Kundai Makuzva & Yeukai Cheu (Nee Makuzva) v Viola Machera (Nee Makuzva) & Nhengomasha Trust & Wilson Manase N.O. & Master of the High Court & The Registrar of Deeds & Virimai Makuzva

### Preamble
Judgment No SC 25/25
1
Chamber Application No SC 302/24
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REPORTABLE    (25)

(1)     KUNDAI     MAKUZVA     (2)     YEUKAI     CHEU     (NEE MAKUZVA)

v

(1)     VIOLA     MACHERA     (NEE     MAKUZVA)     (2)     NHENGOMASHA     TRUST     (3)     WILSON     MANASE   N.O     (In his capacity as executer of estate the late Muchandibaya Makuzva.)     (4)     MASTER     OF   THE     HIGH    COURT     (5)     THE     REGISTRAR     OF     DEEDS     (6)     VIRIMAI MAKUZVA

SUPREME COURT OF ZIMBABWE

HARARE: 8 JULY 2024 & 13 MARCH 2025

T. Mapuranga for the applicants

F. Zuva for the first respondent

B .Diza with S. Mazorodze for the second respondent

T.Zhuwarara for the third respondent

No appearance for the fourth to sixth respondents.

BHUNU JA:

1.  This is an opposed application for condonation and reinstatement of an appeal in terms of                      r 43 as read with r 70m of the Supreme Court Rules 2018.

THE PARTIES

2. 	The first and second applicants are siblings so is the first respondent.  They are the children of the late Muchandibaya Makuzva (the deceased) who died on 30 November 2001.  The sixth respondent is the grant son of the deceased.

3.	The second respondent is a family trust registered in terms of the laws of Zimbabwe.  The third respondent is the executor of estate late Muchandibaya Makuzva (the estate).

4	The fourth and fifth respondents are state functionaries cited in their official capacities for the purpose of complying with court orders.

FACTUAL BACKGROUND

5.	The late Muchandibaya Makuzva left a will wherein he bequeathed his farm to the Makuzva family Trust which was not in existence at the time of he executed his will up to the time of his death. In fact the Makuzva Family trust never came into existence.

6.	Sometime in 2002 the first respondent was appointed executor of the estate.  In 2004 the first respondent obtained transfer of the farm in her personal capacity as a direct inheritance at the behest of the third respondent.  The first respondent later sold the farm in 2018 to the second respondent who obtained title without the knowledge of the first applicant and sixth respondent who were resident at the farm.

7.	In 2019 the second respondent sued for eviction of the first applicant and sixth respondent under case number HC 7245/29. The first applicant and the sixth respondent were oblivious that the farm had been sold.  The first respondent resisted eviction on the basis that the second respondent had obtained defective title in that the first respondent was not the rightful owner of the farm.  The applicants and the sixth respondent then proceeded to institute legal proceedings to reverse the sale coupled with a prayer for the removal of the third respondent as the executor of the estate under case number HC 7775/19.  The two cases were conveniently consolidated.

8.	The court a quo struck off the roll case number HC 7775/19 on procedural grounds.  It then proceeded to hear and determine case number HC7245/19 pertaining to the eviction of the first applicants. It found that the applicants were illegally in occupation of the farm. It further found that the farm had been properly transferred to the first respondent who legitimately sold it to the second respondent.  The second respondent was now the rightful owner of the farm.  On the basis of such finding, the court a quo granted an order for the eviction of the first and second applicants.  The order for eviction was appealed against under case number SC 112/24.

9.	At the appeal hearing counsel for the second respondent raised the objection in limine that the appeal was incompetent and invalid because of noncompliance with the mandatory provisions of r 11 of the Supreme Court Rules 2018. The rule requires the appellant to file proof of service of the notice of appeal on all respondents.

10. 	The applicants were unable to furnish proof of service on the sixth respondent, Virimai Makuzva.  At p 3 of its judgment in SC 58/24 Mwayera JA writing for the three member panel of judges had this to say:

“The filing of proof of service is provided for in peremptory language and has to be done within reasonable time.  Non-compliance would therefore render the matter to be improperly before the court. In any event and more importantly,                 r 11B of the Rules stipulates that such filing shall be done not more than forty-eight hours after such service. The belated application for condonation by                    Mr Mapuranga premised on alleged inadvertence on the part of instructing practitioners, does not warrant the indulgence sought. The filing done whilst the court was in session, does not warrant the indulgence. More so, even if the court was to be inclined to condone such late filing of proof of service, the appellants face the insurmountable challenge of their failure to effect proper service. This is so because the belatedly filed proof of service shows that the sixth respondent is out of the court’s jurisdiction. This fact brings into question the appropriateness of the service effected on a post at the farm and also on the social media WhatsApp platform.

In our view, the determination of the preliminary point is dispositive of the matter as we cannot relate to a matter that is improperly before us”.

11.	Having said that, the court proceeded to strike the matter off the roll with costs. I now turn to consider the application before me.

THE APPLICATION FOR CONDONATION AND REINSTATEMENT OF THE APPEAL

PRELIMINARY ISSUES

12.	At the commencement of the hearing before me, Mr. Mapuranga counsel for the applicants raised a point in limine objecting to the appearance of counsel for the   third respondent on the basis that he was barred. He submitted that third respondent was supposed to file his notice of opposition by 5 June 2024 but only filed it a day later on 6 June 2024.

13.	Mr Zhuwarara acknowledged the infraction and made an oral application for upliftment of the bar.  He explained that the delay was due to the late arrival of the compliance check. The delay is slight and the explanation reasonable. The application for the upliftment of the bar operating against the third respondent is granted.

14.	Mr Diza council for the second respondent raised preliminary points which are dispositive of this matter if sustained. He contends that the applicants are seeking condonation for non-compliance with r 11 in circumstances where they have not purged their infraction of the rule. The applicants cannot reinstate the same application which the court has ruled to be invalid in SC 58/24.

15. 	It is correct as we have already seen, that this Court has already made a ruling on the issue at hand regarding non- compliance with r 11B.  The applicant has now brought the same issue between the same parties and concerning the same cause of action before me for condonation and reinstatement of the same application. The Court in SC 58/24 struck the matter off the roll for want of proper service on the sixth respondent.

16.	Mr Mapuranga counsel for the applicants submitted that service was effected on sixth respondent’s email address and he acknowledged receipt with thanks as reflected at                      p 308.  He further submitted that the sixth respondent pulled out of the case because he could not afford the fees.

17.   The question to be answered under the contentious arguments is, how a party comes back to court when a matter is struck off the roll owing to non-compliance with the rules of court.

HOW DOES A PARTY COME BACK TO COURT AFTER A MATTER IS STRUCK OFF THE ROLL?

18. 	Mr Mapuranga contented that under r 37 (3) if you fail to serve process timeously, the appeal is regarded as abandoned and deemed dismissed. When a matter is struck off the roll for failure to abide by the Rules, Practice Direction 3 of 2018 provides that the defaulting party has 30 days to rectify the infraction. Failure which the matter will be deemed to have been abandoned and dismissed provided that the Judge may reinstate the matter for good cause shown.

19.	Mr Diza’s stance is that the applicant’s draft order seeks reinstatement before the applicant has purged its infraction of the Rules.  Practice Direction 3 of 2018 does not say that one approaches the Court before rectification of the anomaly. The court had made a factual finding that the sixth respondent is out of the country and the applicant is attempting to make substituted service without due process.

20.	Mr Zhuwarara placing reliance on the case of Parkham Enterprises (Pvt) Ltd & Anor v Adhesive Products Manufacturers (Pvt) Ltd & Anor SC 100/21, submitted that where there is a nullity there cannot be a reinstatement because there is nothing to reinstate. In this case this Court struck the matter off the roll. It did not deem it dismissed. What this means is that the application was a nullity.  A nullity cannot be reinstated.

21. 	In advancing his argument Mr Zhuwarara relied on the case of Culverwell v Beira 1992 (4) SA 490 at 494 A – C for the proposition that an order of a court stands valid until set aside by a court of competent jurisdiction.

22. 	It was his submission that the applicants have not approached the Judge in chambers in terms of Practice Direction 3 of 2019 but in terms of r 70.  Rule 70 however, relates to appeals that have been deemed abandoned and dismissed.

ANALYSIS AND DETERMINATION

23. 	It is common cause that on 17 May 2024 this Court in its judgment SC 58/24 issued an order pertaining to this case in the following terms:

“In the result the Court orders as follows:

The matter be and is hereby struck of the roll”

24. 	The reason for striking off the matter was that it was fatally defective because of want of service of process on a necessary party to the proceedings. What that means is that the court held the application to be defective, a nullity and non-existent in the eyes of the law. I am therefore in full agreement with Mr Zhuwarara that the matter having been ruled by the Court to be a nullity it cannot be reinstated for the simple but logical reason that it is non-existent at law.  That ruling is extant and binding as it has not been upset or altered in any way by a court of competent jurisdiction. The Supreme Court being the final court outside the Constitutional Court, its rulings and judgments are always correct consistent with its status as the final court in non-constitutional matters. What this means is that the court was correct in striking the matter off the roll.

25.	While it is correct that in terms of r 37 (3), where there is failure to effect service in terms of the Rules, the matter may be regarded as abandoned and deemed dismissed, and the remedy in that case lies in r 70 for reinstatement, in this case, both rr 37 (3) and r 70 are inapplicable because the court did not deem the matter dismissed but struck it off the roll.  The remedy for a matter struck off the roll is not reinstatement for the reason that one cannot reinstate a nullity.  The remedy lies in putting right the anomaly or defect and then approaching the court with a valid appeal.  Reinstatement is out of question because it is not the appropriate remedy for a matter that has been struck off the roll for want of compliance with the rules.

26.  I accordingly hold that the application before me is incompetent as it has been brought in terms the wrong rule and the relief sought is incompetent in terms of the applicable rules. That holding disposes of the matter and all the other issues arising from it.

27.	Costs are in the discretion of the court.  In this case there is no reason for departing from the normal position that costs follow the result.

28   In the result it is ordered that the application for condonation and reinstatement of the appeal be and is hereby struck off the roll with costs.

Bruce Tokwe Commercial Law Chambers, applicants’ legal practitioners.

Mhishi Nkomo Legal Practice, 2nd respondent’s legal practitioners.

Manase & Manase Legal Practitioners, 3rd respondent’s legal practitioners.

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