National Pharmaceutical Company of Zimbabwe (Pvt) Ltd v Florah Nancy Sifeku

### Preamble
1
HH 650-25
HCH 628/24
EX TEMPORE
NATIONAL PHARMACEUTICAL COMPANY OF ZIMBABWE (PVT) LTD
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EX TEMPORE

NATIONAL PHARMACEUTICAL COMPANY OF ZIMBABWE (PVT) LTD
versus
FLORAH NANCY SIFEKU

HIGH COURT OF ZIMBABWE
DEME J
HARARE, 16 and 21 October, 2025

Opposed Application

Mr. T. Dube, for the Applicant.
Mr. S.T. Mutema, for the Respondent.

DEME J: The Applicant approached this court seeking the condonation and upliftment of the bar. More particularly, the Applicant is seeking the following relief:

“1. The application for condonation and upliftment of bar (sic) for late filing of notice of opposition under HC 4502/23 be and is hereby granted.
2. The bar operating against Applicant for late filing its (sic) opposition under HC4502/23 be and is hereby uplifted.
3. Each party to bear own costs.”

In brief, the Applicant, in case number HCH4502/23, delayed filing the opposing papers and was consequently barred. Thus, the Applicant seeks the condonation that the opposing papers filed outside the dies induciae be deemed to have been properly filed. The Applicant also seeks an order that the bar operating against it in case number HCH4502/23 be uplifted.

The application was opposed by the Respondent who raised four points in limine. Firstly, the Respondent argued that the matter is now moot as a result of the Labour Court judgment which held that Mr. Dumba cannot purport to act as the Acting Managing Director. Mr. Mutema made an undertaking that he would upload the Labour Court judgment by 16 October 2025. The judgment was not filed by 17 October 2025. Mr. Dumba deposed to the opposing affidavit in case number HCH4502/23 which was filed outside the *dies induciae*. Mr. Mutema argued that this court cannot deem that opposing affidavit to have been properly filed due to that defect. In my opinion, the opposing affidavit of Mr. Dumba is not before me. This opposing affidavit will be debated in case number HCH4502/23. Determining the validity or otherwise of this opposing affidavit will pre-empt the matter under case number HCH4502/23. For this reason, the point in *limine* must be dismissed.

Further, the Respondent, by way of the second point in *limine*, argued that the application is incompetent as the Applicant is not seeking the extension within which to file their opposing papers. In my view, this point in *limine* was raised following the Respondent’s failure to appreciate that the Applicant is seeking the relief that the opposing papers filed outside the *dies induciae* be deemed to be properly filed. Under such circumstances, there is no need for seeking an order for extension of time within which the opposing papers may be filed. On this basis, this point in *limine* is unmerited and is consequently dismissed.

By way of a third point in *limine* the Respondent argued that the present application, being composite, is incompetent as the Applicant ought to have sought upliftment of the bar before seeking condonation in the draft order. However, Mr. Mutema was not able to establish any case law supporting his argument. Mr. Dube submitted that there is no specific order of reliefs where the composite application is brought before the court. I do agree with his submission. In the absence of any authority, I find no merit in Mr. Mutema’s argument. That marks the end of this point in *limine*.

In her last point in *limine*, the Respondent averred that Mr. Hwacha who deposed to the founding affidavit ought to have been authorized, through a resolution, by the Applicant. Mr. Dube submitted that this is a procedural application where a legal practitioner with the relevant knowledge of events and facts is allowed to depose to the affidavit. Reference was made to the case of *Minister of Defence, Security and War Veterans Affairs N.O. v Manyeruke and Anor*.

It was not disputed that the present application is a procedural application. It was not disputed that the Applicant’s legal practitioners were instructed by the Applicant to represent it in this matter. I would have a different view if there is a dispute of whether Applicant’s legal practitioners had lawful mandate to represent the Applicant. The Respondent’s legal practitioners served the Applicant’s legal practitioners with the main application on 10 July 2023 as they verily believed, though mistaken at the material time, that the Applicant’s legal practitioners had instructions from the Applicant. When the Applicant’s legal practitioners later got instructions to represent the Applicant, the Respondent did not doubt such relationship. For this reason, the point in limine is consequently dismissed.

On the merits, Mr. Hwacha averred on behalf of the Applicant that his law firm had no instructions of receiving the application in case number HCH 4502/23 when the law firm was served with the same matter. He further asserted that this was brought to the attention of the Respondent’s legal practitioners. He also affirmed that the Respondent’s legal practitioners agreed to the extension of dies induciae by two days. Mr. Hwacha alleged that his law firm only got instructions on 12 July 2023, two days after being served with the application in case number HCH4502/23. According to his computation, the dies induciae ought to have expired on 26 July 2023. The opposing papers were filed on 27 July 2023. Thus, Mr. Hwacha claimed that his client missed the agreed deadline by one day.

The Applicant further affirmed that the delay was caused by some logistical challenges in that the deponent to the opposing affidavit, Mr. Dumba, was in Mutare at the material time. He was only able to come to Harare on 26 July 2025 according to Mr. Hwacha. The Applicant asserted that there is a reasonable explanation why the opposing papers were not filed within the prescribed time lines. It further maintained that it enjoys some prospects of success in the main matter as the Respondent faces a statutory bar of continuing in office as the Managing Director of the Applicant by virtue of the provisions of the Public Entities Corporate Governance Act [Chapter 10:31].

On the merits, the Respondent argued that the Applicant failed to tender a reasonable explanation for the delay. She further affirmed that the Applicant does not enjoy some prospects of success in the main matter. The Respondent also alleged that the legal practitioners for both sides agreed to extend dies induciae by one day and not two days as alleged by the Applicant. The sole issue that arises for determination is whether the present application meets the essential requirements outlined in our jurisdiction.
 Since there are two applications which have been combined together, I have to examine the requirements of the two applications separately. I firstly will look at the requirements of application for condonation. Our legal jurisprudence is rich with case law dealing with the factors to be considered in applications for condonation. In the case of *Mahommed v Kashiri²*, the Supreme Court held that:

“The broad factors to be taken into account in an application of this nature have been stated in a number of cases and are now well established. They are the extent of the delay, the reasonableness of the explanation for the delay and prospects of success. See de Kuszaba-Dabrowski et Uxor v Steel NO 1966 RLR 60 (A) at 62 and 64; 1966 (2) SA 277 (RA); HB Farming Estate (Pty) Ltd & Anor v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T) at 134A-B; Kombayi v Berkhout 1988 (1) ZLR 53 (S) 57G-58A. Other additional but not exhaustive factors are the importance of the case, the respondent’s interest in the finality of the case, the convenience of the court and the avoidance of unnecessary delays in the administration of justice.”

It is not disputed that there were some discussions for the extension of the deadline of *dies induciae*. Only the contents of the finer agreement are being disputed. It was not disputed that the Respondent’s legal practitioners were advised that the Applicant’s legal practitioners had no instruction at the time of being served with the application in case number HCH4502/23. In my view, these factors constitute a reasonable explanation.

The Applicant, having been served with the application on 10 July 2023, ought to have filed the opposing papers by 24 July 2023. The Applicant managed to file the opposing papers three days later. This, in my view, is not inordinate delay. The Applicant’s argument in the main matter, being anchored on the interpretation of the appropriate provisions of the Public Entities Corporate Governance Act, presents a reasonably arguable case. Given that this piece of legislation is still new, there may be room for the development of the jurisprudence on the interpretation of provisions of the Act.

Without doubt, the granting of the present application will bring finality to the main matter. The main matter is of great importance to all parties given the energy levels spent by the parties in prosecuting or defending the present application which may enable the finalization of the main matter. In my view, the present application satisfies the basic requirements of an application for condonation.


I will now move on to the requirements of application for upliftment of the bar. The requirements were well established in the case of *Chapfika v CABS*\(^3\), where the court remarked as follows:

“In an application of this nature the applicant must satisfy the requirements to be met in an application for the upliftment of the bar. The requirements were spelt out in the case of *Smith N O v Brummer N O & Anor 1954 (3) SA 352 (O) at p 358 as follows-
“(a) A reasonable explanation for the Applicant’s delay is forthcoming;
(b) The Application must be bona fide and not made with intent to delay the other party’s claim;
(c) The Applicant must not be guilty of a reckless or intentional disregard of the rules of court;
(d) The Applicant’s case should not be obviously without foundation; and
(e) The other party should not be prejudiced to an extent which cannot be rectified by a suitable Order as to costs.”

In my view, the Applicant’s explanation is reasonable as I have highlighted before. I hold the view that the present application is *bona fide*. There is no sign that the Applicant wishes to delay the conclusion of the main matter. There is no allegation that the Applicant is guilty of intentional disregard of the rules. Further, the Applicant’s opposition to the main matter creates a reasonably arguable case as I have highlighted before. Any prejudice likely to be suffered by the Respondent is capable of being cured by an appropriate order of costs. To this end, the present application manages to meet the essential requirements of the application for upliftment of the bar. In the case of *Buwu and Ors v Madondo N.O. and Ors\(^4\)*, the court, in analysing the requirements for the application for upliftment of bar, held that:

“Ordinarily courts are inclined to grant an application for upliftment of bar unless it is shown that the barred party is up to abuse court process and has no reasonable explanation for the delay. This is so, because if the bar is not lifted, it means a party is barred from being heard and yet the application invites the respondent to oppose the application if that is his wish. A purported filing of the notice of opposition is indicative of the party’s intention to defend the application.

While litigants must comply with the rules, where a party asks for condonation, the court must balance the fault of the party against the need to do justice to the parties. Each case is decided according to its own circumstances. In *Ndebele v Ncube 1992 (1) ZLR 288 (S)* at 290 C-E the said:

\(^3\) HH2/18.
\(^4\) HH660/23.


“It is the policy of the law that there should be finality in litigation. On the other hand one does not want to do injustice to litigants. In recent years applications for rescission, for condonation, for leave to appeal out of time, and other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. The Supreme Court is bombarded with excuses for failure to act. The Supreme Court is beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time had come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt - roughly translated, the law will help the vigilant but not the sluggard.”

By filing the opposing papers, though out of time, the Applicant demonstrated its appetite to oppose the main matter. In the circumstances, I am of the view that the Applicant ought to be given an opportunity to defend the main matter in order to bring finality to that matter.

I hold the view that the final relief sought must be amended in order to define how the parties may move forward in the main matter after the conclusion of this matter. In the case of Jonga v Chabata\(^5\), it was held that:

“the wording of an order is within the discretion of the court.”

It is in the interest of justice that the opposing papers be deemed to have been properly filed. This deeming provision will enable the parties to have a defined road map in the main matter. Without this amendment, the parties will be stuck in the main matter. There is also a need to make some textual changes to the draft order which are necessary to ensure that the meaning of the relief sought is precise and clear. Resultantly, it is ordered as follows:

A. The application for condonation for the late filing of notice of opposition under HC 4502/23 and upliftment of bar be and is hereby granted.

B. The bar operating against Applicant for the late filing of its opposition under HC4502/23 be and is hereby uplifted.

C. The opposing papers filed by the Applicant in case number HC4502/23 be and is hereby deemed to have been properly filed.

D. There shall be no order as to costs.

\(^5\) HH276-17.


Dube, Manikai and Hwacha, Applicant’s Legal Practitioners.
Stansilous and Associates, Respondent’s Legal Practitioners.
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