Trans Africa Oil Limited v Willred Minerals and Energy (Private) Limited and Another (No. SC 115/26) [2026] ZWSC 18 (27 August 2026)

1Judgment No. SC 53/26Chamber Application No. SC 115/26 REPORTABLE

(53) TRANS AFRICAN OIL LIMITED v

(1) WILLRED MINERALS AND ENERGY PRIVATE LIMITED

(2) HALGOR ESTATE PRIVATE LIMITED SUPREME COURT OF ZIMBABWE HARARE: 5 MARCH 2026, 18 MARCH 2026 & 27 AUGUST 2026 G.R.J. Sithole with K. Sabao, for the applicant S. Chigumira, for the first respondent CHIWESHE JA: This is an application for condonation for late noting of an appeal and extension of time within which to file the notice of appeal. The application is made in terms of r 50(3) of the Supreme Court Rules, 2025 (‘the rules’). The applicant intends to appeal against the whole judgment of the High Court of Zimbabwe (the court a quo) given at Harare on 5 June 2025. BACKGROUND FACTS The applicant, Trans Africa Oil Limited, is a company registered in the British Virgin Islands. The first respondent is Willred Minerals and Energy (Private) Limited and the second respondent is Halgor Estate (Private) Limited. On 10 November 2021, the applicant and the first respondent entered into an agreement in terms of which the applicant supplied fuel to the first respondent on credit. The second respondent provided security for the first respondent’s obligations by binding itself as guarantor and co-principal debtor and causing the registration of a 2Judgment No. SC 53/26Chamber Application No. SC 115/26 Surety Mortgage Bond Number 3414/2022 its over immovable property. Pursuant to the agreement, the applicant supplied fuel to the first respondent between July 2021 and November 2022, to the total value of US$1,471,423.54. The fuel was released by the National Oil Infrastructure Company of Zimbabwe (NOIC) upon the applicant’s instructions. The first respondent breached the agreement and failed to pay for the fuel supplied. Consequently, the applicant instituted proceedings a quo seeking payment of US$1,471,423.54, together with interest at the rate of 8% per annum, compounded monthly, from 31 May 2022 to the date of full and final payment. In response to the applicant’s claim, the first and second respondents raised a special plea. They contended that the Fuel Supply Agreement, the Guarantee and Indemnity Agreement, and the Surety Mortgage Bond were void ab initio for illegality. They argued that the parties concluded and performed the Fuel Supply Agreement before obtaining the requisite Exchange Control approval in terms of s 11(1) of the Exchange Control Regulations, 1996 (SI

In response to the special plea, the applicant contended that the issue cannot be determined on the pleadings alone because it raises material disputes of fact requiring resolution at trial. The applicant further submitted that the special plea was premature and that evidence, including from the Exchange Control Authority, was necessary to establish the alleged illegality. With regard to the question of material disputes of fact, the court a quo found that no material dispute of fact existed warranting the leading of oral evidence. It found that the parties agreed that they concluded and partly performed the Fuel Supply Agreement before obtaining 3Judgment No. SC 53/26Chamber Application No. SC 115/26 Exchange Control approval. It held that the issue is one of statutory interpretation concerning the legality of the agreement, which falls within the province of the court rather than the Exchange Control Authority. Accordingly, the court dismissed the applicant’s preliminary objection and upheld the respondents’ entitlement to raise the issue of illegality by way of a special plea. On the question of the legality of the agreement between the parties, the court a quo found that the Fuel Supply Agreement was void ab initio. It found that the illegality was compounded by the fact that the parties concluded and partly performed the contract without first obtaining the Exchange Control approval required under s 11 of the Exchange Control Regulations, 1996 (SI 109/1996), notwithstanding that such approval was a condition precedent under the agreement. It held that contracts concluded in contravention of the law are illegal and unenforceable. It therefore upheld the respondents’ special plea and dismissed the applicant’s preliminary objection on the alleged disputes of fact. It further dismissed the applicant’s claim with costs. Aggrieved by the decision of the court a quo, the applicant seeks to appeal against the decision of the court a quo . However, it is out of time, hence the present application for condonation for late noting of the appeal and extension of time within which to appeal. In motivating the present application, the applicant argues that it did not waste time in seeking condonation and extension of time within which to appeal. However, it concedes that it has repeatedly filed several defective applications of this nature. In explaining the delay, it argues that its legal practitioners had mistakenly filed a defective notice of appeal in a rush to beat the dies induciae. 4Judgment No. SC 53/26Chamber Application No. SC 115/26 With regard to the prospects of success, the applicant argues that the intended appeal enjoys bright prospects of success. It submits that the court a quo did not take into account its submissions. It also submits that there were material disputes of fact which could not be resolved on the papers but through calling viva voce evidence at trial. The appellant further argued that the court a quo erred in failing to exercise its mind on the agreement as some of the transactions were made after the exchange control approval had been acquired and as such, the court a quo ought to have given effect to those transactions. The applicant further argues that the balance of convenience favours the granting of the present application. It argues that the first respondent cannot rely on the illegality of the agreement when it consumed fuel in excess of USD$1 million. It states that the first respondent does not dispute receiving and consuming the fuel in question and as such, the scales of justice should lean towards granting the application. The applicant further argues that in order to achieve finality in litigation, it should be allowed to exercise its right to appeal and the present dispute between the parties be put to rest once and for all on appeal. In contrast, the respondents argue that the applicant has failed to provide a reasonable explanation for its inordinate delay in noting the appeal. They argue that the applicant’s legal practitioners only attempted to file the appeal at the eleventh hour on the last day of the dies induciae. They argue that the applicant produced no independent evidence, such as an affidavit from registry officials, to substantiate their allegations of difficulties with the electronic filing system. They further contend that the applicant has failed to account for the numerous unexplained 5Judgment No. SC 53/26Chamber Application No. SC 115/26 delays between its successive defective applications for condonation. They argue that such conduct demonstrates gross negligence and a piecemeal approach to the litigation. The respondents further submit that the applicant has no prospects of success on appeal because the proposed notice of appeal is defective, prolix and fails to raise any sustainable challenge to the judgment of the court a quo. They maintain that the Fuel Supply Agreement expressly made Exchange Control approval a condition precedent, yet the parties executed and performed the agreement before obtaining the requisite approval. According to the respondents, the applicant repeatedly admitted in its pleadings that the agreement was concluded and transactions commenced without Exchange Control approval, rendering oral evidence unnecessary. The respondents also argue that the court a quo correctly upheld the special plea after finding that the agreement contravened s 11(1) of the Exchange Control Regulations by creating an obligation to make payment outside Zimbabwe before the requisite approval had been obtained. They submit that the subsequent grant of Exchange Control approval could not cure the illegality because the approval ought to have been obtained before the agreement was concluded and implemented. They therefore contend that the agreement was unlawful and unenforceable from inception. The respondents further contend that the applicant cannot rely on principles of equity, unjust enrichment or public policy because its claim before the court a quo was founded solely on breach of contract and specific performance. They argue that those doctrines were neither pleaded nor relied upon in the summons and declaration and cannot be introduced to defeat 6Judgment No. SC 53/26Chamber Application No. SC 115/26 the special plea. Accordingly, they submit that the applicant has failed to demonstrate any prospects of success and pray that the application for condonation be dismissed with costs. PRELIMINARY ISSUE During the course of preparation of this judgment, the Court's attention was drawn to a recent decision of the High Court, Levi v Magaya HH 153/26 (the Levi case), which appeared to address legal issues substantially similar to those arising in the present matter. In the interests of fairness and in keeping with the audi alteram partem principle, the Court considered it appropriate to invite the parties to address it on the relevance, if any, of that decision to the determination of this application. Accordingly, through the Registrar, the parties were directed to file supplementary submissions on the judgment. In response, the applicant filed its submissions on 12 June 2026. The respondents filed their submissions on 16 June 2026. However, on the same day, the respondents filed a notice of withdrawal of their submissions. Nonetheless, on 22 June 2026, the applicant filed its submissions in response to the respondents’ submissions. The court will therefore proceed to determine the present matter in light of the submissions by the applicant. THE APPLICANT’S SUBMISSIONS ON LEVI v MAGAYA HH 153/26 The applicant submits that the court a quo erred in upholding the respondents’ defence of illegality, arguing that the Fuel Supply Agreement does not contravene the Exchange Control Regulations and is therefore valid and enforceable. It contends that the respondents should not be permitted to rely on regulatory provisions to evade their obligation to pay a legitimate commercial debt. 7Judgment No. SC 53/26Chamber Application No. SC 115/26 The applicant further argues that the respondents, having freely entered into the agreement, received and utilised the fuel supplied, and provided a mortgage bond as security for the debt, are estopped from relying on illegality to avoid their contractual obligations. It submits that the respondents cannot retain the benefits of the agreement while simultaneously repudiating its validity. The applicant further contends that public policy favours the enforcement of commercial agreements and the prevention of unjust enrichment. In the alternative, it argues that even if the agreement were to be found to be tainted by illegality, the in pari delicto rule should be relaxed to prevent the respondents from retaining the benefits of the agreement without paying for the fuel supplied.

Issue for Determination

Whether or not the applicant has satisfied the requirements for success in applications of this nature.

The Law

What the Court has regards to when confronted with an application for condonation and extension of time within which to appeal has long been settled. An applicant is required, by r 51(3) to set out in the founding affidavit, the reasons why the appeal was not entered in time. He or she must give sufficient reasons to the satisfaction of the Court for the grant of the relief. As stated by MALABA JA (as he then was) in Maheya v Independent Africa Church 2007

(2) ZLR 319 (S) at 323A-C: “The question for determination is whether the applicant has shown good cause for the reinstatement of the appeal. In considering applications for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to 8Judgment No. SC 53/26Chamber Application No. SC 115/26 do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefor; the prospects of success on appeal; the importance of the case; the respondent`s interests in the finality of the judgment; the convenience to the court and the avoidance of unnecessary delays in the administration of justice.” (My emphasis) It is important to note that the factors that have to be considered are considered cumulatively and not in isolation from one another. See Fernicary Farm t/a Rutendo Farm v Des Moines Farm (Pvt) Ltd SC 82/25 at p 5 and Bwititi v Stanley Farms (Pvt) Ltd & Ors SC 112/21 at p

APPLICATION OF THE LAW TO THE FACTS.

1. Extent of delay and explanation thereof The judgment was granted on 3 June 2025. The applicant ought to have filed its appeal by 24 June 2025. It failed to do so. It filed a series of applications for condonation and extension of time within which to appeal under SC 418/25, SC 567/25, and SC 715/25. They were all struck off the roll for failure to comply with the rules. To date, the applicant has delayed in noting a valid notice of appeal by a year. Such delay is inordinate. In explaining the delay, the applicant attributes it to attempts to file the notice of appeal on the last day of the dies indiciae for filing the same. The notice of appeal was rejected by the Registrar of this Court. Thereafter, it encountered challenges with its series of applications for condonation for late noting of an appeal and extension of time within which to file the appeal. The applications were all struck off the roll. In my view, the explanation is not satisfactory. Since the applicant has demonstrated its desire to impugn the decision of the court a quo, such determination should be exercised vigilantly. 9Judgment No. SC 53/26Chamber Application No. SC 115/26 It is trite that a litigant seeking indulgence ought to put the court into confidence that the indulgence is not being sought only for the sake of asking for it. Condonation is not simply granted by the mere fact that a party has sought it. This was emphasized by ZIYAMBI JA in Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society S 34/17 at p 7 as follows: “An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. 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 light of the above authorities, condonation is thus an indulgence granted when the court is satisfied that there is “good and sufficient cause” for condoning non-compliance with the rules. Good and sufficient cause is assessed by considering, cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, or the prospects of its success. See Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd & Anor SC 58/18. In casu , the applicants’ explanation for the delay is unreasonable as the law protects the vigilant and not the sluggard. The applicant has failed to satisfy this requirement.

2. Prospects of success Having found that the explanation for the delay is not satisfactory and that the delay is inordinate, the applicant’s hope lies in the prospects of success of its intended appeal. In Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998

(2) ZLR 249 (S) at 251, it was stated that: “Where the explanation for the delay is far from satisfactory, the court will still exercise its discretion in favour of granting the indulgence of condonation provided the proposed appeal is arguable. The role of the judge in an application of this nature is to stand sentinel at the gates of the court guarding against those desirous of making a grand entrance into the court with unarguable appeals. In respect of those, the gate must be firmly shut.” 10Judgment No. SC 53/26Chamber Application No. SC 115/26 In casu, the applicant has raised 9 prospective grounds of appeal as follows: “GROUNDS OF APPEAL.

1. The court a quo grossly misdirected itself and erred at law in arriving at a decision which is devoid of any reasoning pertaining to why the arguments raised by the appellant were dismissed. A fortiori, the court's judgment failed to relate to the appellant's case thus rendering the judgment devoid of any judicial analysis on the issues raised by the appellant in resisting the special plea.