Buchwa Iron Mining Company (Pvt) Ltd v Vusani Diamond Grey Sibanda and Margaret Sibanda (in her capacity as the Executrix Dative of the Estate Late Absalom Nganunu Sibanda) and NJZ Resources Africa (Pvt) Ltd and NJZ Resources (HK) Limited and The Sheriff of Zimbabwe High Court, Gweru N.O

### Preamble
1
HB 169/25
HCBC119/25
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BUCHWA IRON MINING COMPANY (PVT) LTD

vs

VUSANI DIAMOND GREY SIBANDA

and

MARGARET SIBANDA

(in her capacity as the Executrix Dative of the Estate Late Absalom Nganunu Sibanda)

and

NJZ RESOURCES AFRICA (PVT) LTD

and

NJZ RESOURCES (HK) LIMITED

and

THE SHERIFF OF ZIMBABWE HIGH COURT, GWERU N.O

IN THE HIGH COURT OF ZIMBABWE

MUTEVEDZI J

BULAWAYO, 30 June and 17 October 2025

Opposed chamber application

A.Mtima , for the applicant

W.T.Mandinde, for the first respondent

No appearance for second to fifth respondents

MUTEVEDZI J: The applicant anchored its argument in this application, on the interpretation of r 32(8) of the High Court Rules, 2021 (the Rules). Although that interpretation is not the ratio of my decision herein, my view is that the rule was never intended to be a reprieve to a litigant who deliberately cites a dead person as a party to proceedings with the full knowledge that such person is deceased at the time the suit is instituted, to be able to later change his/her/its mind and substitute the deceased with the executor of his/her estate.

The background to the dispute is that, on 28 March 2023, the applicant, a duly registered mining entity, filed a court application challenging the confirmation of a sale in execution. The applicant alleged that the sale in execution was pursuant to a judgment debt granted  in favour of the first respondent and others, yet the property which was the subject of the sale belonged to it and had been attached at its Mukwakwe Plant at Site 338 in Mberengwa. It further argued that it had not been a party to the litigation which led to the sale in execution. Put differently, the applicant said it had nothing to do with the judgment debt. Vusani Diamond Grey Sibanda (the first respondent herein), was the highest bidder at the sale in execution which was conducted by the fifth respondent. In addition, the applicant further argued that the sale itself had been conducted without its knowledge.

The applicant’s application challenging the confirmation of the sale was set down for hearing on 1 October 2024. On the date of hearing, the applicant then sought the removal of the application from the roll ostensibly to enable it to serve the application on the second respondent Margaret Sibanda (Margaret). Margaret had been appointed executrix dative of Estate Late Absolom Sibanda, after the passing on of Absolom Nganunu Sibanda (Absolom), who, at the inception of the proceedings, was the original second respondent. The applicant later filed a notice of substitution of a party in terms of r 32(8) of the Rules and thereafter, on 20 December 2024, issued a draft notice of set down. It later turned out that the notice of set down was irregular in more ways than one. On 5 February 2025, the registrar of this court advised that that the matter had been deemed abandoned/inactive and had consequently been dismissed in accordance with r 66(3) of the Rules. It is that decision of the registrar which directly led to the present application. In it, the applicant sought an order which was couched in the following terms:

The application for condonation and reinstatement in case number HCCAPP140/23 be and is hereby granted.

The Applicant shall file the notice of set down within 7 days of the date of this order.

No order as to costs.

The first respondent opposed the application. The rest of the respondents neither filed any papers nor appeared on the date of the hearing. At the hearing, Mr Mandinde who appeared for the first respondent said that much as he would abide by the papers filed already, the first respondent’s major contention related to the preliminary objection which he believed was dispositive of the matter.  The argument forming the core of the objection in limine was that there was an improper addition of a new party to the proceedings. Counsel said the addition of Margaret Sibanda (the executrix dative), of the Estate late Absolom was irregular. It was so because, so the argument went, the applicant was, when it first instituted the suit, well aware that Absolom was deceased. Absolom had died on 18 February 2021. That information had apparently been conveyed to the applicant’s legal practitioners on 3 March 2023 before the initial application to challenge the confirmation of the sale was filed on 26 April 2023.  The applicants, so it was again maintained, were aware at the time of filing of notice of set down that Absolom was deceased. As such, the matter set down for hearing on 31 October 2024, could not like the first respondent had insisted at that hearing, not have been removed from the roll. It was fatally defective and ought to have been struck off the roll.  It was Mr Mandinde’s further contention that the matter remained fatally defective to this date. As such, it could not be reinstated because the substitution of Absolom as the second respondent by someone else was impermissible. He said r 38(2) did not cater for the substitution of a party who was dead before the proceedings commenced. Instead, it was intended to deal with situations where a party died after the commencement of the suit in issue.

In response, Mr Mtima for the applicant, insisted that the applicant had not been aware of the death of the second respondent at the time the notice of set down was filed. He argued that the law regulating the procedure to be taken pursuant to the death of a party to proceedings is found under r 32(8). In line with that, so he said, the applicant had filed a notice of substitution of the second respondent with the executrix dative of his estate, on 20 November 2024. He further contended that the respondent retained a procedural right in terms of r 32(10) to challenge that substitution within fifteen (15) days after being served with the notice of substitution. It had failed and/or neglected to do so. It therefore was barred from pursuing it belatedly.

The issues for determination

From the above arguments, the question for determination is whether or not the application is properly before me; if it is, whether or not the applicant has made a case for the grant of both the applications for condonation and reinstatement.

The preliminary objection

The objection in limine was squarely based on whether or not a party can be substituted in terms of r 32(8) if he/she predeceased the claim against him/her. Subrule (8) of r 32 is predicated on Subrule (7) which provides as follows:

(7) No proceedings shall terminate solely as a result of the death, marriage or other change of status of any person unless the proceedings are thereby extinguished.”

In turn, and on its part, subrule (8) is couched in the following terms:

“(8) If, as a result of an event referred to in subrule (7), it is necessary or desirable to join or substitute a person as a party to any proceedings, any party to the proceedings may, by notice served on that person and all other parties and filed with the registrar, join or substitute that person as a party to the proceedings, and thereupon. Subject to subrule (10), the proceedings shall continue with the person so joined or substituted as the case may be, as if he or she had been a party from their commencement:

Provided that –

Except with the leave of the court, no such notice shall be given after the commencement of the hearing of any opposed matter;

the copy of the notice filed on the person to be joined or substituted shall be accompanied by copies of all documents previously filed or served in the proceedings.” (own emphasis added)

My understanding of the above sub rules, is that it is permissible for a party to substitute a deceased party with the executor of his/her estate if the prescribed conditions are met and the party died after the commencement of the proceedings.  Yet in this case, the argument is hardly that the citation or the substitution of the executrix dative for the late Absolom is not fathomable at law. It is simply that the applicant’s initial citation of Absolom as the second defendant, in the full knowledge that he was deceased turned the entire suit into a nullity.  The further argument was that, once it became a nullity, Absolom could not be substituted by anyone.

The correctness of the above arguments cannot be debated. To begin with, subrule (7) speaks to ‘termination’ of proceedings as a result of death among other eventualities. The synonyms of the word terminate include ‘stop’; ‘end’; ‘abort’; ‘close’; and ‘finish’; among others. It therefore envisages a scenario where something would have commenced or started. Proceedings cannot terminate before they have begun. Subrule (8) only kicks in after the occurrence of any one of the events stated under subrule (7). Had Absolom died after the commencement of the proceedings, the substitution in issue would have been a no brainer.  It is, in my view, therefore legally impermissible to substitute a party who was deceased at the time the proceedings commenced using the provisions of subrules (7) and (8). To me, it equally seems immaterial whether or not the party seeking the substitution was or was not aware at the time of institution of the proceedings, that the party in question was deceased. In any case, the drafters of the law, in coming up with the provisions, would not have contemplated that ordinarily a litigant would opt to cite a deceased person as a party to any proceedings in court.

What I point out above and the remarks I make would unfortunately remain obiter in this application. The arguments would have made more sense had they been raised against the merits of the case in an effort to show that the applicant’s prospects of success on the hearing of the main application would be seriously diminished if that argument were raised.

Yet in this case, counsel took the point to show that both the applications for condonation and reinstatement are not properly before me because of the so-called ‘irregular’ substitution of the second respondent for Absolom. I have already stated that there is nothing preliminary about the argument.  It could only have been preliminary if the impugned substitution had occurred in the instant application. Instead, it happened and was effected in the main application which is sought to be reinstated. The first respondent must take that objection then if it is desirous of opposing that substitution. My view is therefore that, it is the court which will hear the main application which is best placed to determine the contested issues.

In the circumstances, the preliminary objection has no merit and must be dismissed.

The merits

I indicated earlier that the first respondent’s opposition of the application on the merits was tepid, if it was there at all.  That notwithstanding, the applicant was still required to demonstrate why I should condone his non-compliance with the law and reinstate his matter.

The law on condonation and reinstatement of matters

On condonation, the Supreme Court, in the case of Reserve Bank of Zimbabwe v Mufudzi & Ors S 29-18 held that:

“In any event, condonation is an indulgence granted at the discretion of the court… and is not a right obtainable on request.  In an application for condonation, a court considers, among other things, the length of the delay, the reasonableness of the explanation for it, the prospects of success, and the need for finality in litigation.”  (My emphasis)

In Treger Plastics (Pvt) Ltd v Dube S-8-25, it was held that some of the considerations a court must turn to in determining an application for condonation are the extent and reasonableness of the delay; and the prospects of success in the main. Even more importantly, the applicant referred me to the case of Chiweza and Anor v Mangwana & Ors HH-186-17, whose ratio is that a party who has failed to comply with the rules of court has an onus to convince the court that he has a good excuse for the delay and that condonation is not there for the asking.

Regarding reinstatement, in the case of Maheya v Independent Africa Church S-58-07 at p 5, MALABA JA (now CJ) described the requirements for an application for reinstatement as follows:

“The question for determination is whether the applicant has shown a cause for the re-instatement 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 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 therefore; 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”

As is evident, many of the factors overlap in both applications for condonation and reinstatement.

Application of the law to the facts

In paragraph 19 of the applicant’s founding affidavit, which was deposed to by its legal representative, one Abel Tatenda Mtima, that legal practitioner, in his haste to explain the extent and reasonableness of the delay among other matters, made shocking disclosures. He stated thus:

“I instructed our receptionist, Mrs Luwizer Takaza, to draft and file the notice of set down. She erroneously drafted the notice of set down as unopposed. I attach hereto supporting affidavit by Mrs Luwizer Takaza and the irregular notice of set down dated 20th December 2024 marked as Annexure G.” (the bolding is my emphasis.)

While it is accepted that a notice of set down is not a pleading but a legal notice to the other party that a date for the trial of hearing of a matter has been set, it remains a critical document in the litigation of disputes. If a litigant hires out a legal practitioner to represent him/her, the expectation is that such legal practitioner will attend to all issues including notices of set down. As shown by the problems that beset this case, a notice of set down is a no less important part of the litigation process. A legal practitioner can only downplay it at his own expense.

Counsel for the applicant went on to allege that the notice of opposition in this case was irregular because it was titled unopposed instead of opposed. But, he was just hiding behind his finger. What made the notice egregiously irregular was not that issue.  Instead, it was the fact that he abdicated his role and left it for an employee who knew nothing about court processes. The courts have repeatedly complained of legal documents that are so poorly drafted as to be incomprehensible and have wondered whether some legal practitioners put their minds to such documents at all before filing them. See the case of Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union S-20-16; and Ahmed v Docking Station Safaris Private t/a CC Sales S-70-18 where BHUNU JA decried the carelessness of counsel with the following remarks:

“Such tardiness is least expected in court process that is drafted by a legal practitioner. Legal practitioners must be meticulous in drafting pleadings and process. Shoddily drawn processes confuse the court and the other party.”

The disclosure by counsel in this instance may be the explanation to some of the unacceptable pleadings and processes that judges deal with. Receptionists in law firms may be practicing law through the back door with the full blessings of their principals. It would have been better, if the allegation was that the receptionist had done that without authority.  But for a legal practitioner to proudly admit it under oath and seek condonation on that basis can only betray the height and brazenness of the unethical practices.

After, the above confessions, counsel suddenly ditched that line of argument. I am not sure whether the abandonment was out of a realisation that it was an indictment on his integrity and competence or because he thought that the drafting mistake that had been made by his receptionist was an insignificant matter. He did not seek any condonation for that. Rather he started arguing that the mistake, not to file the notice of set down in time was not an illustration of his law firm’s ineptitude. Instead, he immediately started singing his own praises. He said that he quickly ran around when he was notified that the matter had been dismissed demonstrated “our utmost diligence and competence in trying to secure and serve our client’s interests… and demonstrates our good faith and commitment to legal process.” Yet in reality, counsel’s conduct actually demonstrated everything except the attributes he imagines above. A legal practitioner who leaves his client’s legal issues to be dealt with by a lay person employed in the capacity of a receptionist resulting in the legal and financial jeopardies that the applicant in this case must be facing, has very scanty, if any regard for that client’s affairs.

Despite the unjustifiably intrepid attempt to divert attention from the real issue, in paragraph 29.11 of the founding affidavit, counsel returned to the core of the matter. Thereat, he admitted that an irregular notice of set down was filed on 20 December 2024. But for the umpteenth time, he once again refused to take responsibility for his indiscretions and alleged that the irregular notice of set down was filed within the specified timeframe. But surely, that defective process was filed within the accepted timelines would not assuage the omissions and make the situation any better. The same goes for the arguments about the appointment of the executor and that the law firm closed for the festive season. The fact remains that the arguments were and are blatantly unreasonable explanations for the delay in filing a proper notice of set down which led to the dismissal of the matter by the registrar. A legal practitioner and his client who throw down everything for the sake of having fun, and ignore to file documents at court can only have themselves to blame when things turn out this way.

When it missed the timelines within which to file the notice of set down for the reasons I have highlighted, the applicant had opportunity to seek reinstatement within the times prescribed. In keeping with its counsel’s tardiness, that deadline was once again missed leading to the requirement for it to seek condonation for late filing of the application for reinstatement.  There was therefore not just one mistake but a litany of them. In the end, the problems were clearly of the applicant or at least his counsel’s deliberate making. The applicant made his bed of thorns. He must lie on it.

In the end the period of the delay, running into over a couple of months, may not have been outrageously inordinate but the supposed justification for what caused it  would remain one of the most preposterous and ludicrous ones that any court is likely to ever hear of.  It depicts a complete renunciation of a legal practitioner’s responsibilities. It may be the reason that he, instead of the applicant’s functionaries, had to depose to the founding affidavit.

In addition, the applicant’s prospects of success are diminished if the argument made in motivating the preliminary objection is considered. I do not need to replicate it here because I exhausted that discussion earlier save to emphasize that Absolom died in 2021. The main application was only filed in April 2023. There is argument that the applicant was informed of that death but was obstinate and pursued a dead litigant. That later complicated issues for the applicant as it sought the impugned substitution of Absolom with his executrix dative. Prima facie, it again shows the disregard for the rules which the applicant and its counsel appear to labour from if their submissions in this case are anything to go by. In Chijaka v Taguta HH-308-15, at p.3 of the cyclostyled decision, this court held that:

“A deceased estate can be briefly described as an aggregate of assets and liability of the deceased. The totality of the rights, obligations and powers of dealing therewith vests in the executor, so that he alone can deal with them. Only the executor can sue and be sued for and on behalf of a deceased estate. The appellant was in the court a quo sued in her personal capacity wherein contractual liability for an agreement she was not part to was an issue. Strictly speaking there was no respondent before the court a quo, there was legally no party being sued, thus rendering, the proceedings a nullity.”

In Doves Funeral Assurance (Pvt) Ltd v Harare Motorway (Pvt) Ltd and Ors S-64-23, the Supreme Court cited with approval the remarks made in the case of Essop v S, [2016] ZASCA 114, that: -

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal”

The authorities which apply to the reinstatement of appeals apply with equal force in applications for reinstatement of any other matter. I made criticisms of the applicant’s case from the information given in the affidavits and the annexures. In the end however, the applicant completely hamstrung itself from demonstrating that it has any prospects of success by failing to attach the record dealing with the main application.  All it did was to simply refer me to it. As was stated in Doves Funeral Assurance (Pvt) Ltd (supra), the above statement does not constitute an “invitation by the applicant in the founding affidavit for me to have reference to that file. Secondly, there is no such obligation [to plough through the record], on a judge dealing with such an application. [Instead, such prospects of success] should be immediately ascertainable from the applicant’s founding affidavit.” The applicant’s affidavit was bereft of any such averments.

Further, the first respondent in its opposing affidavit, also said in the main application, it questioned the legality of the service of the application in Zimbabwe, on the fourth respondent, a clearly peregrinus company.  It still insists that such service was defective. In the application, the fourth respondent was cited in the application as: -

“a foreign company duly incorporated as such in terms of the laws of Hong-Kong, Special Administrative Region of the People’s Republic of China and carrying on business of global minereal commodity trading with the company’s registered address being 20th Floor, Beautiful group Tower, 77 Connaught Road, Central Hong-Kong, Special Administrative Region of – the People’s Republic of China.”

Arguments such as the above may be unassailable. They further demonstrate how tenuous the applicant’s prospects of success in the main case are.

The applicant’s obstinacy and intransigency would have been understandable if it didn’t have any other recourse. Yet it did and still does. The route of withdrawing the application and refiling it was all along open to it. See the case of Makunura v Zvarevashe HH-277-23.

Disposition

All said and done, and taking the considerations I discussed above in their totality, all seem to militate against the grant of both the applications for condonation and reinstatement. I am therefore constrained to reach the conclusion that both have no merit.

Costs

In relation to costs, the rule is that ordinarily, costs follow the cause. I agree that the applicant flagrantly pursued lost causes in the face of admonishments to the contrary. Despite claiming such in the papers, I however didn’t hear the first respondent seriously motivating me to order the payment of costs on a punitive scale. I therefore have no reason to depart from the ordinary position.

Accordingly, I direct as follows:

Both the applications for condonation for late setting down of case No. HCCAPP 140-23 and for its reinstatement be and are hereby dismissed in their entirety.

The applicant shall pay the first respondent’s costs of suit

MUTEVEDZI J………………………………

Jiti Law Chambers, applicant’s legal practitioners

Maseko Law Chambers, first respondent’s legal practitioners