Cecilia Moyo v Marko Dube (Being Executor of Estate Late Greater Martin Dube) & Anor & 2 Ors

### Preamble
1
HB 57/20
HC 3121/17
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CECILIA MOYO

Versus

MARKO DUBE

(Being Executor of Estate Late Greater Martin Dube)

And

MARY DUBE

And

DEPUTY MASTER OF HIGH COURT, BULAWAYO

IN THE HIGH COURTOF ZIMBABWE

MABHIKWA J

BULAWAYO 6 FEBRUARY & 21 MAY 2020

Unopposed Application

MABHIKWA J:	This matter appears to have been placed in motion court more than once.  In short, it does not comply with Order 32 Rules 257, 258 and 259 of the High Court Rules, 1971.

Applicant being a self actor, judges have attempted to explain in simpler terms perhaps to no avail.  Each time a matter is removed from the roll, the party bringing the matter or application, as in this case, is in effect being granted indulgence and time to remedy whatever defect there is before setting it down again in motion court.

In this case, the matter was removed from the roll by my sister judge Justice MOYO on 4 May 2019 and on 28 December 2019.  Applicant was advised that:

Her application did not comply with Order 32 Rule 257.

There had been no application for condonation, yet the Estate, being the subject matter of the application had been finalised some 13 years ago in 2006.

This in effect was explaining to her that the application also did not comply with Order 32 Rule 259 of the same rules of court.  On 6 February 2020, this application came up again in motion court.  This court noted the following:

That the queries by Justice MOYO had not been remedied.

The court drew the applicant’s attention to the contents of the very detailed Master’s report filed of record.

This court noted and pointed out that the application itself was a long confused application that does not state clearly and concisely what it is all about (Rule 257).

This court pointed out also that the application does not show at all where and how the Additional Assistant Master is alleged to have erred or acted contrary to procedure.

The Additional Assistant Master was himself not cited and served.

It should be noted that whilst it is acknowledged that on 2 January 2019, applicant obtained an order from this court wherein an application filed by Mary Dube (2nd respondent herein) under HC 565/18 was dismissed for want of prosecution, this does not mean that applicant’s application in casu should now succeed even if it be defective.

The “affidavit of service” at page 38 of the application referred to by applicant in her letter under reply was done on 27th, 28th and 30th November 2017 respectively.  It cannot continue to be used after all these other steps and after all these removals from the roll.  A matter removed from the roll, is out of the court system.  If it is resuscitated, then the other parties should be re-served.

The court order at page 5 of the application does not state that applicant is granted condonation or condonation to do what.  As it stands the remedy sought would be incompetent.