Mutowo v Mukuhwa and Others (SC 223/26) [2026] ZWSC 16 (4 August 2026)

Judgment No. SC 49/26 Chamber Application No. SC 223/26 1 REPORTABLE (49) WESLEY MUTOWO v (1) ALLEN T. MUKUHWA (In his capacity as Executor for Estate late Martha Mukuhwa) (2) CITY OF MUTARE (3) MASTER OF THE HIGH COURT OF ZIMBABWE SUPREME COURT OF ZIMBABWE HARARE: 20 MARCH 2026 & 4 AUGUST 2026 The applicant in person T. Musara, for the first respondent No appearance for the second and third respondents IN CHAMBERS MAFUSIRE AJA: [1] This was an application for leave to appeal. Such applications are made in terms of r 50(1) of the Supreme Court Rules, 2025 (“the rules”). On the day of the hearing, the application was struck off the roll. The applicant has since requested reasons for that decision. [2] At the commencement of the hearing, the court drew the applicant’s attention to two preliminary objections raised by the first respondent. The first was that the application had been filed out of time and that the applicant had not sought condonation. The second was that the applicant had not attached the record of proceedings in the court a quo and the judgment of that court refusing him the leave to appeal. [3] On the application being filed out of time, the applicant insisted that he had filed the application within the prescribed 10-day period. He submitted that he had lodged the application on 2 March 2026, which he regarded as the final day of the 10-day dies induciae. He said it had only been stamped by the Registrar on the following day, 3 March 2026. On that basis, he maintained that the application had been filed on time. Judgment No. SC 49/26 Chamber Application No. SC 223/26 2 [4] On the absence of the record of proceedings and the judgment of the court a quo, the applicant first indicated that although the judgment had been made available on 27 February 2026, by that time he had already prepared his application for filing on 2 March 2026. He said he could not therefore have attached the judgment but had, in any event, done so in his answering affidavit. [5] However, the bulwark of the applicant’s argument on the absence of the record of proceedings and the judgment of the court a quo was that there was no rule requiring him to attach them and that, at any rate, s 2 of the Supreme Court Act [Chapter 7:13] makes no distinction between a judgment, a court order and a decision. Manifestly, this was ill-conceived. [6] The applicant did raise a preliminary objection of his own. He alleged that the first respondent did not have the requisite locus standi to oppose the application. He submitted that the first respondent’s mandate as executor of the estate had been discharged by the third respondent on 10 January 2025. [7] Perhaps in order to appreciate the nature of the applicant’s objection on locus standi, a brief word on who the parties to this application were and what the substantive dispute was all about is necessary. [8] The substantive dispute was about an immovable property. It was under the jurisdiction of the second respondent, the City of Mutare as the local authority. The applicant claimed rights, title and interest in it by virtue of an alleged cession to him by some deceased person during her life time. The first respondent had been appointed the executor dative to the estate of the deceased. The third respondent, the Master of the High Court, was just a nominal party to the proceedings on account of his powers and duties over deceased estates. [9] The applicant is desirous of reviving some order of the court a quo given way back in Judgment No. SC 49/26 Chamber Application No. SC 223/26 3 September 2006. That order became superannuated. The applicant claimed it is that order which confirmed the cession of the property to him. [10] In the court a quo, the applicant’s application to revive the court order aforesaid was struck off the roll with costs on an attorney and client scale. His application for leave to appeal that judgment was dismissed. [11] When I asked, during the hearing before me in Chambers, why he had cited the first respondent in the first place but then gone on to object to the first respondent’s appearance on the basis of locus standi, the applicant did not provide a coherent answer. If I got his argument properly, his position was that the deceased’s estate having been wound up and the first respondent’s executorship having been formally terminated, he (the applicant) was merely confirming the absence of locus standi of the first respondent as had already been raised by the court a quo. According to him, the matter before me should proceed unopposed. [12] The applicant’s arguments were incoherent. His position was incompetent. I struck the matter off the roll for a number of reasons, not least the fact that the application had been filed out of time. Although the delay was only one day and might well have been excusable, the applicant did not seek condonation despite being prompted. [13] In Makwabarara v City of Harare SC 139/20 at p 5, MATHONSI JA stated as follows: “The law on condonation is settled now. A party that fails to comply with the Rules of court is required to apply for condonation for the failure to do so. Condonation is an indulgence granted by the court when it is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules.” [14] An infringement of the rules can only be fixed by seeking condonation. This aspect was sufficiently canvassed with the applicant during the hearing. He was adamant that his application had been filed timeously. But that was not correct. He simply did not appreciate his breach of the rules. He could not be granted that which he refused to seek. The application was improperly before the Court. Judgment No. SC 49/26 Chamber Application No. SC 223/26 4 [15] Rule 50 (2) requires that the record of proceedings and the judgment of the court a quo refusing leave be attached. It reads: “An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it— (a) … (b) a copy of the proceedings before the High Court when leave to appeal was refused, together with the judgment, if any;” [16] Section 2 of the Supreme Court Act which the applicant relied on is not relevant. [17] The applicant admitted that the judgment of the court a quo was availed on 27 February 2026. His application was filed on 3 March 2026. It was possible for him to attach the judgment. He gave no coherent reason why he did not. Furthermore, he failed to attach the record of proceedings a quo. His application could not be saved. [18] The reasons for the judgment of the court a quo are necessary in weighing up the prospects of success. In an application akin to this one, in the case of Hove v Zimphos Ltd & Ors SC 8/18, para (11), the Court stated: “Neither the two judgments of the Labour Court dismissing his appeal and his application for condonation nor the record of proceedings was attached to his papers. In addition, nothing has been averred which shows an improper exercise of the discretion of the Labour Court which dismissed the application for condonation. The fact that the court’s decision was not to the applicant’s liking is insufficient to invoke the limited powers which the Supreme Court has to interfere with a judicial exercise of discretion by a primary court.” [19] An application for leave to appeal is not the appeal itself. But it has to be shown that there are prospects of success of the appeal. It becomes difficult to weigh up these prospects in the absence of the record of proceedings and the judgment against which leave to appeal is being sought. This was another reason for striking the application off the roll. [20] On the issue of locus standi , I found the attitude of the applicant to be uninformed. Despite engaging him on this aspect as well, he was equally unflinching. Yet the position is quite plain. One who drags another to court cannot possibly object to their standing when they answer back. Even from a common-sense point of view, it is unreasonable to sue a person and then contend that he or she has no right to defend themselves. In the Judgment No. SC 49/26 Chamber Application No. SC 223/26 5 present matter, the applicant actually pressed for the application to be determined on an uncontested basis arguing that only the first respondent had filed a notice of opposition which, to him, was invalid. [21] It was for the reasons above that the application was struck off the roll. [22] I ordered costs on the higher scale as prayed for by the first respondent because the applicant was plainly obdurate. The first respondent raised the preliminary objections in his notice of opposition. Instead of pausing to think and possibly seek advice or research the points himself, the applicant pressed on in advancing incompetent positions of the law. Despite attempts at explaining the situation to him, he remained unmoved. [23] Thus the application was struck off the roll with costs on the attorney and client scale. Gonese & Ndlovu, 1st respondent’s legal practitioners.