In chambers in terms of Rule 5 of
the Rules of the Supreme Court, 1964.
This is an application for
condonation of the late noting of an appeal and an extension of time within
which to note an appeal.
The judgment sought to be appealed
against was delivered by the High Court on 5 October 2005. The application
was first filed on 17 November 2010, but, being non-compliant with the Rules of
this Court, was the subject of much correspondence between the Registrar of
this Court and the applicant's legal practitioners, with the result that it was
only finally set down for hearing on the 26 November 2013.
The applicant averred, in her
founding affidavit, which is dated 13 November 2010, as follows:
“On 18 November 2005, the applicant,
then a self-actor, filed a notice of appeal in the Supreme Court. Nothing
was apparently done to prosecute the appeal and nearly three years later, on 12
June 2008, the Registrar of the Supreme Court wrote to the appellant advising
the appeal was deemed to have lapsed in terms of Rule 34(5) of the Rules of the
Supreme Court.”
The communication from the Registrar
therein referred to was followed by a letter, dated 17 June 2008, to Katsande
& Partners, then the applicant's legal practitioners, from the respondent's
legal practitioners, requesting compliance by the applicant with the High Court
judgment within fourteen days from 12 June 2008 in view of the lapse of the
appeal.
There followed a long silence of two
years and three months. Then, on 16 September 2010, the matter assumed new
life. A letter was written to the Registrar of the High Court by Katsande
& Partners. The Registrar was accused of failing to respond to a
letter by the applicant requesting a transcript of the record for the purposes
of applying to the Supreme Court for an extension of time within which to
appeal. The letter read:
“The Registrar
High Court of Zimbabwe
Harare
16 September 2010
Florence Chimunda v Arnold Zimuto
5261/05
1. The above matter, for which we
now act for Mrs Chimunda, and, in particular, your letter of 12 June 2008,
refers.
2. On 9 February 2007, Mrs Chimunda,
then a self-actor, wrote to the office of the Registrar requesting a
transcript of the record of the proceedings as she intended to apply to the
Supreme Court for leave to appeal out of time. The copy of the letter is
attached.
3. Instead of responding to the
request, you wrote to her the letter of 12 June 2008 informing her of
what she knew already; that her appeal had lapsed.
4. To date, your office has still
not supplied the transcript.
5. We write requesting that as a
matter of urgency you supply us with a copy of the transcript to enable us
to apply to the Supreme Court for leave to appeal out of time.
6. We undertake to meet the costs of
the preparation of the transcript.”…,.
Attached to the letter was a copy of
the letter allegedly written by the applicant. It was dated 9 Feb
2007. It read:
“281 Carrigh Greagh Road
Helnvale, Borowdale (sic)
Harare
To: High Court of Zimbabwe
RE: REQUEST FOR THE TRANSCRIPT OF
COURT PROCEEDINGS CASE NO 8530/02
I am requesting for a transcript of
Court proceedings for case No 8530/02 to be copied to Mr F. M Katsande and
Partners.
Yours faithfully
________________
F.Chimunda
Copies to be collected.”
One immediately notes the
differences in case numbers cited in the two letters and wonders how the
Registrar of the High Court could be faulted for not locating the record and
providing the transcript; quite apart from the fact that the letter of 9
February 2007 makes no undertaking to pay the costs of the transcript and does
not, on the face of it, bear any stamp or other indication of its having been
received by the Registrar.
In addition, the letter of 16
September 2010 makes no reference to the case under discussion which, ex facie the judgment, appears to
bear the number HC8530/02.
The applicant denied having received
the communication from the Registrar advising of the lapse of the appeal. She
averred that she had constantly visited the appeals office of the High Court
but was told that the appeal was being processed and that she would be advised
in due course of the hearing date. In 2007, she had written to the Registrar of
the High Court requesting that a transcript of the record of proceedings be
prepared in order for her to prepare for the hearing of the
appeal. However, the process of obtaining the transcript and setting the
matter down for hearing appeared to be lengthy and drawn out so she
instructed her legal practitioners to attempt dialogue with the respondents'
legal practitioners on a 'without prejudice basis'. It was during this
dialogue that she learnt, through the letter of the 17 June 2008, which the
respondents' legal practitioners wrote to hers, that her appeal had lapsed.
(This is contradicted by the underlined portion of the legal practitioners'
letter of 16 September 2010).
Thereafter, her daughter was
diagnosed with cancer and she spent the rest of 2008 and the whole of 2009
commuting between South Africa and Zimbabwe attending to her daughter who was
receiving medical treatment. When her daughter's condition improved, (the
date is not given) she consulted her legal practitioners on the way
forward. This resulted in her legal practitioners writing the letter of 16
September 2010. The Registrar's response was that nothing could be done
before the lapse of the appeal was addressed.
She claimed that it was at that
stage that a close perusal of the documents made available to her lawyers
revealed that the Agreement of Sale was null and void by virtue of its having
been concluded in violation of section 39 of the Regional Town and Country
Planning Act [Chapter 9:12]. Accordingly, she had good prospects of
success on appeal as she intended at the appeal to raise this new point of law
on appeal.
The approach of the Courts when
dealing with applications of this nature is to consider the cumulative effect
of the following:
“The extent of the delay;
The reasonableness of the
explanation tendered therefor;
The prospects of success on appeal;
The prejudice, if any, that is
likely to be caused to the respondent should the application be granted; and
The need to bring finality to the
proceedings.”
There is no doubt that the delay in
this matter is inordinate.
The Rules require a notice of appeal
to be filed within fifteen days of the delivery of the judgment appealed
against. The applicant, on her own admission, filed a defective notice of
appeal and did nothing further to prosecute it. It is now almost nine
years since the matter was determined in the High Court.
The applicant was advised, on 12
June 2008, that the appeal had lapsed.
The letter was addressed to the same
address given by the applicant as her residential address in the letter of 9
February 2007. Yet, the applicant claims not to have received it. At
any rate, the applicant knew, by 17 June 2008, that the appeal had lapsed but
did nothing about it. According to her affidavit, it would appear that she was
represented by her present legal practitioners as far back as 2007 when she
instructed them to 'attempt dialogue with the respondents' legal practitioners
on a without prejudice basis.'
The explanation advanced by the applicant
for her inaction from 17 June 2008 is far from satisfactory and lacks the ring
of truth. It would have been an easy matter to attach copies of her passport
showing that she did travel between Zimbabwe and South Africa during the
relevant period; and, indeed, it became imperative to do so in the light of the
challenge raised by the respondents, in their opposing affidavit, that no
evidence was produced by the applicant in support of her averments in that
regard. In any event, since she was travelling to and from Zimbabwe, no reason
has been advanced as to why her legal practitioners could not have made the
application earlier.
I find the applicant's explanation
to be false and totally unsatisfactory.
Having regard to the considerable
passage of time since the delivery of the judgment, the prejudice to the
respondents would, as they have submitted, be great. Not only that, but it
is in the interests of justice that court proceedings be brought to finality.
Lest the applicant be inclined to
rely on the prospects of success, I would adopt the approach of this Court in Kodzwa v Secretary for Health & Anor 1999
(1) ZLR 313…,.. At p 316 of the judgment, SANDURA JA said:
“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 P E Bosman Transport Works Committee &
Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D-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.'
The same point was made by HOEXTER
JA in Rennie v Kamby Farms (Pty) Ltd
1989 (2) SA 124 (A) at 131G-J where the learned Judge of Appeal said:
'In
applications of this sort, the prospects of success are, in general, an
important, although not decisive, consideration. It has been pointed out in
Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & Ors 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…, 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.'
More recently, in our own
jurisdiction, my brother McNALLY said the following in Ndebele v Ncube1992 (1) ZLR C 288 (S) at 290C-E:
'It is the policy of the law that there
should be finality in litigation. On the other hand, one does not want to do
injustice to litigants. But, it must be observed that in recent years,
applications for rescission, for condonation, for leave to apply or appeal out
of time, and for other relief arising out of delays either by the individual or
his lawyer have rocketed in numbers. We are bombarded with excuses for failure
to act. We are beginning to hear more appeals for charity than for justice.
Incompetence is becoming a growth industry. Petty disputes are argued and then
re-argued until the costs far exceed the capital amount in dispute. The time
has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura
subveniunt - roughly translated, the law will help the vigilant but not
the sluggard.'"
Having regard to the inordinate
delay in making this application, the total disregard for the Rules of both
Courts, the unsatisfactory nature of the explanation tendered by the applicant
as well as the prejudice likely to be caused to the respondents by the grant of
this application, I consider this to be one of those cases where the cumulative
effect of the factors set out above is such that the application ought not to
be granted. The applicant is, in my judgment, totally undeserving of the
indulgence of condonation whatever the prospects of success.
The application is dismissed with costs.
