Judgment No. SC 21/2018
Civil Appeal No. SC 89/16
The first respondent sued the applicant in the High Court alleging that during his
life time the deceased sold stand number 2699, Gwelo Township to it. In consequence whereof
it sought the following relief against his deceased estate:
1. An order for the setting aside by the second defendant of the distribution of Stand 2699
Gwelo Township to the beneficiaries of the estate Late Chemayi Joseph Mtize.
2. An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late
Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be
authorised to sign the transfer documents.
3. An order for the eviction of the first defendant from Stand 2699 Gwelo Township.
4. An order for payment of US$2 800-00 together with a sum of US$400-00 per month
from 1 December 2014 to date of eviction of first defendant and all those claiming
occupation in her name. Or alternatively an order for payment to the plaintiff by the
first defendant of the value of the said property currently US$60 000-00.
5. An order for payment of legal costs on an attorney client scale.
The applicant unsuccessfully defended the respondent’s suit in the court a quo with
judgment being given against her on 23 December 2015. If she intended to appeal against that
judgment she had 15 days from the date of judgment to note her appeal in terms of r 30 of the
Supreme Court Rules 1964. She however only approached this court on 26 February 2016 with
this application for condonation of late noting of appeal and extension of time to file the appeal.
By then she was 26 days out of time excluding weekends and public holidays.
The requirements for the application of this nature to succeed are well known as
outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:
1. The extent of the delay;
2