Munoda Memory Mano and Tashinga Party Mano v Regional Executors and Trust (Pvt) Ltd and Patricia Darangwa N.O and Master of the High Court N.O and Loice Bare and Takudzwa Mano and Tanaka Pamela Mano and Tadiwanashe Emmanuel Mano

### Preamble
1
HH 666-25
HCH 2074/24
---------


MUNODA MEMORY MANO

and

TASHINGA PARTY MANO

versus

REGIONAL EXECUTORS AND TRUST (PVT) LTD

and

PATRICIA DARANGWA N.O

and

MASTER OF THE HIGH COURT N.O

and

LOICE BARE

and

TAKUDZWA MANO

and

TANAKA PAMELA MANO

and

TADIWANASHE EMMANUEL MANO

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE, 24 	July 27 October 2025

Opposed Matter- Condonation

S Ushewokunze, for the applicant

L Ziro, for the 1st and 2nd respondents

T Jame, for the 4th respondent

No appearance for the 3rd, 5th to 7th respondents

MAXWELL J:   Applicants filed a chamber application for condonation of late filing of an application for review and extension of time within which to seek review.  The notice stated the grounds of the application as follows:

“1. On 22 February 2025 one Parirenyatwa Mano died at Harare.  Around 27 February 2025, the fourth respondent caused registration of the deceased estate of the late Parirenyatwa Mano (hereinafter called ‘the deceased’) under DR No 661/25.

2. Sometime around 27 and 28 February 2025, the third respondent made a decision to accept a document alleged to be a will of the deceased as the deceased’s will and issued letters of administration in favour of first and /or second respondent.

3. On 28 April 2025, applicants filed an application for review under HCHF 1685/25.

4. First and second respondents took a point that the application for review was filed out of time.

5. Applicants ought to have filed their application for review on or before 25 April 2025.

6. Applicants have withdrawn their application for review and decided to seek condonation for late filing of the application for review.”

The Founding Affidavit was deposed to by the first applicant.  She indicated that she was married to the deceased and second applicant is their surviving biological son.  She also indicated that the deceased is also survived by three extra-marital children some of who are fifth and sixth respondents.  She was married to the deceased in terms of the then Marriage Act [Chapter 37] now the Marriages Act [Chapter 5:17].  In her view the application for review ought to have been filed on or before 25 April 2025.  On the reasons for the day, first applicant stated that they had challenges mobilizing resources to secure the services of legal practitioners.  Further that they had several legal battles surrounding the deceased’s estate in an effort to safeguard her interests and those of the deceased’s children.  She pointed out four pending cases before this court with references HCHF 1557/25, HC 805/25, HCHF 1060/25 and HC 1112/25.

First applicant submitted that the review has good prospects of success on the basis of illegality, gross irregularity, fraud, speculation and malpractice.  She alleged that no party would be prejudiced in the matter.

The application was opposed.  Second respondent deposed to the opposing affidavit also representing first respondent.  He raised preliminary points that:

The application is fatally defective in that it cannot be filed as a chamber application and no legal basis has been set for same.

The applicant does not state the legal premise upon which the application is made in the founding affidavit.

There is no draft application for review attached to the application.

Costs of the withdrawn matter are not tendered.

On the merits, he stated that the reason for citing the first respondent is not explained.  He disputed that fifth and sixth respondents were born out of an extra-marital affair, and that first applicant is the sole surviving spouse of the late David Parirenyatwa Mano.  He pointed out that the deceased was customarily married to the late Auxillia Tambudzai Mazhuzha and the fourth respondent.  Second respondent disputed that the applicants were financially incapacitated as they filed four process being legally represented.  He pointed out that reference to IECMS queries is not supported by evidence.  Second respondent averred that there is no gross irregularity regarding the Will and the appointment of second respondent as an executor.  He pointed out that the issue of fraud is incapable of resolution under motion proceedings.  Second respondent submitted that the first applicant was not in a monogamous relationship with the deceased and without confirmation from the Court or a declaratory order she cannot force second and third respondents to accept that she is the sole surviving spouse of the deceased.  Second respondent pointed out that applicants instituted action proceedings seeking similar relief and using the same causa as the intended application for review.  He prayed for costs on punitive scale.

Fourth respondent also opposed the application.  She raised three preliminary points as follows;

The matter is lis pendens and should be struck off the roll.  She pointed out that HCHF 805/25 involves substantially the same parties, is based on the same facts and seeks similar relief.

There is no draft application for review attached to this application.

The application is not brought in terms of the rules.  Rule 62(1) of SI 202 of 2021 provides that a review shall be by way of court application yet applicants filed a chamber application.

On the merits, fourth respondent stated that first applicant deserted the deceased in 2001, having left Zimbabwe as an asylum seeker and making it impossible for her to return to Zimbabwe.  She pointed out that as a result of the first applicant’s failure to return, she assumed all material responsibilities for her children.  She asserted that first applicant’s position made it impossible to maintain a spousal relationship with the deceased and negated any claim to a continuing marital relationship.  She averred that the marriage between first applicant and the deceased remained only on paper as she was the de facto customary law spouse.  Fourth respondent pointed out that the computation of the period of delay by the applicant is wrong and the reasons advanced for the delay are neither satisfactory nor reasonable.  In her view, applicants are disgruntled by the manner and fashion that the deceased bequeathed his assets, their expectations were not met by the will and they seek to have it set aside.  To her, the litigation is rooted in bitterness.  She disputed any irregularities or illegality in the issuance of the letters of administration.  She denied the allegations of fraud speculation and malpractice and submitted that applicants made sweeping assertions that are not supported by factual or expert evidence.  She prayed for costs on a higher scale and the dismissal of the application.

In answer to the second respondent’s affidavit, first applicant stated that there is no mandatory provision that one must attach a draft application for review to the application for condonation for late filing of an application for review.  She stated that respondents had not tendered a taxed bill of costs under HCHF 1682/25 and that she is ready to pay once such a bill is tendered.  Further that first respondent is cited because it is mentioned in the deceased’s will.  She insisted that she had a civil marriage which subsisted up to deceased’s death.  In answer to the fourth respondent’s affidavit, she insisted that fourth respondent was in an adulterous relationship with the deceased.  She disputed that HCHF 805/25 was still pending as an order in her favour was granted.  She disputed deserting the deceased and stated that she would come back to Zimbabwe often times.

At hearing of the matter, the first, second and fourth respondents persisted with the preliminary point which are the subject of this judgment.

That a wrong procedure was adopted.

Mr Ziro submitted that applicants ought to have filed a court application in accordance with r 62 of Statutory Instrument 202 of 2021.  In response Mr Ushewokunze made reference to the heads of argument which cite r 58(13) of the High Court Rules 2021 which state that the fact what an applicant has instituted a court application when he should have proceeded by way of chamber application and vice-versa shall not be ground for dismissing the application in the absence of prejudice to the other party.  Reference was also made to the case of Chiangwa v AFM SC 5/23 in which r 58(13) was emphasized.

None of the respondents submitted that they suffered and prejudice as a result of the procedure adopted.  I am therefore not persuaded to uphold this point in limine.

That the applicants ought to have particularized the basis of the application.

First and second respondents submitted that the applicant’s pleadings do not inform them on what specific rule or legal principle the application is based.  Applicants made reference to r 58(4) submitting that the application is simple and easy to competent as the founding affidavit was made by a person who can swear to the facts or averments set the therein.  The response from the applicant seemed off.  The first and second respondents are not challenging deponent to the founding affidavit.  They pointed out an omission in the pleadings.  In Bushu v GMB HH 326/17 the court made the point that although there is no provision that an application must state in terms of which law it is made, it is desirable for astute legal practitioners to do so.  in the case of Environment Management Agency and Another v Angel Hill Mining Company (Pvt) Ltd and Others HH 706/21 it was stated that failure to state the rule of law in terms of which on application is made does not non-suit a party.  Accordingly, there is no merit in this point in limine and it does not succeed.

Failure to attach the draft application for review.

Respondents argued that the failure to attach the draft application for review disables the court from being able to assess the prospects of success.  Applicants insisted that it is not a requirement.  A consideration of the applicant papers leads to a conclusion that respondents are worried about form at the expense of substance.  Whilst it is true that a draft application for review enables the court to assess the prospects of success, in casu, the founding affidavit sets out the grounds upon which the review is to be founded in para 31.  In view of that therefore, the court is not hamstrung as regards the assessment of the merits of the intended application for review.  This point also fails.

The issue of the costs that were not tendered was not raised on the hearing date.  I will consider it abandoned.

In the final result, none of the preliminary points succeeded.  The following order is appropriate.

The preliminary points be and are being dismissed.

Maxwell J:………………………..

Ushewokunze Law Chambers, applicants’ legal practitioners

Takaindisa Law Chambers, first and second respondents’ legal practitioners

Sithole and James Legal Counsel, fourth respondent’s legal practitioners