Edith Madzingsu Mtetwa v Herbert Mtetwa and Farai Munyamani and Marcia Tariro Mswazi N.O and Righthaus Realty and Master of the High Court and Registrar of Deeds Harare

### Preamble
1
HH 632 - 25
HCH 5670/23
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EDITH MADZINGESU MTETWA

versus

HERBERT MTETWA

and

FARAI MUNYAMANI

and

MARCIA TARIRO MSWAZI N.O

and

RIGHTHAUS REALTY

and

MASTER OF THE HIGH COURT

and

REGISTRAR OF DEEDS HARARE

HIGH COURT OF ZIMBABWE

MHURI J

HARARE; 6 October & 15 October 2025

Opposed Application

Advocate B Mudhau, for the applicant

D Matimba, for the first respondent

F Nyakatsapa, for the second respondent

No appearance for third, fourth, fifth and sixth respondents

MHURI J:    This is a court application in terms of r59 of the High Court Rules, 2021.The applicant seeks an order in the following terms as per her Draft Order:

“1. 	The appointment of second respondent in terms of Letter of Confirmation ADM

01/21 as Applicant's curator bonis be and is hereby set aside.

2. 	Third respondent be and is hereby removed as executrix dative of Estate Late 	Peter Mutaniso Mtetwa and in her place Applicant be and is hereby reinstated 	as Executrix to the Estate late Peter Mutaniso Mtetwa Dr 3166/2003.

3. 	All decisions made by the second respondent in his capacity as curator bonis, 	on behalf of applicant, be and are hereby set aside.

4. 	All decisions made by the third respondent in her capacity as executrix dative 	of estate late Peter Mutaniso Mtetwa DR3166/2003 be and are hereby set aside.

5. 	The sale of Stand 14028 of Salisbury of Salisbury Township Lands held 	under Deed of Transfer No. 3090/1996 through fourth respondent to fourth 	respondent's principal be and is hereby set aside and if transfer had gone 	through, the deed of transfer be and is hereby cancelled and Deed of transfer 	No. 3090/1996 be and is hereby reinstated.

6. 	Second respondent be and is hereby ordered to give a detailed account of all 	transactions that he carried out on behalf of Applicant and hand back to 	Applicant all 	her documents and movable property within ten days of this 	order.

7. 	The first second and third respondents be and are hereby ordered to pay costs 	of suit on a legal practitioner and client scale.”

The brief background facts to this application are that first respondent is the biological son of the applicant and the deceased. When applicant’s husband died his estate was registered by the applicant. At the time of applicant’s husband’s death, they had a matrimonial home No 3 Snipe Avenue, Mount Pleasant Harare (the Mount Pleasant property). The deceased through a will bequeathed the Mt Pleasant property to first respondent, his son. It was after registering the estate that applicant became aware of the will since she was appointed executor of same. The estate was wound up in 2017 but applicant was unable to clear the Master’s fees. In 2021 the applicant was diagnosed with a bipolar condition and was placed at Athol Evans Old People’s Home where she stayed for 2 years. A curator bonis and curator ad litem were appointed to help applicant manage her affairs and represent her interests. Because of the applicant’s condition she was removed as an executor to her late husband’s estate and third respondent assumed the role of the executor. In 2022, applicant was informed by the second respondent that the Mount Pleasant property was being rented out and the proceeds used to pay for the applicant’s upkeep at Athol Evans Old Peoples Home. Later that year, applicant was informed by her erstwhile Legal Practitioners that the Mount Pleasant property was sold by fourth respondent.

At the commencement of the hearing applicant raised two preliminary points to wit, that the third respondent is barred for failure to file Heads of Argument and that there is no proper opposing affidavit by third respondent as the affidavit has a computer-generated date. The second respondent also raised a preliminary point to the effect that the application is improperly before the court as there is no certificate of service filed on record.

I heard the parties on all the preliminary points raised. I will first consider the preliminary point raised by second respondent and supported by first respondent relating to an improper application before the court. This decision is based on the fact that should this point be held to be well taken it follows that there is no application before the court.  It will therefore be futile to consider the rest of the preliminary points.

In addressing the court on the preliminary point, it was second respondent’s submission that the application is improperly before the court as there is no certificate of service filed on the record. Mr Nyakatsapa argued that the applicant did not file proof of service with the Registrar as is required by R58 (14) of the High Court Rules, 2021. The wording of R58 is peremptory and failure to adhere to it renders the application fatally defective. Praying for the striking off of the application, second respondent relied on the cases of Gappah v Mahere HH 633-22 and Moyo v Zvoma & Ors SC28/18.

The first respondent associated himself with the preliminary point as raised by the second respondent. Mr Matimba contended that a fatal non-compliance with the rules cannot be condoned or amended as articulated in the case of Jansen v Alcavolos 1993(1) ZLR 216(S) and Hattingh v Pienaar 1977 (2)   SA   182 (O). It was first respondent’s submission that unlike for applicant there is no bar for failure to file a certificate of service by the respondents, and that for failure by respondents to file a certificate of service the applicant suffers no prejudice.

In response, it was applicant’s submission that the pleadings on record were filed before the advent of the IECMS on 31 August 2023 hence the record was uploaded into the system by the Registrar. The certificate of service was filed and misplaced by the Registrar. Applicant contended that this was a double-edged sword as R59 (8) also places upon the respondents an obligation to file a certificate of service, which certificate of service was not filed by the respondents. No party suffers prejudice as a result of applicant’s failure to file a certificate of service. The applicant implored the court to consider the issue holistically arguing that the Rules are made for the court and not vice-versa.

Rule 58 (14) and (15) of the High Court Rules, 2021 regulates the requirements for filing of an application and provide as follows:

“(14) Where an application made in terms of this Part is to be served on the other parties, the applicant shall, within 5 days of service of the application, file with the Registrar proof of service of the application on the other parties.

(15) Where, for any reason, proof of service is not filed with the Registrar in the manner and time specified, the application shall be deemed to be abandoned for that reason and the Registrar shall accordingly notify the parties” (underlining my own)

The Supreme Court in Shumba & Anor v The Zimbabwe Electoral Commission & Anor SC 11/08 at p 14 interpreted the use of the word “shall” as follows:

“It is the generally accepted rule of interpretation that the use of peremptory words such as “shall” as opposed to “may” is indicative of the legislature’s intention to make the provision peremptory.”

Further, in Mudzuri & 6 Ors v Movement For Democratic Change (TSVANGIRAI) & 3 Ors HH 431-23 at p 5 Munangati Manongwa J held;

“If courts do not stamp their authority by emphasizing the importance of complying with the rules, legal practitioners will continue with the lackadaisical approach to drafting and compliance with rules which cannot be tolerated”

In Combined Harare Residents Association and Anor v Zimbabwe Electoral Commission & Anor HH 286 - 25 at para25 the Court held;

“The peremptory provisions of rule 58(14) thus require that the applicants ought to have filed their certificates of service within five days after the date of service of the application on the respondents.”

The court has also pronounced on the consequences of non-compliance with peremptory provisions of the rules as held in Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, wherein it was held that the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings effected. Thus, the non-compliance with the peremptory provisions of the rules or statute would render the pleading fatally defective and therefore, a nullity.

The same position was reiterated by Kabasa J in Nyeve & Anor v Sibanda & Ors HB 31/24 at p 3 where the court dealing with the now repealed r 58(8) and (9) held that:

“A failure to comply with this rule meant that the application was deemed abandoned and consequently deemed dismissed. There was therefore no application before the court.”

See Minister of Mines & Mineral Development & Anor v Fidelity Printers & Refiners (Pvt) Ltd & Anor CCZ 9/22 at p 14, where the court stated:

“The court's rules regulate access to this or any other court. The need to pay regard to the rules when instituting proceedings was emphasised in Mupungu v Minister of Justice, Legal and Parliamentary Affairs CCZ 07/21, where this court stated that: “One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited. To conclude this aspect of the matter, I am satisfied that the proceedings a quo were fatally defective and constitute a nullity for failure to comply with r 18 of the High Court Rules….”

In casu, the certificates of service are not filed on the record, no proof of service is filed of record. This is in defiance of the peremptory Rule 58 (14), of the High Court Rules 2021, rendering the application improperly before the court as it is deemed abandoned.

A submission from the bar by Advocate Mudhau that the certificates were filed before the introduction of the IECMS and were misplaced by the Registrar is totally hard to accept. If they were filed as hard copies, why would the Registrar out of all the other documents misplace only the certificates of service. Why did he not seek the indulgence of the Court to produce copies of same from his own records to prove that they were indeed filed. Further, the submission that the respondents were also equally barred for not filing their certificates of service is also without merit. Non-compliance with R58 (14) which obligates applicant to file a certificate of service carries with it a sanction in terms of subrule (15) whereas R 59 (8) is not similarly worded. The bar against respondents only applies where respondent has failed to file a notice of opposition and opposing affidavit in terms of subrule (8) thereof.

It is for the foregoing that I find the preliminary point raised by the second respondent regarding the fate of this application for failure to comply with R 58 (14) with merit and must be upheld.

Having upheld 2nd respondent’s point in limine, I find it unnecessary to determine the points raised by the applicant.

In the result I make the following order: -

That the application be and is hereby struck off with costs.

Mhuri J: ………………………………………………………

Mundia & Mudhara Legal Practitioners, applicant’s legal practitioners

Matipano & Matimba, first respondent’s legal practitioners

Mutonhori Attorneys, second respondent’s legal practitioners