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Judgment

9 HH 411/25 HCH 5347/24 AUGUSTUS CLOSE HOLDINGS (PVT) LTD versus THE FARMAKAS TRUST and ANTHONY ANTHONIOU and PAIDAMOYO KURUNERI and CAROL HOBBART and JOHN GEORGE SAMPSON and CITY OF HARARE and DIRECTOR OF WORKS N.O. HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 13 March & 10 July 2025 Chamber application for condonation, upliftment of the bar and reinstatement of withdrawn pleadings Z. T. Zvobgo, for the applicant R. Goba, for the first, second, third and fourth respondents No appearance for the fifth, sixth and seventh respondents MUSHURE J: INTRODUCTION This is an opposed composite chamber application for condonation for late filing of a notice of opposition and heads of argument, upliftment of automatic bar and reinstatement of withdrawn pleadings. The applicant and the first to fourth respondents are either owners or have interests in properties situated in a close known as Augustus Close situated in Mt Pleasant, Harare. A spat between the neighbours following the applicant’s decision to construct a boarding house for students accommodation at one of the properties, namely stand 531 Mt Pleasant Township, commonly known as 5 Augustus Close, has generated a series of litigation in this court, including the present application. BACKGROUND The common cause facts leading to the present application can be summarised as follows-on 11 August 2023 the first, second, third and fourth respondents obtained a provisional order out of this court under case number HCH4608/23, ordering the fifth respondent and the applicant to terminate all building operations and commercial activities of whatsoever nature at 5 Augustus Close. The order, issued by Wamambo J, also directed the vacation from 5 Augustus Close of all contractors, agents and occupants of the applicant and the fifth respondent. In the event that the applicant or the fifth respondent failed to comply with the terms of the order outlined above, the Deputy Sheriff was authorised, with the assistance of the Zimbabwe Republic Police, to enforce the court’s order. The provisional order was served directly on the applicant on 22 August 2023. It gave the applicant ten days within which to oppose the confirmation of the provisional order, if the applicant so wished. The applicant did not file such opposition. On 10 September 2023, the first to fourth respondents applied for confirmation of the provisional order. Still, the applicant did not file any opposition. By operation of the law, the applicant stands barred. It wishes to have that bar removed so that it can properly oppose the application for the confirmation of the provisional order. THE APPLICANT’S CASE The applicant alleges that it was only invited by its erstwhile legal practitioners, Tavenhave and Machingauta Legal Practitioners, to sign opposing papers on or around 30 November 2023. The opposing papers were not filed with this court. It turns out they were only filed on 11 January 2024, together with the applicant’s heads of argument. The applicant asserts that all along, it was unaware that the opposing papers were not only out of time but had then eventually been filed belatedly. The applicant asserts, further, that it was advised by its erstwhile legal practitioners that they had attended court and judgment had been reserved on 7 February 2024. The applicant alleges that sometime in March 2024, its representative had a heated argument with its erstwhile legal practitioners over their handling of the matter and the lack of communication. This, according to the applicant, culminated in the erstwhile legal practitioners renouncing agency on 13 March 2024. The applicant states that it was served with the notice of renunciation around 25 March 2024. The applicant submits that around 26 March 2024, its representative attended to the High Court to be linked to the matter to enable it to access the court record, subsequent to its ‘abandonment’ by Tavenhave and Machingauta Legal Practitioners. The applicant submits, further, that it made a series of discoveries that day, firstly, that there was no judgment issued. Secondly, the matter had not been heard in February 2024. Thirdly, its notice of opposition and heads of argument had been withdrawn on 13 March 2024 by its erstwhile legal practitioners without its consent. The applicant then engaged Shava Law Chambers for an opinion. On 10 April 2024, they wrote a letter to Tavenhave and Machingauta Legal Practitioners requesting to be apprised of the circumstances leading to the withdrawal of the opposing papers and heads of arguments. They requested for a response by 16 April 2024, but the response never came. On 26 April 2024, the applicant launched an application for condonation under HCH1944/24. The application was struck off the roll by Deme J because the applicant only sought condonation but did not expressly seek removal of the bar that was in operation against the applicant under HCH4608/23, nor did it seek to reinstate the pleadings that had been withdrawn by Tavenhave and Machingauta Legal Practitioners. The applicant has now instituted the current proceedings. If successful, it prays that the following relief be granted:- “The application be and is hereby granted. The applicant’s failure to timeously file its notice of opposition and heads of argument to the confirmation of the provisional order under HCH4608/23 be and is hereby condoned. The automatic bar in operation against the applicant in respect of the proceedings under HCH4608/23 be and is hereby uplifted. The applicant’s notice of opposition and heads of argument to the confirmation of the provisional order granted under HCH4608/23, which were withdrawn on 13th March 2024, be and are hereby reinstated into the court record for that matter Any respondent who opposes the application be and is hereby ordered to pay costs on a higher scale.” In motivating its application, the applicant asserts that it has a reasonable explanation for the delay. It places the blame squarely on the shoulders of Tavenhave and Machingauta Legal Practitioners. It is quick to point out that, given the acrimonious circumstances in which they parted, it will not be able to secure an affidavit from them to confirm its assertions. For its part, the applicant accepts that it could have been more forceful in pushing for regular updates, but also states that it is not conversant with the timelines set in the Rules. It submits that the delay is not inordinate and it has high prospects of success under HCH4608/23. The issue before the court then was the failure by the sixth respondent to consider their objections to an application for a change of use permit At the time the provisional order was granted, the applicant argues, a permit had not been issued, but the same has since been issued, rendering the relief sought on the return date moot. The applicant is of the view that the balance of convenience lies in favour of granting the application so that the matter under HCH4608/23 can be effectively dealt with. The application is strenuously opposed by the first, second, third and fourth respondents. The fifth, sixth and seventh respondents have not filed any papers in response to the application. FIRST TO FOURTH RESPONDENTS’ POSITION The first to the fourth respondents argue, in limine, that this application is fatally defective for want of procedure outlined in Practice Direction 3 of 2013. They accuse the applicant of ignoring the chamber application it filed under HCH1944/24, and making a fresh application seeking the same relief. They argue that since the application under HCH1944/24 was struck off the roll, the matter can only be re-enrolled through a court order, or it can only be reinstated after the defect is rectified. Their reasoning is that Practice Direction 3 of 2013 distinguishes between matters that are struck off the roll for failure to abide by the rules of the court and those that are struck off for other reasons that result in a matter being fatally defective. They argue, further, that the applicant has failed to timeously seek upliftment of the bar and reinstatement of opposing papers, because the applicant had thirty days to seek upliftment of the bar. It only did so after seven months. On the merits, the first to fourth respondents insist that the applicant cannot file a fresh application, ignoring the application under HCH1944/24, which can only be re-enrolled through a court order. They submit that the applicant was given ten days within which to file its opposing papers from 22 August 2023, when it was served with the provisional order. They submit, further, that the applicant was supposed to file its opposing papers on 5 September 2023 but only did so four months later on 11 January 2024. These opposing papers were withdrawn on 13 March 2024 and the applicant is now seeking condonation more than eight months after realising that the opposing papers had been withdrawn. The first to the fourth respondents contend that the applicant has not disclosed to the court that, in between, it filed a notice of appeal on 6 September 2023, which was then dismissed on 6 November 2023. Even then, the first to the fourth respondents further contend, the applicant was one day out of time in filing its opposing papers, and instead of purging its default then, it made a decision to appeal the provisional order. It is the first to the fourth respondents’ argument that the applicant has not clarified when it approached the current legal practitioners, and no evidence has been provided to prove that enquiries were made to its erstwhile legal practitioners, nor have their affidavits been attached. They state that the reason for the withdrawal of the pleadings remains shrouded in mystery, as it has not been explained. Moreover, they further argue, there is no proof to confirm the messages alleged to be WhatsApp communications between the applicant and its erstwhile legal practitioners. The first to the fourth respondents aver that the delay is inordinate, and that some periods which form part of the period of delay have not been explained. They aver, further, that the applicant cannot argue that it was ignorant of the timelines when the same was on the provisional order which was served on it. They challenge the applicant’s submission that it has bright prospects of success because the question of the validity of the permit is pending before this court under HCH3922/24. Further, they question the applicant’s bona fides in making the present application because under HCH4608/23, it withdrew the opposing papers and tendered wasted costs for which the applicant has not tendered any amount. The first to the fourth respondents pray for the dismissal of this application with costs on a punitive scale. ISSUES FOR DETERMINATION After considering the written and oral submissions in this matter, I consider the following to be the salient issues for determination in casu: In limine, (1) Whether or not the application is fatally defective? and (2) Whether or not the application has been made out of time?On the merits, whether or not the applicant is entitled to the relief sought? I turn now to deal with these issues, starting with the preliminary points. WHETHER OR NOT THE APPLICATION IS FATALLY DEFECTIVE? The relevant portions of Practice Direction 3 of 2013 provide that: “Struck off the roll 3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place. 4. In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S vs. Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court. 5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned. Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.” The meaning of the foregoing paragraphs has been subject to interpretation in this jurisdiction. In Bindura Municipality v Magogo 2015 (2) ZLR 237 (S) Guvava JA made the following pertinent observations at p239E-240B: “It seems to me that a proper interpretation of para 5 of the Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the rules. He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned. It seems to me that the restriction on the period within which to rectify the defect was included in the practice directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files. Thus a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned. In this case the applicant correctly filed an application within the prescribed period of thirty days. However an application for reinstatement is not the appropriate remedy. This position is confirmed by the case of Hattingh v Pienaar 1977 (2) SA 182 (O) where the court had occasion to deal with a defective compliance of the rules, such as in the present matter. The Court held as follows: “… a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.” I respectfully agree with this view. The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll. The applicant’s remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of 30 days provided for in the Superior Court Practice Direction.” [Emphasis mine]. This position was reiterated in Chinganga v Shava & Ors SC12-22. In Binga Rural District Council v Mudimba N.O. & Ors HH 445-23, this court also had occasion to examine paragraphs 4 and 5 of Practice Direction 3 of 2013. Musithu J concluded at p3 of his judgment that: “Paragraph 3 is self-explanatory. The words ‘struck off the roll’ are used when disposing of matters that are fatally defective and ought not to have placed before the court in that form from the very onset. In my view para 4 is intended to cater for those matters that are not covered by para 5. This is because para 5 appears to be confined to those instances where a matter has been struck off the roll because of a failure by a party to abide by the Rules of the Court. In such scenario, a party whose matter has been struck off the roll has thirty (30) days within which to rectify the defect failing which the matter is deemed to have been abandoned…. ….The instant matter would not be dealt with under para 5, but para 4. This is because the defect which led to the striking off of the matter had nothing to do with a failure to comply with the rules of court. The matter was struck off the roll for the reason that the deponent to the applicant’s founding affidavit failed to prove that he was duly authorised to represent the applicant by way of a duly signed resolution of the applicant. Paragraph 4 of the Practice Direction is accompanied by a footnote which reads: “Such a matter can only be re-enrolled following an application for which an appropriate Court order is issued. The Registrar shall not reset the matter without a Court order.” So, where a matter is struck off the roll for any other reason other a party’s failure to abide by the rules of court then it can only be re-enrolled in terms of para 4 through an application for which a court order is issued. Further, the Registrar is not permitted to reset the matter down without a court order….” Thus, the position of the law is settled. Where a party has not complied with the rules of the court, he has 30 days within which to rectify the defect. It appears to me that both parties are agreed on that score. However, the point of divergence in casu is the manner in which that defect ought to be rectified. In order to ventilate this issue, it is necessary to relate to the order by Deme J. It is couched thus:- The point in limine raised by the 1st-4th respondents to the effect that the application is improperly before the court for contravening Rule 39 (4) be and is hereby upheld. The point in limine raised by the applicant to the effect that the 1st -4th respondents did not comply with Rule 59 (8) be and is hereby upheld. Pursuant to the point in limine raised by the 1st-4th respondents, the present application be and is hereby struck from the roll. Pursuant to the point in limine raised by the applicant, the opposing papers filed by the 1st -4th respondents are hereby expunged from the record. There shall be no order as to costs. From my reading of the court order, the application under HCH1944/24 was struck off the roll for the applicant’s failure to comply with Rule 39 (4) of the High Court Rules. If I have correctly understood the position of the law as enunciated in Bindura Municipality supra, Chinganga supra and Binga Rural District Council supra, then where an applicant is foul of compliance with the rules, such an application is fatally defective. On the authority of Bindura Municipality supra, my view is that an application for reinstatement is not the appropriate remedy, but the appropriate remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh application.The first to fourth respondents argue that since the applicant has deposed that it seeks to address the shortcomings in HCH1944/24, then it ought to rectify the defect and seek reinstatement of that application. In addition to the observations I have already made above in light of the jurisprudence of this jurisdiction, I find the respondent’s argument untenable because, firstly, the meaning ascribed to ‘struck off the roll’ by Practice Direction 3 of 2013 is clear. The term is used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place. I do not want to fathom that the respondents are arguing that a fatally defective application can simply be reinstated. Such a position is not supported by the law.In the words of GUVAVA JA in Bindura Municipality supra at 238G-H: “Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of decisions of this Court. The leading case in this regard is the case of Jensen v Acavalos 1993 (1) ZLR 216 at 220 B (S) where KORSAH JA stated as follows: “… a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, it must be struck off the roll….” It is my view that these seminal words apply with equal force to fatally defective applications. A fatally defective application is a nullity. A nullity cannot be reinstated. WHETHER OR NOT THE APPLICATION HAS BEEN MADE OUT OF TIME As for the preliminary point that the application ought to have been filed within 30 days, the first to fourth respondents did not motivate it in their heads of argument and in oral submissions, but for completeness, I state that no legal basis for this objection has been laid by the first to fourth respondents. I have found none. In that regard, that preliminary point seems to have been raised as a matter of fashion. It is unmeritorious and I accordingly dismiss it. I move now to consider the merits of this matter. WHETHER OR NOT THE APPLICANT IS ENTITLED TO THE RELIEF SOUGHT The applicant has made a composite application for condonation, upliftment of the bar and reinstatement of withdrawn pleadings. Such a procedure is not alien in our jurisdiction. In Dewan v Nyathi & Ors HB 84-04, the court, which was seized with a composite approach for upliftment of the bar and rescission of default judgment, commented that such a procedure is founded on usual practice because the explanation necessary for the default overlaps to a large extent with that of the upliftment of the bar. In Read v Gardner & Anor 2019 (3) ZLR 575 (S) at p581G, the court remarked that there is nothing in principle which precludes the composite adjudication of applications, especially as the considerations to be applied in the determination of the composite applications are virtually identical. This is also expedient for the purposes of expediting the finalisation of such matters. In this matter, the first to the fourth respondents have not taken issue with the composite application. Having made these observations, I turn to deal with the merits of the composite application. A long standing principle of our law is that a party who fails to comply with the rules of this court should apply for condonation as soon as they become aware of the non-compliance, giving a fully detailed, reasonable and adequate explanation for the failure to comply with court rules: Chiweza & Anor v Mangwana & 4 Ors HH186-17 at p. 4. A critical element to note is that in giving this explanation, such an applicant must take the court into his confidence and give an honest account of his default to enable the court to make an informed decision whether to grant the indulgence he seeks: Zimslate Quartzite (Pvt) Ltd & Ors v CABS SC43-17 at p. 17. Essentially, a party seeking condonation and extension of time must, of necessity, satisfy the court that there is a valid and justifiable reason as to why they failed to comply and why that failure should be condoned. Regardless of the prospects of success, a court may refuse to grant the indulgence of a condonation where it forms the view that the explanation for the non-compliance with the rules is unacceptable: Lunat v Patel SC 47-22 at p. 6. Thus, in order to succeed, the court considers the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success: Mzite v Damafalls Investment (Pvt) Ltd & Anor SC 21-18 at p 2. The court also considers the possible prejudice to the other party, the need for finality in litigation, the importance of the case, the convenience of the court and the avoidance of unnecessary delays in the administration of justice: Read v Gardner & Anor supra at p578 E-G. These factors are not individually decisive, but a court is enjoined to cumulatively take them into account to arrive at a conclusion that is in the interests of justice to condone the non-compliance: Dzvetero & Anor v Sakunda Trading (Pvt) Ltd & Ors SC161-21at p3. In Dewan supra, the court noted that courts are generally inclined to grant applications for upliftment of the bar where a reasonable explanation for the applicant’s delay is forthcoming; the application is bona fide and has not been made with intent to delay the other party’s claim; where it appears that there has not been a reckless or intentional disregard of the rules of court; where the applicant’s case is not without foundation and the other party is not prejudiced to an extent which cannot be rectified by a suitable order as to costs. These requirements have been crystallised to fall under three broad categories, namely the explanation for the failure to act on time, the bona fides of the defence and prejudice to the other party: Buwu & Ors v Madondo N.O. & Ors HH660-23. For the withdrawn pleadings, the applicant must also show good cause to warrant their reinstatement. I pause momentarily to state that the requirements for removal of the bar and reinstatement overlap with the requirements for condonation. It is therefore convenient to deal with those requirements at once, as I hereby do. The extent of the delay and the reasonableness of the explanation for the delay At the time the applicant instituted this suit, it was a little over a year and two months out of the prescribed ten days for filing its opposing papers. The applicant argues that there was defective service of the provisional order, hence the dies induciae had not commenced to run even by 11 January 2024 when it filed the subsequently withdrawn notice of opposition and heads of argument. For a party seeking this court’s indulgence, I find that argument preposterous. The court order issued under HCH4608/23 is clear. It authorised service on either the applicant or its legal representatives. While it would have been ideal for the first to fourth respondents to serve the applicant’s legal practitioners, there was no bar on them effecting service in the manner they did by virtue of the order of this court. On 6 September 2023, it is the applicant’s erstwhile legal practitioners who noted the appeal against the provisional order. They could not have noted that appeal from the air. By parity of reasoning, the applicant’s legal practitioners were aware of the contents of the provisional order and made a conscious decision to appeal against it. It is the same order which informed the applicant to oppose the confirmation of the provisional order within ten days. It deliberately chose not to. There is no explanation why the legal practitioners then decided to file opposing papers, which had been deposed to on 30 November 2023, on 11 January 2024. There is also no explanation why the legal practitioners then decided to withdraw the pleadings at the time they renounced agency. The first and fourth respondents have argued that the applicant could have been advised that its application was futile and consequently withdrew the opposition. This is merely speculative. Ideally, it would have been prudent for the legal practitioners to depose to an affidavit admitting the fault and explaining in some detail what actually transpired (See Chibanda v City of Harare SC 83-21 at p.9). However, the applicant advises the uphill battle he faces in securing the affidavit, considering their now sour relationship. In my view, there is some basis in this submission. An attempt to get an explanation has already been sought through a letter by Shava Law Chambers, from whom the applicant sought an opinion. The letter was served on Tavenhave and Machingauta Legal Practitioners on 10 April 2024. It was not responded to. In my view, this letter only goes to show that the applicant indeed made efforts to get an explanation which it could place on file. It failed in those efforts. What I find curious, though, is that given the bleeps and blunders characteristic of the manner in which Tavenhave and Machingauta Legal Practitioners handled this matter, and as pointed out by the first to fourth respondents, the applicant has not reported this matter to the Law Society of Zimbabwe. But I digress.Coming back to the issue at hand, I am alive to the position of the law laid down in a long line of cases since Kombayi v Berkhout 1988 (1) ZLR 53 (S) that there is a limit beyond which a litigant cannot escape the results of its legal practitioner’s lack of diligence. I have no doubt in my mind that the conduct of the applicant’s erstwhile legal practitioners displays the height of tardiness. However, I also note that despite the lackadaisical approach, the applicant’s erstwhile legal practitioners took four months to file the opposing papers. In between, they had filed an appeal on 6 September 2023, which was then dismissed on 6 November 2023. On 30 November 2023, the applicant deposed to an opposing affidavit. The notice of opposition accompanying the applicant’s opposing affidavit is dated 8 November 2023, which is two days after the dismissal of the appeal. In my view, despite the tardiness, the papers on record demonstrate that the applicant was bent on opposing the matter. That, in my further view, should count in its favour. The applicant’s erstwhile legal practitioners then filed the now withdrawn opposing papers on 11 January 2024. On 6 and 7 February 2024, they advised the applicant’s representative of a virtual hearing and reservation of a judgment through WhatsApp communication. The first to fourth respondents have dismissed these communications on the basis that there is no proof that these communications were indeed between the applicant and its legal practitioners then. I am, however, of the view that I have not been given any cogent reason to disbelieve that the communication took place in the form deposed to by the applicant. Further, it has not been disputed that on 25 March 2024, it was served with Tavenhave & Machingauta Legal Practitioners’ renunciation of agency. On 26 March 2024, the applicant’s representative visited the High Court to make inquiries, following which it made the discoveries it did. It then sought an opinion from Shava Law Chambers, who in turn wrote to the applicant’s erstwhile legal practitioners on 10 April 2024, seeking an explanation from them. They were given six days within which to respond. They did not. On 26 April 2024, the application under HCH1944/24 was filed. In my view, the applicant has given a reasonable explanation to account for the time it took to eventually lodge the application under HCH1944/24. From the time the applicant discovered the status of its opposing papers on HCH4608/2, it took approximately 30 days to file its application. Considering what was happening in between, the delay cannot be said to be inordinate.The first to fourth respondents have invited this court to reckon the period of default from 5 September 2023 to 25 November 2024 when this application was filed. On the authority of Danzvara & Ors v City of Harare & Anor HH 860-22, though the argument is technically correct, sight should not be lost that between 26 April 2024 and 12 November 2024, there was an application for condonation pending before this court. While it is accepted that the applicant’s current legal practitioners were not diligent by filing a procedurally defective application in the first place, the applicant cannot be blamed for the time the matter was lying in the High Court Registry, because registry processes are beyond its control. I note that after the court order on 12 November 2024, the application before me was filed two weeks later, on 25 November 2024. To answer the question of whether or not such a delay can be regarded as inordinate, I am reminded of the words of Mathonsi J (as he then was) in Telecel Zim (Pvt) Ltd v POTRAZ & Ors 2015 (1) ZLR 651 (H) at p. 658H-659B, which, although were stated in the context of urgent matters are apposite:- “I find myself having to repeat what I stated in Prosecutor-General v Busangabanye & Anor HH-427-15 at p 3: “In my view this issue of self-created urgency has been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history we are subjected to endless points in limine centered on urgency which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.” [my emphasis] That said, I am of the view that a delay of two weeks reckoned from the date of the order striking off the first application for condonation cannot be said to be inordinate. Looking at the totality of the facts before me, I am of the view that even though the delay in some instances could be regarded as inordinate, the applicant has managed to account for what was happening in this matter. I find that under the circumstances of this case, the applicant cannot be said to have sat on its laurels. Prospects of success It is common cause that on the return date, the first to fourth respondents seek the following order: That the 1st and 2nd respondents’ (applicant and fifth respondent herein) application in terms of the Regional Town and Country Act section 26 (3) be and is hereby declared to be invalid. That the 3rd respondent (sixth respondent) herein be ordered to carry out a full investigation into the conduct of the 1st and 2nd respondents and produce a written report be submitted to the Administrative Court within 30 days of the granting of this order. That 1st and 2nd respondents pay applicants’ (first to fourth respondents herein) costs on a legal practitioner and client scale. It is also common cause that following the court order on 11 August 2023, the permit was issued on 21 August 2023. Under HCH4608/23, the first to fourth respondents seek to impugn an application which has already been granted. If the application has already been granted, there is merit in the applicant’s argument that the question of the validity of the application may have become moot, to the extent that the application has already been considered and disposed of through the issuance of a permit.I make these remarks alive to the decision of the Constitutional Court in Khupe & Anor v Parliament of Zimbabwe & Ors 2019 (3) ZLR 915 (CC) at p920 D-H, where it held that: “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot… The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of ‘such a nature that the decision sought will have no practical effect or result. ” Similarly, in Movement for Democratic Change & Ors v Mashavira & Ors 2020 (1) ZLR 797 (S) at p815B, the court noted that: “…a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable” I remain conscious of the fact that the validity or otherwise of the permit is another issue that stands to be decided at the appropriate time, and the parties have advised that such a process is already underway under HCH3922/24. However, for the purposes of the present application, the reason for the provisional order, which essentially is questioning the validity of the application for the permit, seems to have fallen away. If the application has been overtaken by events, the confirmation of the provisional order will have no practical effect. I am doubtful that the confirmation of the provisional order can operate to grant any actual relief to the first to fourth respondents. There is no longer any ‘flesh and blood’ dispute that the court can resolve, insofar as the validity of the application is concerned. While I appreciate that mootness does not constitute an absolute bar to the justiciability of HCH4608/23, and that the court can still exercise its discretion to hear a moot issue by reason of its significance and the need for an authoritative determination on the issue arising in that matter in the interests of justice, I am of the view that for the foregoing reasons, there is a sound and rational basis for this court to conclude that the applicant enjoys prospects of success. Prejudice to the parties / Balance of convenience On the question of prejudice, it has been argued on behalf of the first to the fourth respondents that they have not been paid their costs for the withdrawal of the pleadings under HCH4608/23. However, the first to fourth respondents miss the point. The question of prejudice relates to the prejudice they stand to suffer should the current application be granted. They have not placed sound reasons before the court; suffice to state that they are entitled to costs following the withdrawal. They ask, should this court grant the relief sought and reinstate the withdrawn pleadings, what will become of their costs? By their own submission, the taxation of those costs is under review. This court is not seized with the issue, and will not be drawn into answering the question of what will become of its costs. For the purposes of the current proceedings, the court is not aware of a legal position where a matter should be dismissed because a party’s taxed costs are undergoing review. At best, the court can, in the exercise of its inherent jurisdiction, stay proceedings pending payment of taxed costs where it is satisfied that the proceedings are vexatious or frivolous and where it is satisfied that the continuance will cause an injustice or embarrassment to the other party and the proceedings amount to an abuse of process: Stanbic Bank Zimbabwe Ltd v CSBBVERA Logistics (Pvt) Ltd 2016 (2) ZLR 521 (H) at p529H -530B. In casu, none of the above has been specifically pleaded, and such a stay has not been sought.In my view, the first and fourth respondents have not properly related to the question of prejudice, should the application be granted because there is none. The construction has been halted by an order of this court. The intended notice of opposition and heads of argument have been on record since 11 January 2024. If anything, it is the applicant who stands to be prejudiced should it be denied the relief it seeks, more so considering that at the end of the day, the ultimate aim is to enable the courts to achieve justice between the parties. It is necessary, in the interests of justice, that the real dispute between the parties be definitively ventilated. While there must be finality to litigation, I am of the view that, given the circumstances of this case, justice will have failed if the door is closed on the applicant. Therefore, after considering all the cumulative factors in this matter, I conclude that there is a basis to grant the applicant the relief it seeks. What remains for me is to determine the question of costs. I note that the applicant has prayed for costs on a punitive scale if any respondent opposes this application. I see no reason why the first to fourth respondents should be penalised for exercising their right to defend proceedings instituted against them. In my view, given that the application has been necessitated by the applicant’s default, an order that each party bears its own costs would be most equitable in the matter. DISPOSITION Consequently, it is ordered that: “The application be and is hereby granted. The applicant’s failure to timeously file its notice of opposition and heads of argument to the confirmation of the provisional order under HCH4608/23 be and is hereby condoned. The automatic bar in operation against the applicant in respect of the proceedings under HCH4608/23 be and is hereby uplifted. The applicant’s notice of opposition and heads of argument to the confirmation of the provisional order granted under HCH4608/23, which were withdrawn on 13th March 2024, be and are hereby reinstated into the court record for that matter. Each party to bear its own costs.” Mushure J: .......................................................................... Zvobgo Attorney’s, applicant’s legal practitioners Venturas and Samukange, first, second, third and fourth respondents’ legal practitioners 9 HH 411/25 HCH 5347/24 9 HH 411/25 HCH 5347/24 AUGUSTUS CLOSE HOLDINGS (PVT) LTD versus THE FARMAKAS TRUST and ANTHONY ANTHONIOU and PAIDAMOYO KURUNERI and CAROL HOBBART and JOHN GEORGE SAMPSON and CITY OF HARARE and DIRECTOR OF WORKS N.O. HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 13 March & 10 July 2025 Chamber application for condonation, upliftment of the bar and reinstatement of withdrawn pleadings Z. T. Zvobgo, for the applicant R. Goba, for the first, second, third and fourth respondents No appearance for the fifth, sixth and seventh respondents MUSHURE J: INTRODUCTION This is an opposed composite chamber application for condonation for late filing of a notice of opposition and heads of argument, upliftment of automatic bar and reinstatement of withdrawn pleadings. The applicant and the first to fourth respondents are either owners or have interests in properties situated in a close known as Augustus Close situated in Mt Pleasant, Harare. A spat between the neighbours following the applicant’s decision to construct a boarding house for students accommodation at one of the properties, namely stand 531 Mt Pleasant Township, commonly known as 5 Augustus Close, has generated a series of litigation in this court, including the present application. BACKGROUND The common cause facts leading to the present application can be summarised as follows-on 11 August 2023 the first, second, third and fourth respondents obtained a provisional order out of this court under case number HCH4608/23, ordering the fifth respondent and the applicant to terminate all building operations and commercial activities of whatsoever nature at 5 Augustus Close. The order, issued by Wamambo J, also directed the vacation from 5 Augustus Close of all contractors, agents and occupants of the applicant and the fifth respondent. In the event that the applicant or the fifth respondent failed to comply with the terms of the order outlined above, the Deputy Sheriff was authorised, with the assistance of the Zimbabwe Republic Police, to enforce the court’s order. The provisional order was served directly on the applicant on 22 August 2023. It gave the applicant ten days within which to oppose the confirmation of the provisional order, if the applicant so wished. The applicant did not file such opposition. On 10 September 2023, the first to fourth respondents applied for confirmation of the provisional order. Still, the applicant did not file any opposition. By operation of the law, the applicant stands barred. It wishes to have that bar removed so that it can properly oppose the application for the confirmation of the provisional order. THE APPLICANT’S CASE The applicant alleges that it was only invited by its erstwhile legal practitioners, Tavenhave and Machingauta Legal Practitioners, to sign opposing papers on or around 30 November 2023. The opposing papers were not filed with this court. It turns out they were only filed on 11 January 2024, together with the applicant’s heads of argument. The applicant asserts that all along, it was unaware that the opposing papers were not only out of time but had then eventually been filed belatedly. The applicant asserts, further, that it was advised by its erstwhile legal practitioners that they had attended court and judgment had been reserved on 7 February 2024. The applicant alleges that sometime in March 2024, its representative had a heated argument with its erstwhile legal practitioners over their handling of the matter and the lack of communication. This, according to the applicant, culminated in the erstwhile legal practitioners renouncing agency on 13 March 2024. The applicant states that it was served with the notice of renunciation around 25 March 2024. The applicant submits that around 26 March 2024, its representative attended to the High Court to be linked to the matter to enable it to access the court record, subsequent to its ‘abandonment’ by Tavenhave and Machingauta Legal Practitioners. The applicant submits, further, that it made a series of discoveries that day, firstly, that there was no judgment issued. Secondly, the matter had not been heard in February 2024. Thirdly, its notice of opposition and heads of argument had been withdrawn on 13 March 2024 by its erstwhile legal practitioners without its consent. The applicant then engaged Shava Law Chambers for an opinion. On 10 April 2024, they wrote a letter to Tavenhave and Machingauta Legal Practitioners requesting to be apprised of the circumstances leading to the withdrawal of the opposing papers and heads of arguments. They requested for a response by 16 April 2024, but the response never came. On 26 April 2024, the applicant launched an application for condonation under HCH1944/24. The application was struck off the roll by Deme J because the applicant only sought condonation but did not expressly seek removal of the bar that was in operation against the applicant under HCH4608/23, nor did it seek to reinstate the pleadings that had been withdrawn by Tavenhave and Machingauta Legal Practitioners. The applicant has now instituted the current proceedings. If successful, it prays that the following relief be granted:- “The application be and is hereby granted. The applicant’s failure to timeously file its notice of opposition and heads of argument to the confirmation of the provisional order under HCH4608/23 be and is hereby condoned. The automatic bar in operation against the applicant in respect of the proceedings under HCH4608/23 be and is hereby uplifted. The applicant’s notice of opposition and heads of argument to the confirmation of the provisional order granted under HCH4608/23, which were withdrawn on 13th March 2024, be and are hereby reinstated into the court record for that matter Any respondent who opposes the application be and is hereby ordered to pay costs on a higher scale.” In motivating its application, the applicant asserts that it has a reasonable explanation for the delay. It places the blame squarely on the shoulders of Tavenhave and Machingauta Legal Practitioners. It is quick to point out that, given the acrimonious circumstances in which they parted, it will not be able to secure an affidavit from them to confirm its assertions. For its part, the applicant accepts that it could have been more forceful in pushing for regular updates, but also states that it is not conversant with the timelines set in the Rules. It submits that the delay is not inordinate and it has high prospects of success under HCH4608/23. The issue before the court then was the failure by the sixth respondent to consider their objections to an application for a change of use permit At the time the provisional order was granted, the applicant argues, a permit had not been issued, but the same has since been issued, rendering the relief sought on the return date moot. The applicant is of the view that the balance of convenience lies in favour of granting the application so that the matter under HCH4608/23 can be effectively dealt with. The application is strenuously opposed by the first, second, third and fourth respondents. The fifth, sixth and seventh respondents have not filed any papers in response to the application. FIRST TO FOURTH RESPONDENTS’ POSITION The first to the fourth respondents argue, in limine, that this application is fatally defective for want of procedure outlined in Practice Direction 3 of 2013. They accuse the applicant of ignoring the chamber application it filed under HCH1944/24, and making a fresh application seeking the same relief. They argue that since the application under HCH1944/24 was struck off the roll, the matter can only be re-enrolled through a court order, or it can only be reinstated after the defect is rectified. Their reasoning is that Practice Direction 3 of 2013 distinguishes between matters that are struck off the roll for failure to abide by the rules of the court and those that are struck off for other reasons that result in a matter being fatally defective. They argue, further, that the applicant has failed to timeously seek upliftment of the bar and reinstatement of opposing papers, because the applicant had thirty days to seek upliftment of the bar. It only did so after seven months. On the merits, the first to fourth respondents insist that the applicant cannot file a fresh application, ignoring the application under HCH1944/24, which can only be re-enrolled through a court order. They submit that the applicant was given ten days within which to file its opposing papers from 22 August 2023, when it was served with the provisional order. They submit, further, that the applicant was supposed to file its opposing papers on 5 September 2023 but only did so four months later on 11 January 2024. These opposing papers were withdrawn on 13 March 2024 and the applicant is now seeking condonation more than eight months after realising that the opposing papers had been withdrawn. The first to the fourth respondents contend that the applicant has not disclosed to the court that, in between, it filed a notice of appeal on 6 September 2023, which was then dismissed on 6 November 2023. Even then, the first to the fourth respondents further contend, the applicant was one day out of time in filing its opposing papers, and instead of purging its default then, it made a decision to appeal the provisional order. It is the first to the fourth respondents’ argument that the applicant has not clarified when it approached the current legal practitioners, and no evidence has been provided to prove that enquiries were made to its erstwhile legal practitioners, nor have their affidavits been attached. They state that the reason for the withdrawal of the pleadings remains shrouded in mystery, as it has not been explained. Moreover, they further argue, there is no proof to confirm the messages alleged to be WhatsApp communications between the applicant and its erstwhile legal practitioners. The first to the fourth respondents aver that the delay is inordinate, and that some periods which form part of the period of delay have not been explained. They aver, further, that the applicant cannot argue that it was ignorant of the timelines when the same was on the provisional order which was served on it. They challenge the applicant’s submission that it has bright prospects of success because the question of the validity of the permit is pending before this court under HCH3922/24. Further, they question the applicant’s bona fides in making the present application because under HCH4608/23, it withdrew the opposing papers and tendered wasted costs for which the applicant has not tendered any amount. The first to the fourth respondents pray for the dismissal of this application with costs on a punitive scale. ISSUES FOR DETERMINATION After considering the written and oral submissions in this matter, I consider the following to be the salient issues for determination in casu: In limine, (1) Whether or not the application is fatally defective? and (2) Whether or not the application has been made out of time? On the merits, whether or not the applicant is entitled to the relief sought? I turn now to deal with these issues, starting with the preliminary points. WHETHER OR NOT THE APPLICATION IS FATALLY DEFECTIVE? The relevant portions of Practice Direction 3 of 2013 provide that: “Struck off the roll 3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place. 4. In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S vs. Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court. 5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned. Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.” The meaning of the foregoing paragraphs has been subject to interpretation in this jurisdiction. In Bindura Municipality v Magogo 2015 (2) ZLR 237 (S) Guvava JA made the following pertinent observations at p239E-240B: “It seems to me that a proper interpretation of para 5 of the Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the rules. He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned. It seems to me that the restriction on the period within which to rectify the defect was included in the practice directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files. Thus a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned. In this case the applicant correctly filed an application within the prescribed period of thirty days. However an application for reinstatement is not the appropriate remedy. This position is confirmed by the case of Hattingh v Pienaar 1977 (2) SA 182 (O) where the court had occasion to deal with a defective compliance of the rules, such as in the present matter. The Court held as follows: “… a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.” I respectfully agree with this view. The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll. The applicant’s remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of 30 days provided for in the Superior Court Practice Direction.” [Emphasis mine]. This position was reiterated in Chinganga v Shava & Ors SC12-22. In Binga Rural District Council v Mudimba N.O. & Ors HH 445-23, this court also had occasion to examine paragraphs 4 and 5 of Practice Direction 3 of 2013. Musithu J concluded at p3 of his judgment that: “Paragraph 3 is self-explanatory. The words ‘struck off the roll’ are used when disposing of matters that are fatally defective and ought not to have placed before the court in that form from the very onset. In my view para 4 is intended to cater for those matters that are not covered by para 5. This is because para 5 appears to be confined to those instances where a matter has been struck off the roll because of a failure by a party to abide by the Rules of the Court. In such scenario, a party whose matter has been struck off the roll has thirty (30) days within which to rectify the defect failing which the matter is deemed to have been abandoned…. ….The instant matter would not be dealt with under para 5, but para 4. This is because the defect which led to the striking off of the matter had nothing to do with a failure to comply with the rules of court. The matter was struck off the roll for the reason that the deponent to the applicant’s founding affidavit failed to prove that he was duly authorised to represent the applicant by way of a duly signed resolution of the applicant. Paragraph 4 of the Practice Direction is accompanied by a footnote which reads: “Such a matter can only be re-enrolled following an application for which an appropriate Court order is issued. The Registrar shall not reset the matter without a Court order.” So, where a matter is struck off the roll for any other reason other a party’s failure to abide by the rules of court then it can only be re-enrolled in terms of para 4 through an application for which a court order is issued. Further, the Registrar is not permitted to reset the matter down without a court order….” Thus, the position of the law is settled. Where a party has not complied with the rules of the court, he has 30 days within which to rectify the defect. It appears to me that both parties are agreed on that score. However, the point of divergence in casu is the manner in which that defect ought to be rectified. In order to ventilate this issue, it is necessary to relate to the order by Deme J. It is couched thus:- The point in limine raised by the 1st-4th respondents to the effect that the application is improperly before the court for contravening Rule 39 (4) be and is hereby upheld. The point in limine raised by the applicant to the effect that the 1st -4th respondents did not comply with Rule 59 (8) be and is hereby upheld. Pursuant to the point in limine raised by the 1st-4th respondents, the present application be and is hereby struck from the roll. Pursuant to the point in limine raised by the applicant, the opposing papers filed by the 1st -4th respondents are hereby expunged from the record. There shall be no order as to costs. From my reading of the court order, the application under HCH1944/24 was struck off the roll for the applicant’s failure to comply with Rule 39 (4) of the High Court Rules. If I have correctly understood the position of the law as enunciated in Bindura Municipality supra, Chinganga supra and Binga Rural District Council supra, then where an applicant is foul of compliance with the rules, such an application is fatally defective. On the authority of Bindura Municipality supra, my view is that an application for reinstatement is not the appropriate remedy, but the appropriate remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh application. The first to fourth respondents argue that since the applicant has deposed that it seeks to address the shortcomings in HCH1944/24, then it ought to rectify the defect and seek reinstatement of that application. In addition to the observations I have already made above in light of the jurisprudence of this jurisdiction, I find the respondent’s argument untenable because, firstly, the meaning ascribed to ‘struck off the roll’ by Practice Direction 3 of 2013 is clear. The term is used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place. I do not want to fathom that the respondents are arguing that a fatally defective application can simply be reinstated. Such a position is not supported by the law. In the words of GUVAVA JA in Bindura Municipality supra at 238G-H: “Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of decisions of this Court. The leading case in this regard is the case of Jensen v Acavalos 1993 (1) ZLR 216 at 220 B (S) where KORSAH JA stated as follows: “… a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, it must be struck off the roll….” It is my view that these seminal words apply with equal force to fatally defective applications. A fatally defective application is a nullity. A nullity cannot be reinstated. WHETHER OR NOT THE APPLICATION HAS BEEN MADE OUT OF TIME As for the preliminary point that the application ought to have been filed within 30 days, the first to fourth respondents did not motivate it in their heads of argument and in oral submissions, but for completeness, I state that no legal basis for this objection has been laid by the first to fourth respondents. I have found none. In that regard, that preliminary point seems to have been raised as a matter of fashion. It is unmeritorious and I accordingly dismiss it. I move now to consider the merits of this matter. WHETHER OR NOT THE APPLICANT IS ENTITLED TO THE RELIEF SOUGHT The applicant has made a composite application for condonation, upliftment of the bar and reinstatement of withdrawn pleadings. Such a procedure is not alien in our jurisdiction. In Dewan v Nyathi & Ors HB 84-04, the court, which was seized with a composite approach for upliftment of the bar and rescission of default judgment, commented that such a procedure is founded on usual practice because the explanation necessary for the default overlaps to a large extent with that of the upliftment of the bar. In Read v Gardner & Anor 2019 (3) ZLR 575 (S) at p581G, the court remarked that there is nothing in principle which precludes the composite adjudication of applications, especially as the considerations to be applied in the determination of the composite applications are virtually identical. This is also expedient for the purposes of expediting the finalisation of such matters. In this matter, the first to the fourth respondents have not taken issue with the composite application. Having made these observations, I turn to deal with the merits of the composite application. A long standing principle of our law is that a party who fails to comply with the rules of this court should apply for condonation as soon as they become aware of the non-compliance, giving a fully detailed, reasonable and adequate explanation for the failure to comply with court rules: Chiweza & Anor v Mangwana & 4 Ors HH186-17 at p. 4. A critical element to note is that in giving this explanation, such an applicant must take the court into his confidence and give an honest account of his default to enable the court to make an informed decision whether to grant the indulgence he seeks: Zimslate Quartzite (Pvt) Ltd & Ors v CABS SC43-17 at p. 17. Essentially, a party seeking condonation and extension of time must, of necessity, satisfy the court that there is a valid and justifiable reason as to why they failed to comply and why that failure should be condoned. Regardless of the prospects of success, a court may refuse to grant the indulgence of a condonation where it forms the view that the explanation for the non-compliance with the rules is unacceptable: Lunat v Patel SC 47-22 at p. 6. Thus, in order to succeed, the court considers the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success: Mzite v Damafalls Investment (Pvt) Ltd & Anor SC 21-18 at p 2. The court also considers the possible prejudice to the other party, the need for finality in litigation, the importance of the case, the convenience of the court and the avoidance of unnecessary delays in the administration of justice: Read v Gardner & Anor supra at p578 E-G. These factors are not individually decisive, but a court is enjoined to cumulatively take them into account to arrive at a conclusion that is in the interests of justice to condone the non-compliance: Dzvetero & Anor v Sakunda Trading (Pvt) Ltd & Ors SC161-21at p3. In Dewan supra, the court noted that courts are generally inclined to grant applications for upliftment of the bar where a reasonable explanation for the applicant’s delay is forthcoming; the application is bona fide and has not been made with intent to delay the other party’s claim; where it appears that there has not been a reckless or intentional disregard of the rules of court; where the applicant’s case is not without foundation and the other party is not prejudiced to an extent which cannot be rectified by a suitable order as to costs. These requirements have been crystallised to fall under three broad categories, namely the explanation for the failure to act on time, the bona fides of the defence and prejudice to the other party: Buwu & Ors v Madondo N.O. & Ors HH660-23. For the withdrawn pleadings, the applicant must also show good cause to warrant their reinstatement. I pause momentarily to state that the requirements for removal of the bar and reinstatement overlap with the requirements for condonation. It is therefore convenient to deal with those requirements at once, as I hereby do. The extent of the delay and the reasonableness of the explanation for the delay At the time the applicant instituted this suit, it was a little over a year and two months out of the prescribed ten days for filing its opposing papers. The applicant argues that there was defective service of the provisional order, hence the dies induciae had not commenced to run even by 11 January 2024 when it filed the subsequently withdrawn notice of opposition and heads of argument. For a party seeking this court’s indulgence, I find that argument preposterous. The court order issued under HCH4608/23 is clear. It authorised service on either the applicant or its legal representatives. While it would have been ideal for the first to fourth respondents to serve the applicant’s legal practitioners, there was no bar on them effecting service in the manner they did by virtue of the order of this court. On 6 September 2023, it is the applicant’s erstwhile legal practitioners who noted the appeal against the provisional order. They could not have noted that appeal from the air. By parity of reasoning, the applicant’s legal practitioners were aware of the contents of the provisional order and made a conscious decision to appeal against it. It is the same order which informed the applicant to oppose the confirmation of the provisional order within ten days. It deliberately chose not to. There is no explanation why the legal practitioners then decided to file opposing papers, which had been deposed to on 30 November 2023, on 11 January 2024. There is also no explanation why the legal practitioners then decided to withdraw the pleadings at the time they renounced agency. The first and fourth respondents have argued that the applicant could have been advised that its application was futile and consequently withdrew the opposition. This is merely speculative. Ideally, it would have been prudent for the legal practitioners to depose to an affidavit admitting the fault and explaining in some detail what actually transpired (See Chibanda v City of Harare SC 83-21 at p.9). However, the applicant advises the uphill battle he faces in securing the affidavit, considering their now sour relationship. In my view, there is some basis in this submission. An attempt to get an explanation has already been sought through a letter by Shava Law Chambers, from whom the applicant sought an opinion. The letter was served on Tavenhave and Machingauta Legal Practitioners on 10 April 2024. It was not responded to. In my view, this letter only goes to show that the applicant indeed made efforts to get an explanation which it could place on file. It failed in those efforts. What I find curious, though, is that given the bleeps and blunders characteristic of the manner in which Tavenhave and Machingauta Legal Practitioners handled this matter, and as pointed out by the first to fourth respondents, the applicant has not reported this matter to the Law Society of Zimbabwe. But I digress. Coming back to the issue at hand, I am alive to the position of the law laid down in a long line of cases since Kombayi v Berkhout 1988 (1) ZLR 53 (S) that there is a limit beyond which a litigant cannot escape the results of its legal practitioner’s lack of diligence. I have no doubt in my mind that the conduct of the applicant’s erstwhile legal practitioners displays the height of tardiness. However, I also note that despite the lackadaisical approach, the applicant’s erstwhile legal practitioners took four months to file the opposing papers. In between, they had filed an appeal on 6 September 2023, which was then dismissed on 6 November 2023. On 30 November 2023, the applicant deposed to an opposing affidavit. The notice of opposition accompanying the applicant’s opposing affidavit is dated 8 November 2023, which is two days after the dismissal of the appeal. In my view, despite the tardiness, the papers on record demonstrate that the applicant was bent on opposing the matter. That, in my further view, should count in its favour. The applicant’s erstwhile legal practitioners then filed the now withdrawn opposing papers on 11 January 2024. On 6 and 7 February 2024, they advised the applicant’s representative of a virtual hearing and reservation of a judgment through WhatsApp communication. The first to fourth respondents have dismissed these communications on the basis that there is no proof that these communications were indeed between the applicant and its legal practitioners then. I am, however, of the view that I have not been given any cogent reason to disbelieve that the communication took place in the form deposed to by the applicant. Further, it has not been disputed that on 25 March 2024, it was served with Tavenhave & Machingauta Legal Practitioners’ renunciation of agency. On 26 March 2024, the applicant’s representative visited the High Court to make inquiries, following which it made the discoveries it did. It then sought an opinion from Shava Law Chambers, who in turn wrote to the applicant’s erstwhile legal practitioners on 10 April 2024, seeking an explanation from them. They were given six days within which to respond. They did not. On 26 April 2024, the application under HCH1944/24 was filed. In my view, the applicant has given a reasonable explanation to account for the time it took to eventually lodge the application under HCH1944/24. From the time the applicant discovered the status of its opposing papers on HCH4608/2, it took approximately 30 days to file its application. Considering what was happening in between, the delay cannot be said to be inordinate. The first to fourth respondents have invited this court to reckon the period of default from 5 September 2023 to 25 November 2024 when this application was filed. On the authority of Danzvara & Ors v City of Harare & Anor HH 860-22, though the argument is technically correct, sight should not be lost that between 26 April 2024 and 12 November 2024, there was an application for condonation pending before this court. While it is accepted that the applicant’s current legal practitioners were not diligent by filing a procedurally defective application in the first place, the applicant cannot be blamed for the time the matter was lying in the High Court Registry, because registry processes are beyond its control. I note that after the court order on 12 November 2024, the application before me was filed two weeks later, on 25 November 2024. To answer the question of whether or not such a delay can be regarded as inordinate, I am reminded of the words of Mathonsi J (as he then was) in Telecel Zim (Pvt) Ltd v POTRAZ & Ors 2015 (1) ZLR 651 (H) at p. 658H-659B, which, although were stated in the context of urgent matters are apposite:- “I find myself having to repeat what I stated in Prosecutor-General v Busangabanye & Anor HH-427-15 at p 3: “In my view this issue of self-created urgency has been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history we are subjected to endless points in limine centered on urgency which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.” [my emphasis] That said, I am of the view that a delay of two weeks reckoned from the date of the order striking off the first application for condonation cannot be said to be inordinate. Looking at the totality of the facts before me, I am of the view that even though the delay in some instances could be regarded as inordinate, the applicant has managed to account for what was happening in this matter. I find that under the circumstances of this case, the applicant cannot be said to have sat on its laurels. Prospects of success It is common cause that on the return date, the first to fourth respondents seek the following order: That the 1st and 2nd respondents’ (applicant and fifth respondent herein) application in terms of the Regional Town and Country Act section 26 (3) be and is hereby declared to be invalid. That the 3rd respondent (sixth respondent) herein be ordered to carry out a full investigation into the conduct of the 1st and 2nd respondents and produce a written report be submitted to the Administrative Court within 30 days of the granting of this order. That 1st and 2nd respondents pay applicants’ (first to fourth respondents herein) costs on a legal practitioner and client scale. It is also common cause that following the court order on 11 August 2023, the permit was issued on 21 August 2023. Under HCH4608/23, the first to fourth respondents seek to impugn an application which has already been granted. If the application has already been granted, there is merit in the applicant’s argument that the question of the validity of the application may have become moot, to the extent that the application has already been considered and disposed of through the issuance of a permit. I make these remarks alive to the decision of the Constitutional Court in Khupe & Anor v Parliament of Zimbabwe & Ors 2019 (3) ZLR 915 (CC) at p920 D-H, where it held that: “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot… The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of ‘such a nature that the decision sought will have no practical effect or result. ” Similarly, in Movement for Democratic Change & Ors v Mashavira & Ors 2020 (1) ZLR 797 (S) at p815B, the court noted that: “…a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable” I remain conscious of the fact that the validity or otherwise of the permit is another issue that stands to be decided at the appropriate time, and the parties have advised that such a process is already underway under HCH3922/24. However, for the purposes of the present application, the reason for the provisional order, which essentially is questioning the validity of the application for the permit, seems to have fallen away. If the application has been overtaken by events, the confirmation of the provisional order will have no practical effect. I am doubtful that the confirmation of the provisional order can operate to grant any actual relief to the first to fourth respondents. There is no longer any ‘flesh and blood’ dispute that the court can resolve, insofar as the validity of the application is concerned. While I appreciate that mootness does not constitute an absolute bar to the justiciability of HCH4608/23, and that the court can still exercise its discretion to hear a moot issue by reason of its significance and the need for an authoritative determination on the issue arising in that matter in the interests of justice, I am of the view that for the foregoing reasons, there is a sound and rational basis for this court to conclude that the applicant enjoys prospects of success. Prejudice to the parties / Balance of convenience On the question of prejudice, it has been argued on behalf of the first to the fourth respondents that they have not been paid their costs for the withdrawal of the pleadings under HCH4608/23. However, the first to fourth respondents miss the point. The question of prejudice relates to the prejudice they stand to suffer should the current application be granted. They have not placed sound reasons before the court; suffice to state that they are entitled to costs following the withdrawal. They ask, should this court grant the relief sought and reinstate the withdrawn pleadings, what will become of their costs? By their own submission, the taxation of those costs is under review. This court is not seized with the issue, and will not be drawn into answering the question of what will become of its costs. For the purposes of the current proceedings, the court is not aware of a legal position where a matter should be dismissed because a party’s taxed costs are undergoing review. At best, the court can, in the exercise of its inherent jurisdiction, stay proceedings pending payment of taxed costs where it is satisfied that the proceedings are vexatious or frivolous and where it is satisfied that the continuance will cause an injustice or embarrassment to the other party and the proceedings amount to an abuse of process: Stanbic Bank Zimbabwe Ltd v CSBBVERA Logistics (Pvt) Ltd 2016 (2) ZLR 521 (H) at p529H -530B. In casu, none of the above has been specifically pleaded, and such a stay has not been sought. In my view, the first and fourth respondents have not properly related to the question of prejudice, should the application be granted because there is none. The construction has been halted by an order of this court. The intended notice of opposition and heads of argument have been on record since 11 January 2024. If anything, it is the applicant who stands to be prejudiced should it be denied the relief it seeks, more so considering that at the end of the day, the ultimate aim is to enable the courts to achieve justice between the parties. It is necessary, in the interests of justice, that the real dispute between the parties be definitively ventilated. While there must be finality to litigation, I am of the view that, given the circumstances of this case, justice will have failed if the door is closed on the applicant. Therefore, after considering all the cumulative factors in this matter, I conclude that there is a basis to grant the applicant the relief it seeks. What remains for me is to determine the question of costs. I note that the applicant has prayed for costs on a punitive scale if any respondent opposes this application. I see no reason why the first to fourth respondents should be penalised for exercising their right to defend proceedings instituted against them. In my view, given that the application has been necessitated by the applicant’s default, an order that each party bears its own costs would be most equitable in the matter. DISPOSITION Consequently, it is ordered that: “The application be and is hereby granted. The applicant’s failure to timeously file its notice of opposition and heads of argument to the confirmation of the provisional order under HCH4608/23 be and is hereby condoned. The automatic bar in operation against the applicant in respect of the proceedings under HCH4608/23 be and is hereby uplifted. The applicant’s notice of opposition and heads of argument to the confirmation of the provisional order granted under HCH4608/23, which were withdrawn on 13th March 2024, be and are hereby reinstated into the court record for that matter. Each party to bear its own costs.” Mushure J: .......................................................................... Zvobgo Attorney’s, applicant’s legal practitioners Venturas and Samukange, first, second, third and fourth respondents’ legal practitioners

Judgment

AUGUSTUS CLOSE HOLDINGS (PVT) LTD v THE FARMAKAS TRUST and OTHERS (411 of 2025) [2025] ZWHHC 411 (10 July 2025)

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AUGUSTUS CLOSE HOLDINGS (PVT) LTD v THE FARMAKAS TRUST and OTHERS (411 of 2025) [2025] ZWHHC 411 (10 July 2025)

Headnotes

Judgment

Similar Cases

Discussion