Mhlasela Moyo and Thembelihle Moyo v Thandiwe Sibanda N.O. (In her capacity as Executrix Dative in Estate Late Mthokozelwa Sibanda) and Reason Ndabalime and The City of Bulawayo and The Assistant Master of the High Court N.O.

### Preamble
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HB 232./22
HC814/20
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MHLASELA MOYO

And

THEMBELIHLE MOYO

Versus

THANDIWE SIBANDA N.O.

(In her capacity as Executrix Dative in

Estate Late MTHOKOZELWA SIBANDA)

And

REASON NDABALIME

And

THE CITY OF BULAWAYO

And

THE ASSISTANT MASTER OF THE

HIGH COURT N.O.

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 6 & 15 SEPTEMBER 2022

Opposed Application

L. Chimire, for the applicants

H. Shenje, for the 1st respondent

2nd – 4th respondents no appearance

KABASA J:	This is an application for condonation for late filing for an application for rescission.  On 30 January 2020 this court granted an order against the applicants under HC 2726/19, which order is to the following effect:

“1.	That the purported agreement of sale entered into between the 1st, 2nd and 3rd respondent on 27th February 2016 in respect of stand 18247 Reynolds Drive, Barham Green, Bulawayo be and is hereby ordered null and void and therefore, set aside.

2.	That to the extent of such nullity as set out in paragraph 1 above leave be and is hereby granted for the applicant to evict the 1st and 2nd respondents and all persons claiming occupation through them from stand 18247 Reynolds Drive, Barham Green, Bulawayo.

3.	That the 1st, 2nd and 3rd respondents shall pay costs of suit on the attorney and client scale, jointly and severally, the one paying the other to be absolved.”

The 1st, 2nd and 3rd respondents in HC 2726/19 are the 1st and 2nd applicant and 2nd respondent in this application for condonation.

The order the applicants seek is couched as follows:

“1.	The application be and is hereby granted.

2.	Applicants are hereby condoned for late filing of the application for rescission of default judgment granted by the Honourable Court under HC 2726/19 on the 30th day of January 2020.

3.	Applicants are hereby granted leave to file their application for rescission of judgment granted on the 30th of January 2020 under HC 2726/19 within five (5) days of this order.

4.	Respondents opposed to this application are ordered to pay costs of suit.”

The background to this application is this:-

The applicants who are husband and wife entered into an agreement of sale with the 2nd respondent, Ndabalime wherein Ndabalime purported to be the seller of 18247 Reynolds Drive, Barham Green. Ndabalime duly received payment from the applicants.  The property belonged to Mthokozelwa Sibanda, a brother to the 1st respondent.  Mthokozelwa died on 25th September 2015 and Ndabalime sold the property on 24th February 2016.  As at the time of such sale Mthokozelwa‘s estate had not yet been registered with the 4th respondent.  It was subsequently registered and the 1st respondent who is a sister to Mthokozelwa was appointed the executrix dative and duly issued with Letters of Administration on 30th May 2019.

Following such appointment, the 1st respondent wrote to the applicants requesting that they vacate the property, which request was resisted.  The applicants who were at the relevant time represented by Mr. Z. C. Ncube of Ncube and Partners responded by letter dated 7 August 2019 advising the 1st respondent that the applicants had bought the property and were therefore in lawful occupation.  This response prompted the filing of the application under HC 2726/19 which was unopposed and was duly granted as an unopposed matter.

On 10 February 2020 the applicants’ erstwhile legal practitioner wrote to the 1st respondent acknowledging the order granted under HC 2726/19 and equally acknowledging that the applicants had been victims of fraud perpetrated by the 2nd respondent.  However, since the applicants had gone on to develop the stand, and incurred expenses it would be unfair for the 1st respondent to benefit without compensating the applicants.  A demand for payment of ZWL433 714, 60 was then made, which amount was said to represent costs incurred in developing the stand.

In the meantime a notice of ejectment was served on the applicants, which ejectment was to be effected on 20th February 2020.  On that same date, 20th February 2020 the applicants decided to file an application for rescission of the order under HC 2726/19 and did so as self-actors.  The application was opposed and on 18th May 2020 the applicants withdrew the application, ostensibly because it was defective.  On 23rd March 2020 they filed an urgent chamber application seeking a stay of execution and that application was adjudged not urgent and was consequently removed from the roll of urgent matters. Execution had already been effected at the time the application was filed.

On 28th May 2020 the applicants filed the present application in which they seek to be condoned so they can file an application for the rescission of the order in HC 2726/19.

It was important to give this background in order to put issues into their proper perspective. The application is opposed by the 1st respondent.  The other respondents did not file any papers, the 3rd and 4th respondents were cited in their official capacities and have no real interest in the matter.  The 2nd respondent is Ndabalime who disappeared after receiving the applicants’ money, his whereabouts are unknown and so his lack of interest speaks to his unsavory conduct.

In opposing the application, the first respondent had taken a point in limine which was quite rightly abandoned at the hearing of the application. I will not therefore comment further on the abandoned point in limine.

The thrust of the 1st respondent’s opposition is that there is no reasonable explanation for the delay in seeking rescission.  The initial application for rescission was filed on time but later withdrawn after a notice of opposition had been filed.  The applicants’ erstwhile legal practitioner was aware and acknowledged that the applicants had been duped by Ndabalime and their recourse was against him and a possible claim based on unjust enrichment.  The application under HC 2726/19 was not opposed because there was nothing to oppose and the legal practitioner could have opposed it and appeared in court had he entertained the view that the applicants had a defence. It is therefore not correct that the applicants were unaware of the set down date.

The applicants have no prospects of success at all as the sale agreement with Ndabalime was a fraud, so contended the 1st respondent.

At the hearing of the matter Mr Chimire for the applicants appeared to grudgingly concede that the applicants were duped, the sale agreement was a fraud and there was nothing speaking to the involvement of 1st respondent’s family in the sale of the property.  Everything had Ndabalime’s footprint and Ndabalime has conveniently disappeared.

Mr Chimire however sought to argue that the 1st respondent’s claim has prescribed as the sale was concluded in 2016 and it can safely be assumed that 1st respondent became aware of the sale in 2016 but took no action. This argument was meant to show that the applicants had bright prospects of success justifying the grant of the application for condonation.  Counsel was however unable to show that the 1st respondent was aware of the fraudulent sale of her late brother’s property before her appointment as an executrix dative, which appointment was in 2019. In any event, her appointment as executrix dative is what gave her the requisite authority to act on behalf of the deceased’s estate

The question that has to be answered is whether the applicants have made a case for the relief they seek.

Mr Chimire correctly articulated the requirements to be met in applications of this nature.

In Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313 the factors were given as:

Degree of non-compliance

Explanation for it

Importance of the case

Prospects of success

Respondent’s interest in finalizing of the judgment

Convenience of the court

Avoidance of unnecessary delay( See also Garise and Anr  v Warinda-Ndanda and Anor HH-287-18, Read v Gardiner and Anor SC-70-19)

In Kombayi vs. Berkhout 1988 (1) ZLR 53 (S) the broad principles were given as:

The extent of the delay, the reasonableness of the explanation of the delay and the prospects of success.

These 3 broad principles adequately capture the factors this court should consider in dealing with an application for condonation.  It is to these 3 principles that I will look in determining this matter.

The extent of the delay and the explanation thereof

The order which the applicants seek to have rescinded should condonation be granted was granted on 30th January 2020.  They were legally represented and their legal practitioner was aware of the set down date on the unopposed roll.  That legal practitioner had as early as 7th January 2020 accepted the legal position that Ndabalime had duped the applicants working in cahoots with an “unregistered” estate agent and that the applicants’ recourse lay against Ndabalime and the bogus estate agent.  That was why no notice of opposition was filed. In that letter which was filed in HC2726 the erstwhile legal practitioner wrote:

“As indicated, we accept the legal position as espoused in your client’s founding affidavit. The delay in filing the notice of opposition was due to the fact that our client was still trying to investigate the averments in your client’s affidavit and it does turn out that he was duped by the said Reason Ndabalime working in cahoots with an unregistered estate agent. His remedy lies against them jointly and severally.”

It is therefore not correct to allege that the applicants were not aware of the developments and subsequent granting of the order as an unopposed matter. In Govati Mhora v Emmaculate Mhora CCZ-5- 2022 the Supreme Court observed that candour is the bare minimum in an application that beseeches the court to grant its indulgence for non-compliance with the rules.  The court went on to cite Moroney v Moroney SC24/13 in which the court upheld the position that a litigant’s lack of candour impairs his argument.

These remarks apply with equal force in casu. The applicants are not being candid with the court, seeking to gain sympathy through misrepresentation. Their erstwhile counsel could only have known about the applicants’ investigations of the contents in the 1st respondent’s affidavit from the applicants. The acceptance thereafter that they had been duped was a fact the applicants were aware of. The opposition was never filed as a result of that realisation and so to suggest that they were not aware of the developments which led to the application being granted as an unopposed matter is reflective of lack of candour on the applicants.

The applicants had thereafter abandoned their legal practitioner and decided to take the matter into their own hands and filed an application for rescission which they later withdrew.

In Viking Wookwork P/L v Blue Bells Enterprises P/L 1998 (2) ZLR 249 (S) the Supreme Court stated that:

If a litigant does not seek condonation as soon as possible, he should give an acceptable explanation for the delay in seeking condonation.  (See also Sibanda v Ntini 2002 (1) ZLR 264 (S)).

This application was filed about 3 months out of time.  Granted as argued by Mr Chimire, the applicants had not been sitting on their laurels, but one must not ignore the circumstances of this case.  There had been various communication between applicants’ erstwhile legal practitioners and Mr Shenje.  The matter involves a deceased estate and the executrix dative was desirous to finalise its administration for the sake of the deceased’s children.  The filing of two applications which did not see the light of day, for whatever reason, cannot be looked at as reasonable in the circumstances.

The applicants’ conduct appeared to be informed by desperation, which saw them abandoning their erstwhile legal practitioner whose advice was sound and instructing a new legal practitioner all in a bid to rescue that which was incapable of rescuing.

The delay of 3 months looked at from this angle was therefore inordinate and the explanation thereof unreasonable.  More so when regard is had to the letter written to 1st respondent’s counsel, Mr Shenje dated 13 May 2020 wherein the applicants were, inter alia, lodging a claim for US$25 000 against the estate for the improvements effected on the property.

Instead of pursuing rescission if indeed they genuinely held the view that such a course was open to them, they were pushing for compensation for the improvements.  The application was only filed on 28th May 2020.

A delay of 3 months may be reasonable depending on the circumstances.  Given the circumstances of this case such delay was inordinate and unreasonable. The extent of delay must be looked at in light of the reason thereof. In Chidziva and Ors v Zisco Steel Co. Ltd 1997(2) ZLR 368(S), a delay of 5 months was held to be inordinate and the application for condonation was consequently dismissed.

I am therefore persuaded by Mr Shenje’s submission that the delay and the explanation thereof is unreasonable and not worthy of disturbing the order which is sought to be rescinded.

The prospects of success

Mr Chimire’s submission that the applicants have bright prospects of success appears to have been made for the sake of it.  In other words it was merely stating what one is expected to say in seeking condonation but not that such was correct in the matter at hand.

I say so because counsel quickly abandoned this contention when quizzed by the court on what was on record to support the contention that Ndabalime’s conduct had the 1st respondent’s family’s blessing. The agreement of sale has Ndabalime as the seller and a reading of that document makes no mention of him acting as an agent of the 1st respondent’s family.  Ndabalime is supposed to have been acting as an agent of a brother to the owner of the property yet that owner was already dead at the time of such sale and the property was to form part of the deceased’s estate, which estate was yet to be registered.

There is nothing remotely pointing to the fact that the 1st respondent’s family received the money which Ndabalime obtained from the applicants. This is so because Ndabalime duped the applicants for his own gain.

Mr Chimire must have had a Damascene moment and realized that the conclusion that Ndabalime perpetrated a fraud and duped the applicants is inescapable and so abandoned this argument.  Counsel then zeroed in on prescription, contending that the 1st respondent’s claim has prescribed and so this argument was available to the applicants assuring them of success in an application for rescission.

The applicants’ first interaction with the 1st respondent was when she wrote to them referring to them as “The occupants” and asking them to vacate the property.  That letter received a response in August 2019.  It can safely be concluded therefore that the 1st respondent’s letter which is undated was written round about that time.  She had been appointed executrix dative in May 2019, giving her authority to act on behalf of the estate.

In Van Brooker v Mudhanda and Anor &Pierce Mudhanda and Anor SC-5-2018, the Supreme Court per GOWORA JA (as she then was) stated that:

The party who alleges prescription must allege and prove the date of the inception of the period of prescription.  Generally, prescription starts to run as soon as the debt becomes due.

Mr Chimire’s contention that the 1st respondent can be presumed to have known about the cause of action in 2016 was a supposition based on nothing. There are therefore no prospects of such an argument succeeding.

One Precious Sibanda who the applicants contend is a wife to Mthokozelwa and whose affidavit to the police stating when she became aware that there were people at the property is hardly proof that the 1st respondent, who described Precious as one of the many women the deceased sired children with, also became aware of the fraudulent sale at the same time. Precious’s assertion that she became aware sometime in 2016 cannot be taken to mean the 1st respondent equally became aware of the matter as at that date. Precious does not suggest that she advised the 1st respondent of this development.

I am persuaded by Mr Shenje’s submission that there is nothing to suggest that the 1st respondent was aware of the fraudulent sale until August 2019 when she wrote to the occupants asking them to vacate the property.  The issue of prescription which the applicants appear to have hung their hopes on is no life line in the circumstances.

That said, there are no prospects of success to talk about.  Condonation is not granted for the mere asking.  To grant condonation in this matter is tantamount to granting it just because it has been asked for.  To do so would be a failure to properly exercise my discretion.

The 1st respondent must be allowed to proceed with the administration of the estate and should the applicants be inclined to pursue a claim of unjust enrichment that is entirely up to them.

It is not convenient to the court to unnecessarily prolong matters by granting condonation so as to allow litigants to re-open cases which ought to be regarded as closed.  No meaningful purpose can be achieved in doing so. The 1st respondent has been prejudiced due to the multiplicity of suits and will continue to be prejudiced if condonation is granted for the sake of it. Mr. Shenje’s assertion that the deceased estate has nothing except this immovable property and the 1st respondent is having to fund the costs of defending litigation from her pocket was not controverted. The 1st respondent must be allowed to benefit from the finality of the judgment in HC2726/19. There is need for finality to litigation. (Masulani v Masulani HH -68-03)

I posed a question earlier as to whether the applicants have made a case for the relief they seek.  The answer is in the negative.

Turning to the issue of costs, I take the view that the applicants’ conduct was informed by a sense of desperation and one cannot hold it against them when a legal practitioner gave them some hope which they decided to explore.

Their erstwhile legal practitioner had given them wise counsel but as layman a different view from another legal practitioner gave them hope.  This cannot amount to conduct deserving of censure.

Costs are within the discretion of the court and I find nothing in the applicants’ conduct deserving of censure.

I am therefore persuaded by Mr Chimire’s submission that a case for punitive costs has not been made.  Costs will however follow the cause.

In the result, I make the following order:

The application for condonation for late filing of an application for rescission be and is hereby dismissed.

The applicants are to pay costs of suit at the ordinary scale.

Liberty Mcijo & Associates, applicants’ legal practitioners

Shenje & Company, 1st respondent’s legal practitioners