Abisha Njani & Bishperp Enterprises (Private) Limited & Perpetua Njani v Tichafa Brian Chikasha

### Preamble
1
HH 658-25
HCH 2992-25
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ABISHA NJANI

And

BISHPERP ENTERPRISES (PRIVATE) LIMITED

And

PERPETUA NJANI

Versus

TICHAFA BRIAN CHIKASHA

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE 19 September 2025

Application for leave to appeal

S. Kuchena for the applicants

N. Tonhodzai for the respondent

DUBE-BANDA J:

[1] This is an application for leave to appeal the judgment and order issued on 13 June 2025. For ease of reference and convenience, the parties shall, where the context permits, be referred to by their names. In the matter under case number HC 3614/23, Tichafa Brian Chikasha (“Chikasha”), sued out a summons against Abisha Njani, Bishperp Enterprises (Private) Limited (“company”), and Perpetua Njani. In case number HCH 5284/24, Chikasha filed a chamber application seeking that the bar in HC 3614/23 be removed, and all the pleadings and documents filed after the automatic bar be deemed to be properly before the court, and that he be granted leave to file his replication and bundle of documents. The application was opposed.

[2] The background leading to the chamber application under case number HCH 5284/24 was that on 1 June 2023, Chikasha sued out a summons in HC 3614/23 against Abisha Njani and the company, who entered an appearance to defend and filed a plea on 25 July 2023. Perpetua Njani was later joined to the action, as the third defendant, and she filed her plea on 17 May 2024. On 22 May 2024, Chikasha filed his replication and joinder of issue with Perpetua Njani. Thereafter, the parties filed all documents in preparation for a pre-trial conference, and on 2 September 2024, the parties filed a joint pre-trial conference minute.

[3] The issue in the matter under case number HCH 5284/24 was about Chikasha’s failure to file his replication in answer to Abisha Njani and the company’s plea. The chamber application in HCH 5284/24 was argued, and the judgment is in Tichafa Brian Chikasha V Abisha Njani & Bishperp Enterprises (Private) Limited & Perpetua Njani HH-354-25. I granted the chamber application, and the order is couched as follows:

“In the result, I order as follows:

The bar operating against the applicant (Chikasha) in HC 3614/23 be and is hereby removed.

The applicant (Chikasha) to file his replication in HC 3614/23 within ten (10) days of this order.

There is no order as to costs.”

[4] In this application, Abisha Njani, Bishperp Enterprises (Private) Limited, and Perpetua Njani (“the applicants”) sought leave to appeal the judgment in Tichafa Brian Chikasha v Abisha Njani & Bishperp Enterprises (Private) Limited & Perpetua Njani HH-354-25. After hearing the parties, and in an ex-tempore judgment, I dismissed the application for leave to appeal. The applicants have requested written reasons for the dismissal of their application for leave to appeal. These are they.

[5] It is trite that leave to appeal may only be granted where the judge or court concerned is of the opinion that the appeal would have a reasonable prospect of success, or that there is some other compelling reason why the appeal should be heard, including conflicting judgments on the subject matter or matter under consideration.  See Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2. In S v Mutasa 1988(2) ZLR 4(S), it was held that the test to be applied when considering such an application is whether the applicant has a reasonable prospect of success.  If he has, then leave to appeal should be granted.

[6] What constitutes reasonable prospects of success was pronounced in the case of Smith v S, 2012 (1) SACR 567 (SCA) para 7 as:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.  In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal that are not remote but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorized as hopeless.  There must, in other words, be a sound rational basis for the conclusion that there are prospects of success on appeal.”

See Chikurunhe v Zimbabwe Financial Holdings SC 10-18; Kereke v Maramwidze and Anor SC 86/21; Madamombe v The State SC 117/21.

[7] The core of the applicants’ complaint is that I did not consider the prospects of success of the replication. My view is that the prospects of success of a replication, in an action matter, cannot be assessed in isolation, i.e., a replication is part of the pleadings, from the summons, declaration, etc. To say a replication, standing alone, has no prospects of success, would be a task that would be close to impossible. Therefore, in an application, whether for removal of bar, or condonation to file a replication, prospects of success recede to the remote background. It cannot be said that a failure to address prospects of success is fatal to an application for the removal of a bar to file a replication.

[8] In addition, the argument that the draft replication was backdated has no substance. I repeat, this court cannot, without cogent evidence, find that a legal practitioner, who is an officer of the court, backdated a court process for the purposes of misleading the court. The failure to file a replication in respect of Abisha Njani and the company’s plea was a result of a genuine mistake. On the facts, Chikasha’s failure to file a replication within the time allowed by the rules of this court was not wilful. I repeat, the applicants will suffer no prejudice in the prosecution of their defence, by an order allowing Chikasha to file his replication out of the time allowed by the rules of this court. This is so for the basic and elementary reason that, after a replication, no subsequent pleadings can be filed in answer to the replication. The pleadings are considered closed at that stage in terms of r 44 of the High Court Rules, 2021. In any event, the main matter is ready for a pre-trial conference before a judge; in the event the replication raises issues of concern to the applicants, such issues can be considered at the pre-trial conference and referred for determination at trial.

[9] Granting leave is not about giving a litigant a second chance to re-cycle meritless arguments. The intended appeal should have reasonable merits so that a different result would be attained. In casu, there is no sound rational basis for the conclusion that there are prospects of success on appeal. In addition, the workload in the judiciary is ever-increasing, and a judge who considers any application for leave to appeal to the Supreme Court has a judicial duty to ensure that unmerited appeals do not become part of the workload of the Supreme Court. Appeals without merit should simply not be granted leave to appeal.

[10] There is no reason to deviate from the usual rule that costs follow the result. The respondent is entitled to his costs. It is for the above reasons that I dismissed this application with costs.

L.T. Muringani Law Practice, applicants’ legal practitioners

Machingura Legal practitioners, respondent’s legal practitioners