In Chambers in terms of Rule 31 of the Rules of the Supreme Court (“the Rules”).

This is an application for an extension of time in which to note an appeal against the whole judgment of the High Court given on 27 February 2008.

The applicant and the third respondent were married to each other until the High Court granted him a decree of divorce on 22 February 2005 in case no. HC8877/03. The High Court made an order with regard to the division of the assets of the spouses.

Of relevance to the determination of this application is the fact that the third respondent was awarded 80% of the market value of the matrimonial house situated at Stand No.2711 Mahogany Circle, New Marlborough, Harare (“the property”). The applicant was awarded 20% of the market value of the matrimonial house.

The order further directed that:

“5. If the parties cannot agree on the value of the matrimonial home within ten (10) days of the date of this order, the property is to be evaluated within 30 days thereafter by a registered firm of Estate Agency agreed upon by the parties legal practitioners or failing such agreement by an Estate Agent nominated by the Registrar of this Court.

6. The cost of evaluation are to be borne by both parties in equal shares.

7. The plaintiff shall pay to the defendant on or before the 1st of November 2005, 20% of the net value of the property.

8. Failing compliance with the provisions of clause 7 above, the matrimonial home shall be sold on the open market to the best advantage and the net proceeds therefrom to be shared between the parties as set out in the paragraph above.”

On 16 June 2004, the applicant had obtained, from the High Court, an interdict prohibiting the second respondent from registering transfer of the property without her prior written consent.

On 11 August 2005, the first respondent entered into an agreement of sale with the third respondent in terms of which he sold and she purchased the property for $750,000,000. She paid the purchase price to the third respondent's conveyancers.

At the time she entered into the agreement of sale, the first respondent was not aware of the court order awarding the applicant 20% of the value of the property.

When she subsequently got to know of the order, she raised the question of its possible effects on the sale of the property. The third respondent assured her that the order would not affect transfer of the property into her name provided the applicant was paid the 20% share of the value of the property.

Upon request by the third respondent, she authorized the release of $150,000,000, which was 20% of the purchase price, into his bank account for payment to the applicant.

The applicant confirmed, in the founding affidavit, that an amount of $149,000,000 was paid into her bank account.

After the payment of the purchase price by the first respondent, the applicant instituted an appeal against the order of the High Court.

A perusal of the record in case no. HC8877/03 shows that the appeal had been noted out of time.

It appears that there was an application for an extension of time in which to note the appeal which was granted.

The Notice of Appeal, however, remained fatally defective for non-compliance with Rule 29(1)(d) of the Supreme Court Rules. Under the heading 'Grounds of Appeal' it is stated as follows:

“1. With new evidence before the court, the court a quo's apportionment of shares in the matrimonial house called House No.2711 Mahogany Circle, New Marlborough, Harare is amendable.

2. Without all evidence, the court a quo failed to award Stand 6839 Borrowdale.”

By no stretch of imagination can it be said that what is stated constitutes grounds of appeal against the order given by the court a quo on 22 February 2005 in case no. HC8877/03?

In light of the appeal which the applicant had purported to institute, the third respondent sought to cancel the Agreement of Sale.

The first respondent rejected the cancellation and commenced action in case HC1545/06 claiming an order against the third respondent of specific performance of his obligation to transfer the property into her name. She also claimed an order of upliftment of the caveat of 16 June 2004 and eviction of the applicant and all those claiming the right of occupation of the property through her.

The third respondent did not appear at the trial to oppose the claim. A default judgment was entered against him. That had the effect of confirming the third respondent's right to transfer of the property.

The court a quo found that the first respondent had adduced sufficient evidence to establish her entitlement to an order of upliftment of the bar. It granted the order. The decision took into account the fact that the applicant had not adduced evidence in opposition of the granting of the order.

The applicant had defended the claim on the ground that the order of 22 February 2005 gave her a real right in the property.

The court held that her right was to have 20% of the proceeds of the sale of the house. It held that the right was enforceable against the third respondent and could not operate to defeat the transfer of the property to the first respondent in terms of the Agreement of Sale.

The judgment was given on 27 February 2008.

The Registrar had given notice to the parties, through the roll of the court relating to unopposed matters for that day, that the judgment was to be handed down.

Whilst the legal representative of the first respondent attended court to note the handing down of the judgment; neither the applicant nor her legal practitioner attended.

No appeal was instituted against the judgment within fifteen (15) days as is required by Rule 30(a) of the Supreme Court Rules.

The applicant averred, in the founding affidavit, that she had knowledge of the judgment for the first time on 22 August 2008 when a copy of it was served on her by the Deputy Sheriff.

On 26 August she filed a notice of appeal with the Registrar. The document contained all the formalities required by Rule 29 of the Supreme Court Rules to be stated in a Notice of Appeal.

Strict compliance with the mandatory requirements of the provision of Rule 29 suggests that the applicant had read the relevant Rules before noting the appeal.

The Notice of Appeal was, however, fatally defective because it was filed six months after the date the judgment appealed against was given.

Rule 30(a) of the Supreme Court Rules had not been complied with.

No application for condonation of failure to institute the appeal within fifteen (15) days of the date the judgment was given and extension of time in which to appeal was made in terms of Rule 31 of the Supreme Court Rules.

The explanation given by the applicant for non-compliance with the Rules was that she was a self-actor. She said she did not know that she was required to make an application for condonation of non-compliance with Rule 30(a) of the Supreme Court Rules and extension of time in which to appeal.

She said she did not know that the Notice of Appeal was defective.

On 13 November 2008, the first respondent's legal practitioners wrote to the Registrar drawing her attention to the defective Notice of Appeal. The letter was copied to the applicant.

Notwithstanding the fact that the letter made it clear that the effect of the defective Notice was that there was no appeal against the judgment, the applicant did not act to regularize the situation.

On 25 November 2008, the Registrar wrote to the first respondent's legal practitioners accepting the contention that there was no appeal against the judgment of the High Court given on 27 February 2008. The letter was copied to the applicant.

She did not act immediately to secure compliance with the Rules of Court. It was sixteen (16) days later that the applicant made an application for extension of time in which to appeal.

The explanation for failure to act, after having been made aware of the defective Notice of Appeal and consequences thereof was again that the applicant was a self actor. She pleaded ignorance of the requirements of Rule 31 of the Supreme Court Rules.

The factors a court has to consider in the determination of an application for condonation and extension of time in which to appeal have been stated in numerous decisions of this Court and the High Court.

In Maheya v Independent African Church SC58-07, it is stated…, that:

“In considering application 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:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) Avoidance of unnecessary delays in the administration of justice.”

See De Kuszab Dabrowski Uxor v Steel N.O. 1966 RLR 60 (A)…,; Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,; Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S).

The period of time marking the delay by the applicant in taking steps to note a valid appeal is nine months. The right to appeal is now dependent on the exercise of the court's discretion.

The application was made on 8 December 2008. The inordinate delay may be divided into three parts:

(i) The first part extended from 27 February to 26 August 2008.

(ii) The second extended from 27 August to 25 November.

(iii) The last part extended from 26 November to 7 December 2008.

The applicant gave different explanations for her inaction during each of the three periods of delay:

(i) In relation to the first period of delay, she said that she had no knowledge that the judgment had been given on 27 February.

(ii) In respect of her inaction in the second part of the period of delay, she said, as a self-actor, she was not aware of the requirements of Rule 30(a) of the Supreme Court Rules. She said she was also not aware of the provisions of Rule 31 of the Supreme Court Rules providing a remedy to a party who would have failed to exercise the right to appeal against a judgment of the High Court timeously.

(iii) She had no explanation for her inaction during the last part of the period of delay.

Is the explanation of the delay reasonable?

Apart from saying she did not know that the judgment had been delivered on 27 February 2008, the applicant did not say why steps were not taken by her, or her legal practitioners, which would have enabled her to acquire that knowledge.

The court a quo had reserved judgment at the end of hearing of evidence in the trial of the action.

The applicant and her legal practitioners were under the duty to make regular inquiries with the Registrar as to when the judgment would be given.

To provide a reasonable explanation for compliance with Rules of Court, it is generally necessary to say why the applicant or his legal representative failed to act in a manner a diligent litigant or his legal practitioner would reasonably have been expected to act.

In Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd SC31-08, the applicant company could not explain why its legal representative failed to take necessary steps to get knowledge of when the judgment it sought to appeal against had been given. At p4 of the cyclostyled judgment, it was stated that:

“It is clear that the applicant's legal practitioners were under a duty, having taken instructions to represent it in the application at the High Court, to make regular inquiries at the Registry, confirmed by letters, as to whether the judgment had been given, and, if not, when it was to be handed down.

A vigilant litigant interested in the speedy outcome of the application would have satisfied himself that the legal practitioners made regular inquiries for the judgment. Lack of knowledge of a judgment, due to the failure to make necessary inquiries in circumstances where one is under a duty to do so, cannot be an acceptable explanation for non-compliance with Rules of the Court. The applicant could not remain inactive until notification of the judgment was given by the Registrar.”

In this case, notification of the judgment, given on 27 February 2008, was given to the parties by the Registrar in a Court Roll of cases to be dealt with on that day. The applicant and her legal practitioner did not avail themselves of the official source of the information on the delivery of the judgment.

In my view, she cannot escape the consequences of failure to diligently pursue a judgment that befell the applicant in Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd SC31-08.

The applicant was the first respondent's tenant at Number 5 Albion House, 74 Harare. She was evicted from the premises without being given 48 hours notice as provided by Rule 4A(1) of Order 26 of the Magistrate's Court (Rules 1980).

She seeks an order of this court reinstating her into the premises pending the hearing of her application for the condonation of her late noting of an appeal against the decision of the magistrate on the strength of which the first respondent evicted her from the property.

The first respondent was the applicant's landlord for eleven (11) years. It sought and obtained an eviction order against the appellant. The order was enforced in the manner already explained above.

The second respondent is the Messenger of Court Harare. He is an officer of the Magistrate's Court entrusted with the responsibility of enforcing that court's orders.

The third respondent is the first respondent's new tenant with whom it entered into a lease agreement after this application had been issued and served on the first respondent. It has not yet taken occupation of the property in dispute.

The applicant was aware of the court's order for her eviction. She was then being represented by her erstwhile legal practitioners whom she instructed to appeal against the magistrate's decision. She, in her founding affidavit, said she was surprised when the Messenger of Court gave her notice and forthwith evicted her. She, on inquiring with her erstwhile legal practitioners, was advised that they had not filed the appeal as instructed as she had not paid them. 

She has since retrieved her file from them and instructed her current legal practitioners to note the appeal and file an application for condonation of the late noting of the appeal concurrently with this application.

This is an opposed application for rescission of an order of divorce granted by this court on 19 May 2011 in case No. HC3037/10.

The order sought by the applicant is couched in the following terms;

“IT IS ORDERED

1. That the judgment that was issued in default of filing of a plea by the applicant in case Number 3037/10 on 17 May 2011 (sic) be and is hereby rescinded.

2. That the applicant will file her plea within 48 hours of this order being issued.

3. That there will be no order of costs if this application is not opposed.”

The background facts giving rise to this application can be summarised as follows;

The applicant was married to the respondent in terms of the Marriage Act [Chapter 5:11]; which marriage was solemnised on 8 December 1989. There are now only two minor children born out of that marriage, namely, Blessing Tawanda Zulu born on 26 January 1996 and Ezra Munyaradzi Zulu born on 9 June 2000.

The applicant has been ordinarily resident in the United Kingdom for some time where she is said to be working as a nurse at the same time seeking to regularise her resident status. The applicant is in custody of the two minor children in the United Kingdom and the Magistrates Court in Zimbabwe granted a contributory maintenance order against the respondent in respect of the minor children in case No. M333/11. The respondent is resident in Zimbabwe.

On 7 May 2010, the respondent issued summons out of this court seeking a decree of divorce, an order governing division of matrimonial assets, an order governing custody of the minor children and cost of suit if the matter is defended.

The applicant was served personally with the respondent's declaration at the Magistrates Court (Civil) Harare on 18 February 2011 where she was attending a court hearing - presumably the maintenance case.

On 25 February 2011 the applicant filed an appearance to defend and gave her address of service as that of her legal practitioners who had assumed agency, Mujeyi Manokore Attorneys.

On 23 March 2011, the respondent filed a notice to plead and intention to bar which was served upon the applicant's legal practitioners on the same day.

The applicant did not file the plea and the dias induciae expired which meant that the applicant was barred in terms of the Rules of the court and an endorsement to that effect was made by the Registrar on 11 April 2011.

The respondent proceeded to set the matter down on the unopposed roll and a notice of set down was served on the applicant's legal practitioners on 4 May 2011 and the set down date was on 12 May 2011. The applicant did not attend court, and, on 19 May 2011, my brother judge CHITAKUNYE J granted the following order;

“It is ordered that;

1. Divorce Order:- That a decree of divorce be and is hereby granted.

2. Maintenance:- The plaintiff will pay maintenance as per the Magistrates Court order granted at Harare in case No. M333/11.

3. Custody:- Custody of two minor children, namely, Blessing Tawanda Zulu born on 23 January 1996 and Ezra Munyaradzi Zulu born on 9 June 2000 be and is hereby granted to the defendant. The plaintiff shall enjoy reasonable access.

4. Property:-

4.1 Movable:- It be governed and distributed as per Annexure “B” to this order.

4.2 Immovable: It be governed and distributed as per Annexure B attached to this order.

5. That the defendant pays the costs of suit.”

On 13 June, the applicant filed this court application seeking the rescission of the order granted in default by CHITAKUNYE J....,.

In terms of Order 9 Rule 63 of the High Court Rules, 1971 (hereinafter the Rules) this court may set aside judgment given in default. The relevant provision, Rule 63(2), is couched as follows;

“63 Court may set aside judgment given in default

1….,.

2. If the court is satisfied, on application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”…,.

In terms of the rules, therefore, the applicant has to prove, on a balance of probability, that there is good and sufficient cause to rescind the Divorce Order granted in default....,.

It is now trite law that the court, in setting aside or rescinding a default judgment, considers the following factors;

(i) The explanation for the default. In this regard, the court considers the reasonableness and the acceptability of the explanation given.

(ii) The bona fides of the applicant or application.

(iii) The bona fides of the applicant's defence on the merits as well as prospects of success or the prima facie strength of the applicant's case.

See; Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (S); Beitbridge Rural District Council v Russel Construction Co (Pvt) Ltd 1998 (2) ZLR 190 (S)…,.

I now proceed to apply these principles to the facts of this case.

1. Applicant's explanation for the default

It is common cause that the applicant was served with the notice to plead and intention to bar in terms of Order 35 Rule 272(1)(b) of the Rules and that after the dies induciae the respondent proceeded to seek a final order in terms of Order 35 Rule 272(2)(b) of the Rules. It is common cause that the applicant, even after being served with the notice of set down in terms of Rule 272(2)(b), did not attend court. The probability is that even if the applicant had attended court on the date of set down the applicant could still not be heard on the merits without seeking the upliftment of the bar in terms of the Rules.

I have to consider whether there is a reasonable and acceptable explanation given by the applicant for failure to comply with Order 35 Rule 272(1)(b), and, to some extent, Rule 272(2)(b) of the Rules.

I am not persuaded by counsel for the applicant's belated submission that I should grant the order sought on the basis of Order 49 Rule 449 which relates to correction, variation and rescission of judgments and orders. The order granted by CHITAKUNYE J, on 19 May 2011, was not issued in error but in terms of Order 35 Rule 272(2)(b).

The explanation given for the default by the applicant is not clear in her founding affidavit. In fact, in her founding affidavit, the applicant did not see it fit and proper to give any reason as to why the order granted by CHITAKUNYE J should be rescinded. The applicant had only this to say:

“The exact details of the order I seek will be expressed in the affidavit that has been deposed to by my attorney, Bruce Mujeyi. I incorporate the contents of his affidavit as is specifically traversed herein.”

The applicant, in her wisdom, decided to shy away from proffering any explanation to her default in her founding affidavit which is crucial to her case. In other words, the applicant gave no explanation as to what she did about this case after she instructed her attorneys to enter an appearance to defend on 25 February 2011 until four months later, on 13 June 2011, when she filed an application for rescission of the order granted in default. It is not clear whether she was, during that period, in Zimbabwe or not. She does not explain again if she communicated with her attorneys, and, if so, how she did that. The applicant does not explain if indeed she gave her attorneys any instructions to file a plea to the plaintiff's claim. All these questions are not answered in Mr Mujeyi's supporting affidavit which the applicant seeks to rely upon. It is therefore clear to my mind that the applicant had not, in her founding affidavit, given any explanation for the default save to leave matters in the hands of her erstwhile legal practitioners.

It may be worthy to consider what explanation is given by the applicant's erstwhile legal practitioners Bruce Mujeyi (hereafter Mujeyi). It is pertinent to note that after deposing to the supporting affidavit on 10 June 2011 and filing this application on 13 June 2011, Bruce Mujeyi renounced agency barely two days later, on 15 June 2011.

The thrust of Bruce Mujeyi's supporting affidavit is to try and explain the failure by the applicant, in particular Mujeyi himself, to file a plea after being served with the notice to plead and intention to bar in terms of Order 35 Rule 272(1)(b). Mujeyi's explanation is that after he entered an appearance to defend, on 25 February 2011, he left the country. He does not explain as to when he left the country or where he went or for how long he was out of the country. There is no explanation as to what instructions he left in relation to the applicant's file at his law firm and with whom.

Was it prudent for Bruce Mujeyi to simply enter an appearance to defend and leave the country for an unspecified period without ensuring that other legal practitioners in his firm would attend to his matters in his absence?

That conduct, in my view, is not only unreasonable but unacceptable.

It is not clear as to whether Bruce Mujeyi had been given instructions or taken instructions to file the applicant's plea. All he says is that the notice to plead and intention to bar was served when he was out of the country. Again, it is worthwhile to quote his own words:

“The notice to plead and intention to bar was dealt with in a matter (sic) that decries sheer incompetence by a member of my staff. The document was simply filed away in the file instead of being referred to one of the several legal practitioners in my firm who were there during the time I was away. The matter was subsequently heard as an unopposed matter and judgment was granted on 17 May 2011.”…,.

As already said, there is no explanation as to when Bruce Mujeyi left the country and for how long he was away. In fact, the respondent challenged this averment and said that on the day he served the notice to plead and intention to bar on Bruce Mujeyi's legal firm, Mujeyi was present at the firm. In fact, the respondent said soon after effecting service of this notice to plead he was called by Bruce Mujeyi who was in his office, and, as persons known to each other, they had a discussion on social issues unrelated to the matter.

I am constrained to find that the respondent would lie on this aspect and fabricate such evidence.

In any case, this has not been refuted by Bruce Mujeyi who has not offered any proof to show that he was indeed out of the country, for example, through his passport. He said he only became aware of the default judgment when an unnamed legal practitioner in his firm sent him an e-mail indicating that the applicant was being evicted from the matrimonial house on account of the default judgment.

It is again unclear if by then the applicant was in Zimbabwe. No proof of such an e-mail is provided. It is also important to note that there is no supporting affidavit from the receptionist in Mujeyi's legal firm who received the notice to plead and the notice for set down to confirm the averments by Mujeyi on what happened when Mujeyi was ostensibly out of the country. No explanation for that omission is made. The receptionist would indeed confirm why she would act in the manner alleged and indeed take the blame if it is true that it is what she did.

The explanation given by Mujeyi is that the applicant was not at fault for the default as she was not alerted to the fact that the respondent had filed a notice to plead and intention to bar, and, subsequently a notice of set down. He further avers that the level of delinquency exhibited by his law firm in the matter is deplorable, which blame he shifts to the receptionist, and that this should not be held against the applicant who is not to blame for this fiasco.

I am not persuaded by this argument not only because it had not been shown that what Mujeyi says is indeed correct but also on account of the fact that our courts have long pronounced, loudly and clearly, to all and sundry that where legal practitioners fail to take appropriate action to protect their clients' interest such conduct besides being treated as wilful non-compliance with the rules would be treated as wilful disdain by the clients themselves.

It is not good enough for the applicant to shift the blame to Mujeyi's law firm and for Mujeyi to run away from the blame by shifting blame to an unnamed secretary in the law firm and by renouncing agency in this matter. Mujeyi was the legal representative of the applicant whom the applicant chose herself. I therefore find no reason why, in relation to failure to comply with Rule 271(1)(b) of the Rules, by not entering a plea, the applicant should be absolved from the normal consequences of such a relationship and choice, no matter what the circumstances of the failure are.

The wise words by McNALLY JA in the case of Ndebele v Ncube 1992 (1) ZLR 288 (S)…, apply with equal force in this case;

“The time has come to remind the legal profession of the old adage, vingilantibus non dormientbus jura subvenient - roughly translated, the law will help the vigilant but not the sluggard.”

It is therefore my finding that the applicant has dismally failed to proffer a reasonable and acceptable explanation for her default to enter a plea.

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.

As interim relief, the second respondent was ordered not to sell or dispose of any of the property on the schedule. The second respondent was also restrained from releasing any of the property to anyone other than the applicant.

On 14 January 2010, the matter was set down before me for the confirmation or discharge of the provisional order, the first respondent having filed a notice of opposition and opposing affidavit in the matter.

When the matter was called up, it emerged that the first respondent had filed its heads of argument out of time and were barred. Counsel for the first respondent applied for condonation which I declined on the turn and indicated that my reasons would follow. I now set them out.

The applicant filed his heads in the matter on 8 September 2009. These were served upon the first respondent's legal practitioners on 11 September 2009. In terms of the Rules, the first respondent had ten days within which to file and serve its own heads in the matter.

The first respondent did not file its heads until 8 January 2010, presumably in response to the notice setting the matter down which was served on the parties in December 2009.

To explain the delay in the filing of the heads, counsel for the first respondent filed an application and supplemented his written submissions by oral argument. In the main, he submitted that he was failing to get instructions from the first respondent and had formed the impression that the first respondent had lost interest in the matter.

The factors generally taken into account by the court, when considering an application for condonation, are well established. Importantly, but not exclusively, the court takes into account such factors as;

(i) The length of the delay;

(ii) The explanation for the delay;

(iii) The merits of the application; and

(iv) Any prejudice to the interests of justice generally.

The delay in filing heads of argument in this matter was, in my view, inordinate. The first respondent had to file his heads, at the latest, on 25 September 2009. Instead, its heads were only filed in January 2010, a few days before the set down date. The first respondent had delayed by a period in excess of three months.

Further, I was not impressed by the reasons proffered for the delay.

Where litigants, being aware that they have a matter before the courts, are dis-inclined to proceed with the prosecution or defense of the matter, they should not expect the courts to aid them in their apathetic attitude towards litigation.

It further appeared to me, that, the first respondent was not bona fide in filing the application for condonation.

Having failed to communicate with its legal practitioners for more than three months, it could not expect the court to grant it the indulgence sought for the mere asking without explaining why it had broken down its communications with its legal practitioners.

It is trite, in my view, that, the explanation for the delay sought is that of the party to the litigation and not necessarily of its legal practitioner unless the delay is largely imputable to the legal practitioner in which event a supporting affidavit from the legal practitioner has to be filed.

This application is redolent with irregularities. This, understandably, constrained the respondent to raise a number of points in limine praying for its dismissal. The irregularities complained of, which were not fully conceded by the applicant, are these -

1. The application does not comply with Rule 227(3) in that when it was filed it did not contain a draft of the order sought;

2. It offends against Rule 227(2)(d) in that it has more than 5 pages but does not have an index attached;

3. It is unclear whether the application is being brought in terms of Order 32 (ordinary Court application) or in terms of Order 33 (an application for review). Applicant has prefaced its founding papers with a document titled “Court Application” and another titled “Application for Review” both prepared by the applicant's legal practitioners on 4 May 2010 and filed on 17 May 2010.

4. If it be taken as an application for review, it is fraught with deficiencies in that it fails to comply with Rule 256, Rule 257, and Rule 259 by not citing the arbitrator whose award is sought to be reviewed, by not stating shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected, and by not having been filed within the stipulated eight (8) week period….,.

On the basis of the foregoing alleged irregularities, the respondent moved the court to dismiss the application with costs on a higher scale.

The applicant's legal practitioner, while making half-hearted concessions in respect of the above cited irregularities through skilful manipulation that is not taught in Law School, but acquired naturally thereafter, endeavoured to persuade the Court to invoke Rule 4C(a) and condone the departure from the provisions of the Rules flouted....,.

In the result, on the totality of the numerous fundamental irregularities alluded to.., I am satisfied that the application was improperly brought and is ill-conceived....,. It also behoves me to remark that I hope that counsel for the applicant will not charge his client any fees regarding this aborted application.

In Chambers, in terms of Rule 39 of the Supreme Court Rules.

The applicant, who was the Parliamentary candidate for the Zimbabwe African National Union–Patriotic Front ('ZANU-PF') in the Parliamentary elections held in June 2000, was duly returned as Member of Parliament for Gokwe South. On 26 July 2000, the respondent filed a petition in terms of section 132 of the Electoral Act [Chapter 2:01] ('the Act') complaining of an undue election.

On 15 January 2000, the High Court delivered its judgment upholding the petition (HH04-03). An appeal was duly noted on behalf of the applicant on 31 January 2003.

On 19 May 2004, the Registrar of this Court wrote to the applicant's legal practitioners advising them that the record of proceedings were received by the Supreme Court on 19 May 2004 and calling on them to file Heads of Argument within 15 business days from the date of service of the letter. The letter was served on the applicant's legal practitioners on 20 May 2004.

There was no compliance with this request.

On 14 October 2004, the Registrar of this Court, again, wrote to the appellant's legal practitioners; this time advising them that the appeal was deemed to have been dismissed since no Heads of Argument were received within the prescribed period (stated in her letter of 19 May 2004). It was advised that the records were being returned to the court of origin to enable execution by the respondent of the judgment appealed against.

Only then did the appellant's legal practitioners respond.

They received the letter on 22 October 2004 and filed this application on 28 October 2004. Notwithstanding the requirement of Rule 39 of the Rules of this Court that applications should be by way of court application, the application filed was a chamber application. The founding affidavit was sworn by the legal practitioner who had been handling the appeal. Despite this fact, it took the legal practitioner six days to file the application.

The explanation tendered by counsel for the applicant is that despite many requests for the record from the Registrar of the High Court, a copy was not availed to the applicant's legal practitioners. This explanation is wholly unsubstantiated.

There was, attached to the papers, no letter written to the Registrar of the High Court; no file note showing that visits were made to the Registrar's Office in search of the record; no note of telephone conversations with the Registrar requesting the record; no letter to the Registrar of this Court indicating that there was a difficulty in obtaining the record.

The deponent to the founding affidavit states that he was aware that the respondent's legal practitioners were in possession of their copy of the record and he was content to wait to peruse the respondent's copy after the respondent's Heads of Argument had been drawn by an advocate briefed for that purpose.

In paragraph 6 of the founding affidavit, the legal practitioner states:

“6. Accordingly, we failed to do our Heads of Argument in time, a position which we relayed to our learned friend Mr Lewis Uriri of Honey & Blanckenberg legal practitioners, for the respondent, who promised to supply us with his copies of the record as soon as Advocate Zhou who (sic) they had briefed was through with them.

7. We have not yet received any copy of the records from the High Court Registrar nor from our learned friend, Mr Uriri, and the only communication we have had was from the Registrar of this Honourable Court advising us that the applicant's appeal was regarded as abandoned.”

In paragraph 8, he avers that his failure to file Heads of Argument was “neither out of deliberate failure nor was it due to tardiness on our part but due to administrative deficiencies at the High Court. We therefore aver that this cannot be visited on our client.”

A more fitting example of tardiness and negligence can hardly be found.

The legal practitioner was advised by the Registrar that the records had been received at the Supreme Court. If he encountered difficulty in obtaining the record from the High Court, why did he not peruse or obtain a copy of the record held at the Supreme Court for the purpose of drawing Heads of Argument? There was, in addition, no evidence by the applicant to the effect that he made efforts to ensure the timeous prosecution of his appeal.

As counsel for the respondent submitted, he was able to obtain the respondent's copy of the record from the Registrar of the High Court with no difficulty. This, together with the fact that the applicant has attached no documentary proof of his efforts to obtain the record, suggests to me that the legal practitioner made no effort to obtain the record.

It seems that the applicant's legal practitioner was content to do nothing – and nothing he did.

Counsel for the applicant concedes that the legal practitioner was remiss but asks that the client not be visited “with the sins of his legal practitioner.”

How many times has this plea been heard in the many applications before this Court whether for condonation and extension of time within which to appeal, or for reinstatement of appeals!

Times innumerable.

Yet the flood of applications continue unabated and the same excuses are tendered over and over.

The time has come for sterner measures to be taken of applications of this nature where negligence, tardiness, and disdain for the Rules of Court is exhibited by legal practitioners. The often quoted passage from the judgment of STEYN CJ in Saloojee & Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A)…, bears repeating here, namely, that:

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship - no matter what the circumstances of the failure are.”

And at F-H:

“A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf. Regal v African Superslate (Pty) Ltd, supra at p 23 i.f.) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success.”

The applicant himself is not without blame.

There is nothing in the papers to satisfy me that the applicant made efforts to ensure the timeous prosecution of his appeal.

The notion that condonation of a breach of the Rules is there for the asking ought to be dispelled. And, there must be finality to litigation. It is an injustice to a party who has been waiting to execute his judgment to be forced to suffer the effects of the disregard by the other party's legal practitioners of the Rules of Court, namely, the delaying of the execution of his judgment.

The factors usually weighed by the court in considering applications of this nature are;

(i) The degree of non-compliance;

(ii) The explanation for it;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The respondent's interest in the finality of his judgment;

(vi) The convenience of the court; and

(vii) The avoidance of unnecessary delay in the administration of justice.

See HERBSTEIN & VAN WINSEN, The Civil Practice of the Supreme Court of South Africa 4^th ed…,.

It was submitted, on behalf of the applicant, that there are good prospects of success on appeal in that the finding of the learned Judge that the perpetrators of the act of violence proved to have been committed against the respondent were agents of the applicant, was wrong.

I will address this submission below but suffice it to say at this stage that even where there are prospects of success, that factor is not necessarily decisive. See Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)…, where SANDURA JA remarked:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused - whatever the merits of the appeal may be. This was made clear by MULLER JA in PE Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799 D-E, where the learned JUDGE OF APPEAL said:

'In a case such as the present, where there has been a flagrant breach of the Rules of this Court in more than one respect, and where, in addition, there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.'”

See also Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A)…,.:

“The notice of appeal, however, states no reasons for concluding that the appeal is likely to succeed. It does no more than to recite that the trial Court erred in making the findings on which its judgment is based; and to list those findings which, so it is suggested, the learned Judge should have made.

In applications of this sort, the prospects of success are, in general, an important, although not decisive, consideration. It has been pointed out (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA 773 (A) at 789C) that the Court is bound to make an assessment of the petitioner's prospects of success as one of the factors relevant to the exercise of the Court's discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. It seems to me that in the instant case the cumulative effect of the factors which I have summarised in paras (1)-(5) above is by itself sufficient to render the application unworthy of consideration; and that this is a case in which the Court should refuse the application irrespective of the prospects of success. (Cf Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 687 A; PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D-E.).”

The applicant engaged counsel and must have instructed him on the nature of the application to place before the court.

The degree of non-compliance and the explanation proffered for the non-compliance

In considering an application for reinstatement, MALABA JA…, held that:-

“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:

(i) The degree of non-compliance;

(ii) The explanation therefore;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) The avoidance of unnecessary delays in the administration of justice.”

In casu, the Registrar of the Labour Court wrote a letter to the applicant requesting payment of costs for the preparation of the record on 13 April 2016. The payment was to be made within five (5) days, that is, on or before 20 April 2016. This was in terms of Rule 34(1) of the Rules of this Court. The applicant's legal practitioner…, alleges that he attempted to make payment on 27 April 2016, which was seven (7) days after the expiry of the time limit, but was informed that the matter had been referred to the Registrar of the Supreme Court and that he must await communication from that office.

The length of the delay is, in my view, therefore, not inordinate.

The main reason given by the applicant for not paying the costs within the requested time was that its legal practitioner…, was of the view that Rule 34(1) of the Supreme Court Rules was not applicable to appeals from the Labour Court. He accordingly engaged the Registrar of this Court, expressing this view….,. The Registrar interpreted the same Rule differently and insisted on the payment of the costs in question. The process eventually ended with counsel for the applicant resolving to comply with the Registrar's request, but the appeal had already been deemed to have lapsed.

I take the view that counsel for the applicant was misguided in his decision not to comply with the directions of the Registrar on the mere ground that he did not agree with the latter's interpretation of the relevant court rules and their applicability to the matter. Such action was akin to taking the law into his own hands; conduct that is improper and deplored under the law. It would have been prudent for him to comply with the Registrar's request, and, thereafter, should he have felt the need to have the matter definitively determined, apply to the court for a review of the Registrar's decision. The failure to comply with the Rules in this case was therefore wilful, albeit, on the part of the applicant's legal practitioner.

It hardly needs mention that Rules of Court must be followed in order to ensure proper and good administration of justice.

In Sibanda v The State, the court quoted the case of S v McNab 1986 (2) ZLR 280 (S)…, where DUMBUTSHENA CJ noted the following:-

“I have dealt at length on this point because it is my opinion that laxity on the part of the court in dealing with non-observance of the Rules will encourage some legal practitioners to disregard the Rules of Court to the detriment of the good administration of justice.”

I found it quite tempting to follow the principle in S v McNab 1986 (2) ZLR 280 (S) and would have done so but for the fact that I do not believe it would be fair on the applicant to visit this particular 'sin' of its legal practitioner on it. The matter concerned the interpretation of Rules of the Court, an issue naturally falling outside the applicant's sphere of knowledge or influence. Secondly, while counsel for the applicant's conduct is deserving of censure, I do not find that it scales such levels of seriousness, blatancy or unreasonableness as would merit a dismissal of the application. In addition, and, as indicated below, I find that the applicant has some prospects of success on appeal.

In the judicious exercise of my discretion in this matter, I therefore find it to be in the interests of justice to condone this particular non-compliance with the Rules of this Court….,.

Having already found that both the period of and explanation for the delay in complying with the Rule in question were not unreasonable, I am satisfied that the application ought to succeed.

However, given the circumstances of this case, I find it would not be in the interests of justice to saddle the respondent with an order of costs. Instead, the costs ought to be borne by the applicant.

It is in the premises ordered as follows:-

1. The application is granted.

2. The appeal filed under case no. SC447/15 be and is hereby re-instated on the roll.

I move on to determine the merits of the application, in particular, whether cause has been shown by the applicants for the grant of relief in terms of Rule 34(5)…,.

Counsel for the applicants addressed me on the question of the reason for the delay and the prospects of success on appeal. She submitted that this was a proper case for condonation to be granted and for the applicants to be allowed to argue their case on appeal. The applicants, she argued, should not be visited with the consequences of the negligence of their legal practitioners. 

She argued that there were at least arguable prospects of success on appeal in that the court a quo had found there was no agreement of loan between the first applicant and the respondent and that therefore the suretyship agreements signed by the second to fourth applicants could not stand.  In any event, the amount owing was disputed by the applicants and the court a quo had erred in failing to deal with the argument proffered by the applicants on that issue.

The difficulty with counsel for the applicant's submissions regarding the grant of condonation is that condonation was not sought by the applicants. Neither in the founding affidavit nor in the draft order filed is any indication given that condonation is being sought.

In an application of this nature, and indeed in any application which is necessitated by a breach of the Rules, It is imperative that condonation of failure to comply with the Rule in question be applied for because in each case the applicant is seeking an indulgence from the court.

The impression conveyed in the affidavits filed on behalf of the applicants is that the applicants are entitled to the order sought. No regret is expressed for the infringement of the Rule. The tone of the founding affidavit is that no fault was to be attributed to the applicants or their legal practitioners and that all blame lay at the door of the Registrar who was accused of serving the letter advising of the costs to be paid at the wrong address having failed to ascertain the correct address of the legal practitioners who had relocated.

The fourth applicant is represented by a different firm of legal practitioners. He supported the averments in the founding affidavit. However, he does not deny receiving the letter. His explanation for the failure to comply with Rule 34(1) is that he 'does not remember' being served with a letter from the Registrar requesting costs. Like his co-applicants, he has given no explanation for the delay in filing an application for relief in terms of Rule 34(5). The record shows the 'letter of lapse' (dated 6 July 2016) was received by the first to third applicants. The fourth applicant did not deny receipt of that letter.

In my view, the applicants' conduct in this matter exhibits disdain for the Rules.

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 dis-service as he takes the risk of having his application dismissed.

This is not a proper case, in my view, for exemption of the applicants from the total disregard for the Rules exhibited by their legal practitioners. See Friendship v Cargo Carriers Ltd & Anor 2013 (1) ZLR 1 (S).

The applicants have aligned themselves with their legal practitioners in this regard. They have not shown that they were desirous of prosecuting the appeal or that the appeal has been noted in good faith and carries prospects of success. While they dispute the actual amount ordered by the judgment to be paid to the respondents, they have not made payment of the amounts that they acknowledge to be owing. That fact, together with their failure to make payment of the costs, or estimated costs, of preparation of the record and the prayer in the draft order requiring the Registrar, again, to assess the costs and serve the assessment on their legal practitioners, indicates clearly, in my view, the lack of seriousness with which they view the appeal noted. Why should the Registrar re-assess the costs which have already been advised to them? It appears to me that any right thinking legal practitioner would hastily approach the High Court and make payment in the interests of progress. It is evident that the applicants are employing delaying tactics.

On the question of reinstatement, the explanation given by the applicants is that the notification by the Registrar of the quantum of costs to be paid by them was served at their previous address and did not reach them. The fourth applicant was content to take solace in some form of loss of memory. They all placed the blame on the Registrar for failing to serve the letter requesting payment of the costs at the correct address of the first to third applicants.

The explanation given is totally unsatisfactory.

It offers no valid excuse for their non-compliance with the requirements of Rule 34. The applicants were granted the indulgence of a deferment of compliance with the mandatory requirements of Rule 34(1). An applicant, desirous of pursuing its appeal would, at the very least, have made enquiries with the Registrar from time to time as to the amount required to be paid. By 26 May 2016, when the Registrar wrote to the applicants' legal practitioners, no enquiries had been made by the applicants. That was well after a total of seven months had elapsed from the date of noting of the appeal. It seems to me that one would be justified in concluding, in these circumstances, that the applicants had abandoned any intention of prosecuting their appeal.

Since the onus lay on the applicants to ensure that the Registrar was notified of their change of address, the blame placed on the Registrar by the applicants is misplaced. They have only themselves to blame.  In my view, no cause has been shown by the applicants to justify the grant of relief in terms of Rule 34(5).

It is trite that where the legal practitioner is the one who is at fault, he must file an affidavit admitting his errors. The principle was laid out in the case of Diocese of Harare v The Church of the Province for Central Africa SC09-10, where this Court held that:

“Although in argument Mr Zhou suggested that the failure to comply with the relevant Rules of Court was wholly attributable to the respondent's legal practitioners, there was no admission of negligence by the legal practitioner…,.

A litigant may, at times, not escape the consequences of their legal practitioner's tardiness.

In Ndlovu v Guardforce Investments (Pvt) Ltd & Others 2014 (1) ZLR 25 (H)…, the court held that:-

“Legal practitioners must always be aware that they operate within time limits and in terms of laid down procedures. In applications for rescission of judgement, consequent upon a failure to act timeously, it is the duty of the legal practitioner to give a credible and convincing explanation as to why he failed to act within the time limits. The time has come for legal practitioners to adhere to the time limits set in the Rules. The approach ought to be that the court may only excuse failure to act where the explanation given is credible. A litigant who chooses a legal practitioner to act on his behalf expects the legal practitioner to adhere to time limits set in the Rules. The court should decline to exercise its judicial discretion in favour of applicants where the explanation is not credible even where the fault of the legal practitioner will have adverse consequences upon the litigant.”

In Hughber Petroleum (Pvt) Ltd & Another v Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H)…, MATHONSI J was quite emphatic on the need to put legal practitioners on their guard when he said that:

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice but also to protect their integrity against the machinations of the bad elements in the profession. Legal Practitioners who take the court for granted in this manner run the risk of having costs granted against them de bonis propiis in order to discourage egregious departures from proper standards of professional behaviour.”

The above sentiments may seem harsh on the legal practitioners but a cursory look at a plethora of cases makes sad reading for the legal profession. Time and again this court has called upon legal practitioners to put their act together and avoid a cavalier approach to their work. Indeed as far back as 1988 in Kombayi v Berkhout 1988 (1) ZLR 53 (S) the court  gave such a warning and cited with approval the observation by STEYN CJ in Saloojee & Another NNO v Minister of Community Development 1952 (2) SA 135 (A)…, that:-

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of court. Considerations ad misericordium should not be allowed to become an invitation to laxity.”

In casu, it is apparent that the predicament the applicant finds himself in emanated from the legal practitioners of his choice in failing to include a reference on the appearance to defend. That law firm again failed to act diligently when served with the Notice to Plead and Intention to Bar. As if that was not enough that law firm wishes to blame the respondent's legal practitioner for not providing a reference to enable it to know the legal practitioner handling the matter. In short the law firm wishes to profit from its own ineptitude.