Kenneth Manyange & 3 Ors v Estate Late Rosemary Manyange (Represented by Patricia Chimhanda) & 5 Ors

### Preamble
1
HMT 76-20
CIV ‘A’ 49/19
---------


KENNETH MANYANGE

And

MARSHAL MANYANGE

And

CHRISTOPHER MANYANGE

And

PRECIOUS MANYANGE

versus

ESTATE LATE ROSEMARY MANYANGE (Represented by PATRICIA CHIMHANDA) (Executrix Testamentary)

And

PATRICIA CHIMHANDA

And

MANYASHA CHIMHANDA

And

DAVID KAZHANJE

And

MASTER OF THE HIGH COURT

And

LEGAL RESOURCES FOUNDATION

HIGH COURT OF ZIMBABWE

MWAYERA and MUZENDA JJ

MUTARE, 7th October 2020 and 5th November 2020

All four appellants in person

T. G Nenzou, for the 1st and 3rd Respondents

No appearance for the 4th, 5th and 6th Respondents

MUZENDA J: On 16 November 2019 the four appellants noted an appeal against the decision of the Master of High Court (5th Respondent herein) where he accepted the late Rosemary Manyange’s Will for the purposes of the administration of the estate. The four appellants outlined twenty-three (23) grounds of appeal contained on five typed pages.

It will not be necessary to repeat the grounds of appeal for the purposes of this judgment. The appeal was set down for hearing on 3 June 2020 after having been postponed earlier due to Covid 19 pandemic. On 3 June 2020 the first and third respondents raised preliminary points pertaining to the propriety of both the notice and grounds of appeal. It was argued that the appeal was fatally defective to such an extent that there was no appeal before the court. The appellants conceded to the defects and by consent of the parties in attendance the appeal was struck off.

On 7 October 2020 the Registrar re-enrolled the same record of proceedings in its original form, containing virtually the same pleadings originally placed before the court on 3 June 2020. The appellants had filed on 23 June 2020 what appears on paper to be “Appellants’ response to the Heads of Arguments.” At the hearing of the matter the appellants submitted that after the appeal was struck off the roll, they received a letter from the Registrar directing appellants to set the appeal for hearing else the appeal would be deemed abandoned by the appellants, that is why the appellants reacted by resetting down the defective appeal. The court reserved its determination on 7 October2020 in order to write a judgment on the position of this supposed appeal. The respondents submitted that they wondered why the “appeal” had been reset yet there was notice and grounds of appeal which were previously agreed to be defective.

The issue for determination is what is the effect of stricking off the matter from the roll?

In terms of Practice Direction 3/2013 the term “struck off the roll”

“shall be issued to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

In accordance with the decision  in Matanhire Vs BP & Shell Marketing Services (PVT) Ltd 2004 (2) ZLR 147 (s) and s v Ncube 1990 (z) ZLR 303 (SC) if a court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the court.

Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown reinstate the matter. On such terms as he/she deems fit.”

The above extensively cited practice Direction is clearly spelt out and this court wonders how the matter was reset without the amendment of the appeal filed by the four appellants.

Consequently there was no valid appeal which had been set for hearing on 7 October 2020 since the same appeal had been struck off on 3 June 2020.

MWAYERA J Agrees.________________________

Chibaya and Partners, 1st and 3rd Respondents legal Practitioners.