Nicholas van Hoogstraten v Felistas Runyararo James & Ors

### Preamble
1
HH 470 - 25
HCH 1979/25
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NICHOLAS VAN HOOGSTRATEN

versus

FELISTAS RUNYARARO JAMES

and

THE SHERIFF, HIGH COURT OF ZIMBABWE

and

THE REGISTRAR

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 22 & 8 August 2025

Opposed Application

T. Mpofu, for the applicant

I. Mabulala, for the 1st respondent

MAMBARA J:  This is an application by Nicholas van Hoogstraten (“the applicant”) seeking to reinstate a summons and declaration issued in 2009 under case HC 2047/09, which was deemed to have lapsed by operation of Practice Direction No. 1 of 2022. The applicant also seeks condonation of his non-compliance with the two-year time limit and an extension of time in terms of Rule 7 of the High Court Rules, 2021, to enable the late reinstatement. The ultimate relief pursued in the lapsed action was an order compelling transfer of an immovable property, namely Stand No. 4 Wroxham Road, The Grange in Harare (“the property”), to the applicant, and the ejectment of the first respondent from that property.

The first respondent, Felistas Runyararo James, is the judgment debtor in the original matter and was the former registered owner of the property. The second respondent is the Sheriff of the High Court (cited in her official capacity as the officer who conducted the execution sale of the property). The third respondent is the Registrar of Deeds (cited in his official capacity due to the transfer of real rights). Notably, a third-party purchaser, the Richard Samaita Family Trust, acquired title to the property in 2013 and is not a party to these proceedings, even though it currently holds title to the property. This absence of the present title holder looms large in the feasibility of any relief sought.

The first respondent opposes the application on multiple grounds. In limine, she contends that the application is fatally defective for non-compliance with Practice Direction 1 of 2022, which, she argues, permits extensions of time only if sought before expiry of the two-year period from issuance, not after a summons has already lapsed. She submits that once the summons lapsed, it cannot be revived and the present application is a nullity. The first respondent further argues that the delay of approximately 14–16 years in prosecuting the claim is inordinate and unexplained, that the claim has in any event prescribed, and that the matter has become moot and incapable of enforcement since the property was sold and transferred to a third party back in 2013. The applicant, in turn, maintains that he has a reasonable explanation for the delay, largely blaming administrative hurdles in retrieving a dormant court record and that his claim is meritorious – contending that the 2005 execution sale gave him indefeasible rights which ought to be enforced to prevent a travesty of justice.

Factual Background

The material facts, many of which are common cause, can be summarized as follows. Sometime in 2005, the first respondent’s property, Stand No. 4 Wroxham Road, The Grange, Harare was sold in execution to satisfy a judgment debt. The applicant emerged as the highest bidder at the public auction and the sale was duly confirmed by the Sheriff. By operation of law, upon a valid judicial attachment and confirmed sale, the applicant (as purchaser) acquired vested rights in the property that ordinarily cannot be interfered with by the judgment debtor or even the Sheriff or judgment creditor. In particular, the common law pignus praetorium (judicial lien) arising from attachment means the judgment debtor is divested of the power to alienate the property once attached, and any attempt to dispose of the property to a third party after attachment, and certainly after confirmation of sale is a nullity. As was stated long ago in Kockjoy v Mazamisa 1920 EDL 399 (SA), “If there was a valid and legal attachment then, of course, [the judgment debtor] had no right to dispose of the [property] to [a third party purchaser]...”. Likewise, in Moor v Van Schoor (1892) 3 Menz 105 (SA) it was affirmed that once an attachment is in place, its effect “is neither destroyed nor impaired” by any subsequent acts. These principles, later echoed in local jurisprudence, underscore that a confirmed sale in execution confers on the purchaser a real right that should be immune from unilateral undoing by the debtor or creditor.

In this case, however, the first respondent (judgment debtor) undertook various legal manoeuvres to challenge or delay the transfer of the property. She initially filed court proceedings (HC 5655/05 and an appeal SC 145/06) contesting the confirmation of the sale. Those challenges were ultimately unsuccessful. The High Court dismissed her contestation, and the Supreme Court similarly dismissed the appeal, upholding the validity of the sale in execution. Despite these judicial outcomes, the first respondent did not relent. After the dismissal of her court challenges, she allegedly resorted to extrajudicial means to retain the property.

The judgment creditor (the original plaintiff in the underlying case) and the Sheriff’s office are said to have engaged in an irregular “arrangement” with the first respondent. The first respondent tendered payment of the judgment debt in full, but only after the sale had been confirmed and after the applicant’s purchase price had been tendered by cheque to the Sheriff. An official in the Sheriff’s office then purported to return the applicant’s bank cheque around 2006–2008, as if to cancel the sale. This was done clandestinely at the behest of the judgment creditor accepting the late payment, effectively an attempt to abort the sale after its confirmation. The applicant avers, and it is not disputed, that his cheque was never dishonoured by the bank. The funds were in place and the cheque would have cleared, but it was unilaterally returned to him by the Sheriff’s official. Indeed, a letter from the Sheriff’s office dated 28 June 2008 (after the supposed return of the cheque) indicated that the Sheriff was in fact ready to process transfer in favour of the applicant, confirming that the sale stood. 	Nonetheless, the judgment creditor’s last-minute acceptance of the debtor’s payment created confusion. The applicant characterizes this sequence as a collusive “scheme” between the judgment debtor and judgment creditor with the complicity of the Sheriff’s officer, to deprive him of the lawfully purchased property.

Crucially, armed with the apparent fact that the execution debt was paid off, the first respondent proceeded to transfer title of the property to a third party, the Richard Samaita Family Trust in 2013. In other words, despite the prior auction sale, the judgment debtor treated the property as her own again and sold it to the Trust, a step which, if the execution sale was valid, was legally a nullity. The first respondent eventually vacated the property, acknowledging that she no longer had any interest in it and the Trust took possession. The applicant did not challenge this transfer to the Trust at the time. No legal action was instituted in 2013 to interdict or reverse that transfer. The applicant instead pinned his hopes on the lawsuit he had filed back in 2009 (HC 2047/09) – a summons and declaration wherein he sought: (a) an order compelling transfer of the property into his name either by the first respondent signing over title or, failing that, the Sheriff or Registrar of Deeds being ordered to effect transfer, and (b) an order evicting the first respondent and anyone claiming occupation through her from the property. That summons was the vehicle chosen by the applicant to vindicate his rights from the execution sale.

However, from 2009 onwards, that civil action lay dormant. The first respondent had entered an appearance to defend, which led the applicant to file an application for summary judgment under case HC 2560/09. The summary judgment was not granted. The record indicates it was dismissed by the High Court, meaning the matter would have had to proceed to trial. Thereafter, nothing further was done by the applicant to prosecute the case. The matter lingered for years without being set down for hearing or otherwise advanced. By 2021, the court file had even been archived due to inaction.

On 24 March 2022, Practice Direction 1 of 2022 came into force. Pertinent to this case, paragraph 2.2 of that Practice Direction provides that if no significant steps have been taken in a civil action for two years, the summons is deemed to have lapsed. Specifically, “If the summons in an action is not served within two years of the date of its issue or, having been served, the plaintiff has not… taken further steps to prosecute the action, the summons shall lapse.”. In order to avoid such lapse, the Practice Direction allows an aggrieved party to seek an extension of time by applying to the Registrar before the two-year period expires. In other words, the mechanism for relief is that a plaintiff who fears their case will be deemed abandoned must apply within the two-year window for an extension. After the time has run, there is no express allowance to revive a lapsed action. It is common cause that the applicant did not take any steps within two years of the Practice Direction or indeed within two years of any date to prevent the lapse of his case. By operation of paragraph 2.2, therefore, the applicant’s 2009 summons was deemed abandoned and lapsed at latest by March 2024 (two years after the Practice Direction came into effect, if not earlier, considering that the High Court Rules 2021 and specifically r 84 also contain provisions deeming matters abandoned after set periods of dormancy.

The applicant avers that he became aware of the need to revive the matter and had in fact written to the Registrar in November 2021, prior to the Practice Direction, requesting the court file to be located and uplifted from the archives. That letter went unanswered for a long period. The file was eventually retrieved and digitized in early 2025. The applicant then moved with haste to file the present chamber application on 30 April 2025. By that date, however, over 16 years had elapsed since the cause of action arose in 2005, and approximately 13–14 years since the last meaningful action in the 2009 lawsuit.

Issues for Determination

The court must determine:

Whether the application is competent in light of Practice Direction 1 of 2022.  In particular, can a summons that was deemed to have lapsed and a matter regarded as abandoned be reinstated after the two-year window provided by the Practice Direction has expired? Or is the present application dead on arrival?

Whether the applicant has shown good cause for condonation and extension of time – i.e. has he provided a satisfactory explanation for the inordinate delay, and does he have prima facie prospects of success in the main matter, such that the court should exercise its discretion to condone the non-compliance with the rules/Practice Direction?

Whether the underlying dispute has become moot or academic. Given that the property in question was transferred to a third party not before the court, and the first respondent no longer has any legal interest in it, would granting the sought order yield any practical effect or would it amount to a brutum fulmen?

If not moot, whether the applicant’s claim is nonetheless barred by prescription or other legal doctrines of finality

These issues are interrelated. Even if the Practice Direction hurdle is overcome (issue 1), the court’s decision on condonation (issue 2) will hinge on the length of delay and the realities of issue 3 (mootness) and issue 4 (prescription/finality) which affect prospects of success. I will address each in turn.

Effect of Practice Direction 1 of 2022 and Lapse of the Summons

Practice Direction 1 of 2022 was introduced as an administrative measure to clear the backlog of stagnant cases clogging the court system. It expressly provides that where a summons has been issued but not served within two years, or where a matter already initiated has not been prosecuted further within the time limits stipulated in the older rules, the summons shall lapse. The Practice Direction also provided an avenue of recourse for litigants caught in that situation. An application for extension of time could be made to the Registrar before the expiry of the two-year period. Importantly, the language of the Practice Direction does not contemplate the granting of extension after the fact. The first respondent’s point is that once a summons has lapsed by operation of the Practice Direction, no application for its reinstatement can be entertained – the matter is functus officio, so to speak, having already been deemed abandoned. In her words, “The provision only allows for an application for extension of time being made to the Registrar before the expiry of the two-year period… Extension of time cannot therefore be sought after the summons has already lapsed. The application is a nullity and ought to fail on that basis alone.”. This is a formidable objection, as it implicates the jurisdiction of the court to even hear the merits of the request.

The applicant, for his part, acknowledges that his summons was indeed one of those deemed lapsed by the Practice Direction. He however argues that the Practice Direction did not set an absolute cut-off for approaching the court – noting that paragraph 2.2 of Practice Direction 1/2022 itself does not stipulate a specific deadline for filing a court application for reinstatement. It was, according to the applicant, out of “an abundance of caution” that he included a prayer for condonation of late filing. In essence, he invites the court to exercise its inherent jurisdiction or the broad discretion under Rule 7 of the 2021 High Court Rules to grant an extension of time even post-lapse. Rule 7 empowers the court to extend or abridge time periods prescribed by the rules or to condone non-compliance “on good cause shown,” and the applicant contends that this provides a legal basis to entertain his application notwithstanding the lapse.

This court is mindful that courts exist to do justice between the parties, and rigid procedural directives should not invariably trump a truly deserving cause. Nonetheless, Practice Directions and rules of court are there to be obeyed and to confer finality. In Basera v Registrar of Supreme Court & Ors SC 35-22, the Supreme Court dealt with an analogous scenario under its own rules. A registrar had deemed an appeal abandoned due to procedural default, and the question was whether that decision could be reversed. Mathonsi JA emphasized that where the rules provide a specific remedy or procedure (in Basera, a Rule 13 application to review the registrar’s decision), that path must be followed. In the High Court, significantly, there is no exact equivalent of the Supreme Court’s Rule 13 for reviewing a Registrar’s deeming decision. Instead, we have Practice Direction 1 of 2022 to govern lapsed summons situations. That Practice Direction itself is effectively the law on this issue. It allowed litigants a generous two-year window, from March 2022 to March 2024, to revive or continue their stalled cases – a window the applicant here let slip by entirely.

By the time the applicant filed this application at the end of April 2025, over a year had passed since the lapse took effect. The horse had bolted. The court’s inherent power to regulate its processes enshrined in Section 176 of the Constitution and in our common law does give it some leeway to prevent injustice. But inherent power cannot be invoked to resurrect a matter that the law, through a binding Practice Direction, has pronounced dead, save in the most exceptional circumstances. To countenance such an approach would defeat the very purpose of the Practice Direction, opening the floodgates to precisely the kind of indefinite pendency the directive sought to curtail. Our courts have repeatedly stressed the need for finality and time limits in litigation: “Litigation must never be an eternal right without regulated time frames… failure to have such cut-off time frames will result in endless suits.”. This statement from Merreta v Kanyongo & Anor HC 1049/22 (ZWHHC) succinctly captures why rules like Practice Direction 1/2022 exist – to impose a statute of repose on dormant claims.

I find that Practice Direction 1 of 2022 is binding on this court and on the parties. The applicant did not avail himself of the remedy provided in that Practice Direction (seeking an extension within the prescribed time). By the clear terms of the Practice Direction, his summons lapsed and ceased to have any force in this court’s file as of the deadline. What the applicant is truly asking is for the court to exercise extraordinary indulgence to overlook the lapse. That is, in substance, a plea for condonation. I will therefore treat the matter as one hinging on whether condonation and reinstatement should be granted despite the procedural bar. If the interests of justice strongly favour revival, for instance, if egregious injustice would occur otherwise, the court could in theory invoke its inherent powers. But such a step requires a compelling justification. It is thus appropriate to examine the condonation inquiry in detail, for if the applicant cannot satisfy the requirements for condonation, the application fails regardless of the Practice Direction issue. And conversely, even if condonation requirements are met, the court would still have to reconcile that outcome with the existence of the Practice Direction.

In sum, the Practice Direction raises a serious prima facie hurdle. The first respondent’s point in limine is well-taken. Extension of time was meant to be sought before expiry, not after. Nonetheless, for completeness, I will assess whether the applicant has shown good cause to justify an exceptional departure from that rule, which is essentially the condonation analysis.

It is trite that condonation is an indulgence granted by the court in its discretion upon a showing of “good cause.” It is not a mere formality nor there for the asking. The Supreme Court in Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC 34/17 put it bluntly that an applicant who finds themselves out of time must give a satisfactory and honest explanation for their default, and must demonstrate reasonable prospects of success on the merits of the substantive application. Ziyambi JA cautioned that “An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.” In other words, the onus is squarely on the defaulting party to win the court’s sympathy by a candid account of what went wrong and why, and to show something on the merits that persuades the court that it should exercise its discretion in favour of relief.

Our courts typically consider a range of factors on a condonation application: (1) the length of the delay, (2) the reasonableness of the explanation for that delay, (3) the prospects of success in the main matter, and (4) the balance of convenience or prejudice – all viewed against the backdrop that the rules exist for a purpose. These factors are cumulative and interrelated, not disjunctive. A strong merits case may offset a weak explanation for delay, and vice versa, but a completely inadequate explanation or a hopeless case will doom the application regardless. As Dube J observed in Chiweza & Anor v Mangwana & Ors HH 186-17, the court’s discretion on condonation must be exercised judicially with regard to all the circumstances. Ultimately the question is what the interests of justice dictate.

(a) Length of Delay: The delay in this case is extraordinary by any measure. The summons was filed in 2009. The application to reinstate was only made in 2025. Even if one pegs the “delay” from the issuance of the Practice Direction in 2022, the applicant overshot the two-year period by about 13 months. But the broader context is a lawsuit that lay inert for well over a decade. Such a protracted dormancy is prima facie an inordinate delay. As the English Court of Appeal has noted, what constitutes inordinate delay depends on the facts of each case, but “inordinate delay should not be too difficult to recognize when it occurs.”  See, Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 (UK CA) where Lord Justice Diplock opens the judgment with this statement, “In these three cases the law’s delays have been intolerable. They have lasted so long as to turn justice sour...”

Here, no matter how charitable one is, the lapse of 14–16 years without resolution is clearly inordinate. Indeed, few cases would survive such stasis without compelling excuses.

(b) Explanation for Delay: The applicant’s explanation for this lengthy delay is multifaceted. He avers that after around 2010, his efforts to prosecute the case were frustrated by the first respondent’s own legal shenanigans and by administrative hurdles. He points to the fact that the court file was archived, and that multiple attempts were made to locate and retrieve it. Notably, he produces a letter dated 10 November 2021 in which his legal practitioners implored the Registrar to find the missing file. He also produces letters from his former agent, one Mr. Brian Machengo, who had been tasked earlier with tracking the case progress, to show that inquiries were being made over the years. The picture painted is one of a litigant who did not entirely forget about his case, but who was stonewalled by bureaucracy and perhaps misled by the “success” of having won the earlier court battles (thus assuming the matter was effectively settled in his favour, when in reality the transfer had not occurred). The applicant emphasizes that as soon as the file was finally reconstructed and uploaded in February 2025, he wasted no time in filing this application.

While these facts do show some effort on the applicant’s part, the explanation is not fully convincing. From 2009 until 2021, a span of 12 years, the applicant offers no clear timeline of actions taken to advance the matter. The burden is on him to account for each significant period of delay. It appears he largely left the matter dormant, possibly believing that the first respondent’s defeat in court and her eventual vacating of the property meant the end of the issue. It was only when he presumably attempted to regularize the title and discovered the property was now registered to the Trust that urgency resurfaced. Even then, 2021 to early 2025 is another 3+ years, albeit the applicant blames the registry for that. In short, the explanation contains gaps. That said, I accept that part of the delay was due to bureaucratic inertia in retrieving a long-archived file, which is somewhat beyond the applicant’s control. I also take into account that the applicant did not silently slumber throughout. He did engage an agent to monitor the case and eventually initiated the inquiry with the Registrar. The explanation can be characterized as partial at best. It is neither entirely hollow nor entirely satisfactory. The delay is so extensive that it would be impossible to justify without very strong merits to counterbalance it.

It is also worth noting that during the delay, the legal landscape changed. Practice Direction 1/2022 was promulgated and, more importantly, third-party rights crystallized (the Trust’s title). Thus, the delay has had concrete consequences beyond mere passage of time. It altered the context in which relief is now sought.

(c) Prospects of Success: This factor is pivotal. The applicant insists that his claim is exceptionally strong on the merits. He lawfully purchased the property at a judicial sale, tendered payment of the price, and thereby became entitled to transfer and possession. On a purely legal plane, this position finds substantial support in our law. Once a sale in execution has been confirmed and not successfully challenged, there is no going back. The purchaser acquires rights that cannot thereafter be undermined by the debtor, the creditor, or even the Sheriff. Our courts have been clear that a judgment debtor cannot derail a confirmed sale by belatedly paying the judgment debt, nor can a Sheriff unilaterally cancel the sale on that basis. In Nanhanga v Chalmers & Ors 2014 (2) ZLR 486 (H), for example, a situation very analogous to this case, the High Court held that the debtor’s post-auction payment did not invalidate the sale. The debtor’s remedy was to redeem the property before the auction, not after.

This principle was emphatically applied in the earlier litigation between these same parties. In Van Hoogstraten v James & Ors, HH 272-10, Makoni J (as she then was) recounted how, after the sale was confirmed and the first respondent’s court challenges had failed, the first respondent paid the judgment debt in full and induced a Sheriff’s official to return the applicant’s cheque uncashed – the official even “recommended that the sale be aborted” on that basis. The High Court in 2010 rebuffed that maneuver. Makoni J condemned the attempt to nullify a confirmed judicial sale in this clandestine fashion as an abuse of process that offended the finality of litigation.

That, however, is not the end of the inquiry. A critical inconsistency undercuts the applicant’s present claim. He seeks specific performance (transfer of the property) without having performed – or even tendered – his own corresponding obligation. The purchase price cheque he provided was never cashed. It became stale and was returned to him, meaning the applicant ultimately never paid a cent for the property. Yet he now asks the court to enforce the sale in his favor regardless. Makoni J herself in the Hoogastraten matter supra, flagged this inequity in the 2010 judgment, observing that the applicant was suing for transfer while “his estate was not diminished by the amount of the cheque as it was not deposited… What the applicant is asking the court to do is to order specific performance when he has not paid a cent for the property. In effect he will get the property for free.” Equity will generally refuse to assist a party who seeks the benefit of a bargain without meeting his own end of it. A court asked to compel transfer of property will normally require the purchaser to either have paid the price or to tender payment. Here, the applicant has done neither – he retains the very purchase money that was supposed to fund the sale. This glaring lack of performance on his part further saps the strength of his case on the merits.

More fundamentally, the passage of time and intervening events have severely diminished the practical efficacy of any relief the applicant seeks. We are now in 2025, attempting to resurrect a claim that arose from a 2005 sale and a 2009 lawsuit. The landscape has completely changed. The first respondent no longer has any title to or interest in the property. She “cannot transfer what she no longer has”, and an eviction order against her would be meaningless since she vacated the premises long ago. The property is presently held by a third party, the Richard Samaita Family Trust, which acquired title in 2013 and is not before this Court. Thus, the real contest at this point would be between the applicant and the Trust, but that battle cannot be fought within the confines of this application. The applicant’s 2009 summons, even if reinstated, is directed only at the first respondent and the officials. It does not cite the Trust or seek any relief against it. In other words, the pleadings are frozen in time and grossly misaligned with present reality. Even if this Court were to reinstate the action, the relief it could grant on those pleadings, an order compelling the first respondent to transfer the property and to vacate it, would be futile and hollow. It would command nothing of substance, given that the first respondent today lacks both the property and possession. An order against her now would not bind or affect the current title holder at all. Implementing the applicant’s victory would inevitably require new proceedings to join the Trust and to unravel the transfer to it or substantial amendments to the old pleadings – a prospect that underscores how academic the current application has become. In effect, granting the requested revival now would only spawn further protracted satellite litigation, as the parties scramble to realign the case with the facts on the ground.

Additionally, the claim’s viability is clouded by the possible bar of prescription (extinctive limitation). The first respondent argues that the applicant’s cause of action, which crystallized by 2005–2006 when the sale was confirmed and the debtor first attempted to negate it, has long since prescribed under the ordinary three-year limit for civil claims. The applicant, for his part, would likely contend that his claim to vindicate property rights is not a “debt” subject to short prescription, or that the 2009 filing of the summons interrupted any prescription. Without delving into the merits of these technical arguments, it is enough to note that a serious question mark hangs over the claim due to the extraordinary lapse of time. The specter of a prescription defense further diminishes the prospects of the applicant achieving success in the main matter. Even a prima facie meritorious claim can be rendered nugatory if it is met by an unassailable plea of prescription. Here, the mere potential of such a plea succeeding casts a long shadow over the applicant’s case.

In sum, the court is satisfied that, whatever force the applicant’s claim may once have had, it is no longer capable of yielding any meaningful or equitable relief. Yes, the applicant had a valid grievance and a strong legal right at the outset. His purchase at the auction was lawful, and in principle he deserved to receive the property he paid for. But through the passage of years and the unfolding of events, those rights have been hopelessly overtaken by reality. To grant the applicant the order he seeks now would be to hand down a brutum fulmen – a thunderbolt that makes a loud noise but strikes no target. Courts do not issue orders in vain or engage in empty formalities. Any judgment compelling the first respondent to transfer title or give up possession at this stage would be ineffectual. She has no title or possession to relinquish and it would be unjust to the true title holder who is absent from these proceedings. The law prizes finality in litigation and the stability of completed transactions. Here, the rights of an innocent third party, the Trust, have been cemented for over a decade, and undoing them now would visit prejudice not only on that party but on the integrity of the justice system. The applicant’s own prolonged inaction is not blameless in this state of affairs. He allowed the matter to lie fallow while the world moved on. There comes a point when even a once-meritorious claim must yield to the greater good of certainty and finality. In the court’s view, that point has long since been reached. Attempting to resuscitate this abandoned claim in 2025 would verge on an abuse of process, re-litigating issues that were effectively settled and disturbing rights that have long been settled. Put plainly, the horse has bolted – the ship has sailed – and it would offend the sound administration of justice to pretend otherwise. Accordingly, the applicant’s prospects of success in the underlying claim are negligible.

Even were I to disregard all the above, the judgment by Makoni J (as she was then) bears reconsideration when the prospects of success are being considered. Thus, in Hoogstraten v James & Ors HH 272-10 supra, Makoni J considered this very dispute in its earlier form and made two critical findings that directly impact the present application. First, the Court in that matter found that the first respondent’s appeal of the execution sale was struck off the roll for procedural default and that an application for reinstatement was dismissed by the Supreme Court in 2008. As such, the dispute had reached finality.

Second, and more importantly, Makoni J considered the applicant’s failure to pay the purchase price and the subsequent actions of the Sheriff in recommending that the sale be aborted due to the debtor having satisfied the judgment debt. The Court recorded that the applicant’s cheque had been returned and was never cashed, and thus he “has not performed his obligations…What the applicant is asking the court to do is to order specific performance when he has not paid a cent for the property. In effect he will get the property for free.” The judgment thus concluded that even though a sale had once been confirmed, the equities no longer supported its enforcement because the creditor had been satisfied and the purchaser had never performed. The court then declined to grant the application for summary judgment and ruled that the respondent had a defence to the claim

That backdrop fatally weakens the prospects of success. Even if this application were granted, the court would be reopening a matter that has been substantively closed on its merits and would be endorsing a path already found to lack equitable foundation. This supports the respondent’s contention that the entire application is an effort to breathe new life into an extinguished and untenable claim. As such, the sentiment expressed in the previous case between the parties reinforce the need to refuse reinstatement both on legal and discretionary grounds.

Here too, the finality considerations are dispositive. Makoni J’s judgment demonstrated that a party who has slept on their rights, and failed to act promptly or pay what was required, cannot later demand the court’s indulgence to achieve what would amount to an unjust windfall. In this case, the applicant allowed 16 years to pass without proper pursuit of his claim, despite receiving judicial confirmation years ago that the sale had effectively been undone and that he had not tendered payment. He now seeks to revive an action against a party who is no longer in possession or ownership, in relation to rights that have since dissipated. That, too, would offend the principle that litigation must come to an end.

This Court would therefore not only be issuing an order against the wrong party (as the first respondent is no longer title holder or occupier), but would also be ordering a remedy that has already been declared in a previous proceeding to be inequitable and unavailable. It would be tantamount to allowing the applicant to forum-shop for a different result to a matter already heard, and to obtain transfer years later without having paid the purchase price – the very concern that Makoni J warned against.

Thus, to grant this application now would do more than defy the practical reality of mootness. It would affirm an abuse of the court process that was previously cautioned against in the previous matter between the same parties. Judicial comity and coherence demand that this Court not countenance what a coordinate bench has already found to be fundamentally flawed.

(d) Prejudice and Finality: The prejudice to the first respondent if this matter were reopened is not trivial. She would have to relitigate a matter that was effectively settled years ago. She paid the debt in 2008 and has since 2013 moved on after selling the house. More significantly, prejudice extends to the innocent third party, the Trust. While one may moralize about the first respondent’s conduct (indeed, if the applicant’s allegations are true, she acted unlawfully and in bad faith by selling what she could not lawfully sell), the fact remains the Trust has held the property for over a decade, presumably in good faith that it had clear title. Unravelling that now would cause significant prejudice to that third party, which equity is slow to countenance especially given the applicant’s own lack of diligence for so long. On the flip side, prejudice to the applicant if condonation is refused is that he loses the opportunity to assert his property right. But one must ask: who created that predicament? The applicant had remedies available years ago. For instance, he could have promptly sued to interdict transfer to the Trust or joined the Trust in 2013. He could have placed a caveat over the property. He could have kept the 2009 case active or revived it much earlier. The law favours the vigilant, not those who sleep on their rights. In the balancing of equities, the courts lean toward finality once so much time has elapsed. This aligns with the policy behind prescription statutes and procedural time-bars.

In English law, the test for dismissing a stale claim includes considering whether the delay has caused serious prejudice to the defendant such that a fair trial is unlikely. See, Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 (UK CA). Here, after such a long delay, evidence may be lost, memories faded, and the entire factual matrix shifted. It would likely be very difficult to have a fair trial on what transpired in 2005–2008, especially as key players (the original judgment creditor, the relevant Sheriff’s officers) may no longer be available or have records. This reinforces the conclusion that allowing the case to be resurrected now would not be just or practical.

Having weighed all these factors, I find that the applicant has not shown good cause for condonation and reinstatement. While he asserts a morally and legally sympathetic claim, the delay is egregious and only partially explained, and the prospects of success in obtaining meaningful relief are weak because the case is largely moot and fraught with procedural and substantive hurdles including potential prescription. The interests of justice do not favour reviving this litigation at this late hour. On balance, justice demands that this matter be laid to rest rather than reopened. The applicant’s own inaction however justified he feels it was, has contributed to the complexity and futility that now attend the case. There comes a point when even a meritorious claim must yield to the greater good of certainty and finality. That point, in this court’s view, has long passed in this case.

Mootness and Brutum Fulmen

Even if one were to overlook the Practice Direction issue and grant condonation, the court would still refuse relief on the ground of mootness. As noted, the core relief sought, transfer of title and eviction, cannot be granted in any effective manner now. The first respondent no longer holds title or occupies the property. A court order cannot compel a person to do the impossible. It would be absurd to order the first respondent to sign transfer forms for a property she sold 12 years ago and no longer owns. It would be equally absurd to evict her from a house she doesn’t live in. Courts do not engage in ceremonial exercises or issue orders that are empty of practical force. This dispute has become academic in so far as the first respondent is concerned. The real dispute would be between the applicant and the Trust, and that is not before this court. It is not the function of this court in this application to determine the rights of the Trust, especially in absentia.

The first respondent cited the case of Rushezha & Ors v Dera & Ors CCZ 24/17 where it was reiterated that courts should refrain from making orders that cannot be implemented. That principle applies squarely here. Any judgment in favour of the applicant, without the Trust being a party, would be not only ineffectual but potentially unjust to the Trust. Conversely, a judgment simply dismissing the application, as I am inclined to grant, may seem harsh to the applicant, but it accords with the reality that the court system cannot provide him a remedy without reordering the rights of an absent third party. The applicant’s remedy, if any remains, would lie in a separate action against the Trust perhaps seeking a declaration of nullity of the 2013 transfer. But that is outside the scope of what this court can entertain on the present papers.

In Member, Executive Council for Co-Op Governance v Nkandla Municipality & Ors [2022] ZACC 11, SA CC (a South African Constitutional Court case), it was observed that even when a matter has become academic, a court may exercise discretion to hear it only if there are compelling reasons such as a recurring legal issue of public importance. Here, there is no public interest served by deciding the now-hypothetical question of first respondent’s obligation to transfer the property. The question is moot as between applicant and first respondent, and deciding it would have no effect on resolving the true controversy (applicant vs Trust). Thus, even apart from the procedural bars, the application would be refused for mootness alone.

Conclusion

In conclusion, the applicant has failed to surmount the procedural and substantive hurdles to the relief he seeks. The summons having lapsed by operation of Practice Direction 1 of 2022, and no timely extension having been sought, the court is not inclined to revive the matter at this late stage. The applicant’s plea for condonation falls short of the strict standards set by the law for granting such an indulgence. The delay was inordinate and largely of his own making, and the prospects of achieving an effective remedy are minimal. Furthermore, the relief sought has been overtaken by events and would amount to a brutum fulmen, an unenforceable order, given the property’s transfer to an uninvolved third party. Finality in litigation and the integrity of procedural rules dictate that this application be refused.

The court is not blind to the apparent injustice that the applicant feels. He believes a “travesty of justice” occurred when his lawful purchase was undone by underhanded means. If events are as he alleges, then indeed the law was flouted by the judgment debtor and perhaps others. However, the time to seek redress was when those events occurred. Justice is better served by prompt action rather than protracted slumber. The legal system cannot indefinitely accommodate a claimant who slips far outside the prescribed time-frames, especially where third-party rights and the public interest in certainty have intervened.

In view of the circumstances, notably the extremely delayed and meritless nature of the application, the court finds it appropriate that the applicant bear the costs. The first respondent asked for costs on a legal practitioner and client scale, citing abuse of court process. Indeed, pursuing a moot and time-barred application can be seen as vexatious. I am persuaded that a punitive costs order is justified to underscore the court’s disapproval of the manner in which the applicant allowed the matter to stagnate and then sought to revive it contrary to clear directives. The applicant shall therefore pay the first respondent’s costs on the legal practitioner and client scale.

In the result, it is ordered as follows;

The Chamber Application for Condonation, Extension of Time and Reinstatement of Summons is dismissed with costs on the legal practitioner-client scale.

Mambara J: ………………………..…………………

Nyawo Ruzive Attorneys, applicant’s legal practitioners

Mabulala and Dembure, 1st respondent’s legal practitioners