment. C. There shall be no order as to costs. Deme J…………………………………….. _Mcmukome_ , Applicant’s Legal Practitioners. Mutindi Bumhira, 1st Respondent’s Legal Practitioners. 1 SC41-21