Dunhuramambo (Private) Limited T/a Zambezi Cruise AND Safaris Versus T. P. Mashayamombe N.O. AND Charles Nikobasa

### Preamble
1
HH 606 - 25
HCH 2647/25
---------


DUNHURAMAMBO (PRIVATE) LIMITED t/a ZAMBEZI CRUISE AND SAFARIS

versus

T. P. MASHAYAMOMBE N.O.

and

CHARLES NIKOBASA

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE; 2 October 2025

Opposed Application

J Wood, for the applicant

O Mushuma, for the 2nd respondent

No appearance for 1st respondent

MAMBARA J:    This is an application for condonation of non-compliance with the rules and for the re-enrolment of Case No. HCH 1468/24, which matter was struck off the roll on 30 March 2025. The applicant seeks an order in terms of the draft filed under Case No. HCH 2647/25, essentially condoning his failure to prosecute Case No. HCH 1468/24 timeously and reinstating that matter on the roll for hearing. The respondent opposes the application.

The genesis of this matter is a court application in Case No. HCH 1468/24, wherein the applicant sought to review a Taxing Officer’s decision on costs. That application was fatally out of time and procedurally defective. In particular, it was filed outside the 14-day period prescribed for reviews of taxation and was not properly served on the Taxing Officer as required by the High Court Rules. When the matter came before the court on 9 January 2024, the judge seized with the matter noted the non-compliance and, at the respondent’s urging, struck the matter off the roll, per judgment HH 278/25 dated 30 April 2025. No order on the merits was made. The matter was simply removed from the court’s roll due to these defects.

The consequence of that order was that Case No. HCH 1468/24 ceased to be before the court. In terms of Practice Direction 3 of 2013, where a matter is struck off the roll for failure to abide by the rules, the defaulting party is afforded thirty (30) days to rectify the defect, failing which the matter is deemed abandoned. The applicant did not rectify the defects or re-enrol the matter within the 30-day window. It is common cause that more than a year elapsed after the strike-off without the matter being set down again. Consequently, by operation of the Practice Direction, the matter was treated as abandoned. The applicant now applies for condonation of this non-compliance and for leave to reinstate the matter, as expressly contemplated by the proviso to Practice Direction 3 of 2013 (paragraph 5), which permits a judge, on application and for good cause shown, to reinstate an abandoned matter.

The present application, Case No. HCH 2647/25, was instituted on 6 June 2025. The applicant explains that the inordinate delay in filing the application for review was caused by a series of mishaps. His previous corresponding legal practitioners allegedly misinformed him that the issue of taxation was still under consideration, leading him to believe the case was still alive. By the time he discovered the true position, the time for filing a review application had long expired but he still mistakenly believed that he was still within time. When the application for review came up for hearing that is when he learnt that it was filed out of time. An attempt to make an oral application for condonation was met with fears resistance from the 2nd respondent resulting in the court striking the matter off the roll hence the present application.

The draft order seeks to condone two facets of non-compliance: (a) the late filing of the original review application (which gave rise to the strike-off), and (b) the late re-filing of the matter beyond the 30-day grace period. It also prays for reinstatement of Case No. HCH 1468/24 to the roll for hearing on the merits.

The applicant’s counsel submits that the court has the jurisdiction to grant the relief notwithstanding the lapse of time. She argues that a matter struck off the roll is not decided on the merits and can be revived by proper application. In this regard, Practice Direction 3 of 2013 is cited as authority that an abandoned matter may be reinstated upon good cause shown. Counsel contends that the applicant has shown good cause. The explanation for the delay, though lengthy, is said to be reasonable in the circumstances, and the applicant has not sat on his laurels deliberately. In support of condonation, the applicant also emphasizes that he has strong prospects of success in the underlying review. He points to several glaring irregularities in the taxed bill of costs which he seeks to challenge – for example, multiple communication entries charged at a minimum of five minutes each even where the communications took only one minute, among other alleged improprieties. Given these issues, the applicant contends that the review has merit and it would be in the interests of justice to allow it to be heard.

The respondent, in opposition, takes a strict view of the applicant’s non-compliance. A preliminary point raised is that this court is functus officio. The respondent argues that when the matter was struck off on 4 March 2024, the court effectively pronounced itself and became functus officio, such that it cannot now re-enrol the case or grant condonation at this late stage. In support of this, the respondent points to Rule 72(26) of the High Court Rules, 2021 which governs the time frame for filing a taxation review. The argument is that because the applicant’s review was not filed within the 14 days stipulated, and no condonation was sought at that time, the subsequent strike-off and lapse of the matter render the dispute res judicata or otherwise beyond resuscitation. According to the respondent, once the 30-day rectification period expired, the matter was definitively abandoned and the court’s hands are tied.

The respondent further submits that even if the court has jurisdiction to entertain the application, the applicant has not met the requirements for condonation. They characterize the applicant’s explanation for the delay as patently inadequate and lacking in detail. In particular, the respondent notes that the applicant failed to act for some 14 months after the strike-off, yet provides no satisfactory account for this prolonged inertia. Merely partially blaming former corresponding legal practitioners, in the respondent’s view, is insufficient. A diligent litigant would have followed up on his case. The respondent cites the principle that there is a limit beyond which a litigant cannot escape the consequences of his attorney’s lack of diligence or the insufficiency of the explanation tendered. It is argued that the applicant’s conduct falls squarely on the wrong side of that limit. Moreover, the respondent contends that the applicant’s prospects of success in the main matter are not as “excellent” as claimed. The taxed costs, it is said, were properly assessed, and the applicant’s complaints, such as about time units charged, can be explained within the broad discretion of the Taxing Officer. The respondent maintains that the applicant’s focus on the merits cannot cure the procedural defaults. Procedural rules, they argue, are there to be obeyed and not to be treated as mere technicalities.

Issues for Determination

From the foregoing, the key issues to be decided are:

whether this court is precluded from granting the relief by virtue of the functus officio doctrine or any provision of the law, specifically Rule 72(26) of the High Court Rules, 2021 and Practice Direction 3 of 2013, and if not,

(ii) whether the applicant has shown good and sufficient cause for condonation of his non-compliance and for the re-enrolment of the matter.

The latter issue entails an assessment of the applicant’s explanation for the delay and the prospects of success of the underlying case, weighed against the need to uphold procedural rules and the potential prejudice to the respondent.

I address first the question of whether the prior order striking HCH 1468/24 off the roll renders this court functus officio or otherwise incapable of entertaining the present application. It is settled in our law that an order striking a matter off the roll is not a judgment on the merits. Rather, it is a procedural disposition indicating that the matter, in its current form, is not properly before the court. As the Supreme Court noted in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S), if a court strikes a matter off, “the effect is that such a matter is no longer before the court”. The matter is removed from the roll, but importantly, it is not dismissed on the merits. This distinction is critical. Because a struck off case is not decided to finality, the court that struck it off is not functus officio in the sense of having exhausted its jurisdiction over the substantive dispute. The doctrine of functus officio primarily guards against a court altering or revisiting its own final judgments. See Andrew Kunaka and Anor v Secretary of Mines and Mining Development and Others HH 297/25 Here, there was no final judgment on the dispute. Only a refusal to entertain the matter due to procedural non-compliance.

Practice Direction 3 of 2013 buttresses this position by explicitly providing a mechanism for revival of struck off matters. Paragraph 5 of the Practice Direction states that where a matter has been struck off for failure to abide by the rules, the party in default has 30 days to cure the defect, failing which the matter is deemed abandoned, provided that a judge may, on application and for good cause, reinstate the matter on such terms as deemed fit. This provision makes it abundantly clear that a struck off matter is not jurisdictionally dead. The court retains a discretionary power to reinstate it, even after the 30-day period, if good cause is shown. In other words, the Practice Direction itself is an acknowledgment that the court is not functus officio in the strict sense and may re-engage with an abandoned matter upon a proper application.

The respondent’s reliance on Rule 72(26) of the High Court Rules is, with respect, misconceived in the context of this application. Rule 72(26) indeed sets a 14-day time limit for filing a court application to review a Taxing Officer’s decision (dies induciae running from the date of the taxation ruling). Non-compliance with that rule rendered the original review fatally defective hence the strike-off. But nothing in Rule 72(26) purports to extinguish the court’s power to condone a late review or to hear a reinstatement application. To the contrary, our rules elsewhere recognize the court’s inherent discretion to condone non-compliance with its rules in the interests of justice. Indeed, under the old rules, Rule 4C allowed the court to condone any departure from the rules for good cause, and under the current 2021 rules, that ethos remains. Practice Direction 3/2013, issued by the Chief Justice, must be read consistently with the rules and fills in the procedural framework for handling struck off and dormant matters. Thus, while Rule 72(26) made the applicant’s review application peremptorily out of time, it does not oust the court’s ability to grant condonation for that non-compliance. In fact, the respondent’s own arguments acknowledge that a condonation, albeit one they say should have been sought earlier, is the appropriate relief – which is precisely what the applicant now seeks. The question, therefore, is not one of jurisdiction but of discretion: whether the court, in the exercise of its discretion, should indulgently grant condonation and reinstatement after such a long delay.

It is necessary to address a related argument raised by the respondent, that a judge in the prior proceeding already “refused to consider” or implicitly refused condonation, thereby conclusively determining the matter. The record shows that at the hearing on 29 January 2025, applicant’s then-counsel made an oral request for condonation, which was not granted. The judge struck the matter off. The respondent contends that this amounted to a refusal of condonation on the merits, making the issue res judicata. I do not agree. An informal oral application from the bar, and a strike-off order as a result, cannot be elevated to the status of a reasoned judgment on condonation. In substance, the matter was removed for procedural defect, and no substantive rights were adjudicated. It would be unduly formalistic, and at odds with the spirit of Practice Direction 3/2013 to hold that the applicant is forever barred because his lawyer’s on-the-fly plea for condonation was not entertained. In Margaret Marange v Tafirenyika Kapende & Anor HH 123-15, for example, the High Court entertained a chamber application for condonation and reinstatement of an appeal months after that appeal had been struck off for being noted out of time. While the condonation was denied in that case, due to an excessive delay of nine months and no adequate explanation, the court’s willingness to hear the application confirms that a subsequent application is procedurally proper. I am therefore satisfied that this court is not precluded from considering the present application on its merits.

The court’s power to grant condonation is a discretionary one, to be exercised judicially. The guiding principles are well established in our case law. An applicant seeking condonation must show good cause for the indulgence. This entails giving a full, reasonable, and acceptable explanation for the failure to comply with the rules, and demonstrating that there are reasonable prospects of success on the merits of the case which one seeks leave to prosecute. The court will also weigh the length of the delay, the degree of non-compliance, and any prejudice to the other party, in the overall balance of fairness. No hard and fast rule can be laid down, but the court’s overriding consideration is the interests of justice.

It is trite that an application for condonation should be made as soon as the litigant becomes aware of the default. A party who lets time pass without promptly seeking redress must provide an even more compelling explanation for the delay. In Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) at 251C-D, the Supreme Court stressed that a litigant who finds himself out of time must act with urgency in seeking condonation, and if he does not, he must explain each period of delay that occurs thereafter. Moreover, our courts have repeatedly warned that while they are reluctant to penalize litigants for the negligence of their lawyers, there is indeed a limit to such indulgence. In Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C, a dictum echoed with approval in Kombayi v Berkout 1988 (1) ZLR 53 (S), it was observed that considerations of mercy cannot be allowed to become an invitation to laxity. At some point, the client must bear the consequences of his attorney’s dilatory conduct. These cautionary principles serve to underline that condonation is not a mere formality or for the asking. It is an exceptional measure, not a right, and the onus is squarely on the applicant to satisfy the court that the indulgence is warranted.

In light of the above principles, I turn to assess whether the applicant in casu has met the threshold for condonation. The delay here is two-fold: firstly, the delay in filing the original review (approximately 16 days outside the 14-day limit, by the respondent’s calculation); and secondly, the delay of about slightly over a month in bringing this condonation application after the matter was struck off. The first delay (16 days) is not negligible, but on its own it might have been excusable with a proper explanation. The second delay of over a month, although not inordinate, but the applicant was required to convincingly explain why it took so long to seek remedial action.

The applicant’s explanation can be summarized as follows: with respect to the application for review, the applicant’s counsel had mistakenly believed what his corresponding lawyer had told him about the state of the taxation matter. The corresponding lawyer had told counsel for the applicant that after the taxation proceedings on 9 February 2024 the Taxing Officer had advised the parties that she needed to collate all the information before compiling and issuing the taxed bill. No service of the taxed bill was made until 26 February 2024 and based on this date counsel then calculated the 14-day period within which to file the application for review. To the contrary the respondent’s counsel submitted that the bill was ready for collection on 10 February 2024. Apparently, this is the date the court also agreed with.

This explanation, while far from ideal, carries some weight. It reveals a litigant who was passively under a misapprehension rather than one who wilfully ignored the rules. I am mindful of the injunction that legal practitioner negligence does not automatically entitle a litigant to relief. However, this Court must also be alive to the realities: the applicant entrusted his case to professionals and was entitled to expect a basic degree of diligence. In the circumstances of this case, I find the applicant’s explanation to be reasonable and sufficient to explain the bulk of the delay. It shows no gross indifference or deliberate flouting of the rules by the applicant himself, but rather a regrettable series of lapses by those acting for him.

Furthermore, the merits of the underlying case strongly favour granting condonation. The applicant’s review of taxation is not a trivial or hopeless cause. He has raised substantial points that the Taxing Officer may have erred in law or principle. For instance, the record shows arguable irregularities such as billing in disproportionate time units and charges for correspondence that appear excessive. The applicant argues that the bill of costs was inflated by numerous entries charged at a flat 5-minute rate regardless of actual time spent, and other charges that may have been unwarranted. If proven, these issues could indeed warrant the High Court’s intervention on review of taxation. Notably, the respondent’s opposition did not squarely refute these specific complaints about the bill. Instead, the respondent’s focus was on the procedural aspects. This suggests that the prospects of success in the review are not fanciful. It would occasion a potential injustice were the applicant to be denied the opportunity to challenge a possibly improper costs award purely on a procedural technicality, especially when the procedural lapse is one that can be cured without undue prejudice to the respondent.

Speaking of prejudice, I do consider the position of the respondent. The respondent is understandably inconvenienced by the resurrection of a matter it thought had been laid to rest. However, apart from the general interest in finality, the respondent has not pointed to any specific prejudice it would suffer that cannot be ameliorated by an appropriate order as to costs or other conditions. The dispute at hand concerns money (taxed costs); it is not a case where evidence has gone cold or third-party rights have intervened. The respondent’s ability to oppose the review on the merits remains intact. Indeed, the respondent has already prepared heads of argument on the merits of the taxation review as evidenced by the draft papers before the court. In short, granting this application merely restores the parties to the positions they would have been in had the applicant complied timeously – i.e., ready to argue whether the Taxing Officer’s decision was correct or not. That, to my mind, does not impose any irreparable prejudice on the respondent.

Disposition

Condonation is an equitable remedy. In the final analysis, the court must engage in a balancing exercise. On one side is the need for rules and timely compliance – the lifeblood of orderly litigation. On the other side is the interest of justice – ensuring that, where possible, matters are decided on their merits and that a litigant with an arguably sound case is not non-suited due to a lapse that can be excused without injustice. In this case, the balance weighs in favour of the applicant. The delay, though protracted, has been satisfactorily explained in material respects. The applicant has demonstrated genuine remorse for the procedural missteps and has shown zeal in rectifying them once properly advised. Crucially, the substantive dispute carries merits warranting ventilation. The court is persuaded that this is a proper case to exercise its discretion in favour of condonation. It must be emphasized, however, that this decision does not condone the laxity of the applicant’s lawyers. The court’s indulgence here is granted because the interests of justice so dictate, and not as a matter of course. Legal practitioners are reminded that the “30-day rectification rule” in Practice Direction 3 of 2013 is to be taken seriously, and litigants would be well-advised to act within that window to avoid the very predicament that arose in this case.

In the result, the application for condonation and re-enrolment is granted. Accordingly, it is ordered that:

The late filing of application No. HCH 1468/24 be and is hereby condoned.

Case No. HCH 1468/24 is hereby reinstated on the roll. The Registrar of the High Court is directed to allocate a hearing date for the applicant’s court application for review of taxation Case No. HCH 1468/24 at the earliest available opportunity.

The costs of this condonation application shall be costs in the cause.

Mambara J: ………………………………..……………….

Warhurst Attorneys, applicant’s legal practitioners

Mushuma Law Chambers, 2nd respondent’s legal practitioners