Condonation or Judicial Indulgence re: Approach, Time-Barred Proceedings, Extension of Time and Interests of Justice

HB22-14 : TATENDA PATIENCE MUKUDU vs ANDREW MALETE
Ruled By: MUTEMA J

I feel constrained to advert to various other material aspects of this matter. It remains a mystery why the applicant could not simply visit the Registrar's office and peruse the relevant file HC784/07. She had the case number but she, for some inexplicable reason, decided to pursue the issue with her erstwhile legal practitioners first ...

HB112-14 : KEMBO MOHADI and OTHERS vs BARBRA LUNGA (in her capacity as the Provisional Liquidator of NERRY INVESTMENTS (PVT) LTD) and CBZ BANK
Ruled By: TAKUVA J

This is an application for condonation of late filing of a notice of opposition in case number HC2988/12. The facts are as follows:- On 4 September 2012, the first respondent (as applicant), in case number HC2988/12, filed with this court a chamber application accompanied by a certificate of urgency. The first respondent, relying on Rule 242(2)(c) of this ...

This is an application for condonation of late filing of a notice of opposition in case number HC2988/12.

The facts are as follows:-

On 4 September 2012, the first respondent (as applicant), in case number HC2988/12, filed with this court a chamber application accompanied by a certificate of urgency. The first respondent, relying on Rule 242(2)(c) of this court's Rules sought a provisional order ex parte. The matter was placed before a judge in chambers and was granted on 6 September 2012.

Subsequently, on 13 September 2012, the first applicant was served, personally, with the provisional order. Instead of filing a notice of opposition, the first applicant's attorneys, Messrs G. N. Mlotshwa and Company, appealed the provisional order to the Supreme Court. Meanwhile, the respondents set down case number HC2988/13 on the unopposed roll of the 7^th February 2013. The applicants were barred by operation of Rule 233(3) of the High Court Rules, 1971.

The applicants then filed this application seeking condonation of late filing of a notice of opposition and that costs be costs in the cause.

The respondents filed a notice of opposition on 20 February 2013 and the first applicant filed an answering affidavit on 6 March 2013….,.

The first applicant's application is based on the following factors;

1. That he acted timeously by instructing a legal practitioner to defend the matter.

2. That the legal practitioners adopted an incorrect procedure.

3. That the inability of the legal practitioners to follow the correct procedure in prosecuting the applicant's instructions should not be visited on him.

4. That the first applicant's prospects of success on appeal are good in that firstly, the respondents adopted an incorrect procedure which was grossly inappropriate and irregular. It was submitted that the respondents should have issued summons instead of proceeding by way of an urgent chamber application since the various claims sounded in money. Reliance was placed on Ex Combatants Security Co v Midlands State University HH80-06; William v Turnstall 1949 (3) SA 835; and Miller v Roussot 1975 (1) RLR 324.

5. That there is no proof placed before the court in case number HC2988/12 that the various amounts claimed are due and owing. Therefore, the first applicant has a valid defence against the claims made by the respondents in case number HC2988/12.

The application was opposed on the following grounds;

1. The 1^st applicant was fully aware of what he was required to do if he intended to oppose the provisional order in that the provisional order was served on him personally and it clearly stated that he was required to file opposing papers supported by affidavits within ten days from the date of service.

2. The 1^st applicant decided to note an appeal at the Supreme Court. This was a choice he consciously made and that it turned out to be a wrong decision should not be used as a ground for seeking condonation.

3. The decision to commence the 1^st respondent's case by way of action cannot be a ground for allowing the 1^st applicant to re-open the case since these issues should have been raised in a proper way as provided for by the provisional order and the Rules of this court.

4. The claims made against the applicants are clearly set out and supported by vouchers signed by the applicants. They are not claims for damages but rather repayment of the company's money unlawfully taken by the 1^st applicant.

5. The 1^st applicant's founding affidavit does not reveal a defence or any disputes of fact.

6. The 1^st applicant's prospects of success are non-existent in that he failed to produce proof of authorization by way of a Board resolution.

The sole issue that falls for determination is whether the first applicant has established the requirements for an application for condonation.

The broad principles that guide the court in an application for condonation were set out in the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A) in the following words;

“It is well settled that in considering applications for condonation, the court has discretion, to be exercised judicially, upon a consideration of all of the facts; and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include;

(i) The degree of non-compliance with the Rules;

(ii) The explanation therefore;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(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.”

In Bishi v Secretary for Education 1989 (2) ZLR 240 (HC), it was held, per CHIDYAUSIKU J…, that the following are the factors to be taken into account in considering whether good cause has been shown:

“(a) The degree of non-compliance with the Rules;

(b) The explanation therefore;

(d) The importance of the case;

(e) The convenience of the court;

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

In Kombayi v Berkout 1988 (1) ZLR 53 (SC), it was stated that “the broad principles the court will follow in determining whether to condone the late noting of an appeal are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) The prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

Applying these principles to the facts, I find that the extent of the delay in casu is considerable. The first applicant became aware of the provisional order in September 2012 and he filed this application on 7 February 2013 - a period of six months. The degree of non-compliance with the Rules is phenomenal in that in terms of the Rules, the first applicant was supposed to file a notice of opposition within ten (10) days from the date of service but he only acted after a period of approximately 180 days.

In my view, this delay is clearly inordinate.

The explanation or reason advanced for the delay is that the legal practitioner who was briefed to prepare the notice of opposition decided, on his own, to mount an appeal against a provisional order.

That this procedure is incorrect is beyond question.

It was further submitted that since the appeal was filed before the dies induciae expired, the inescapable conclusion is that the applicant acted timeously in his desire to defend the matter.

It was contended, on behalf of the applicant, that the issue is whether the inability of the legal practitioners to follow the correct procedure in prosecuting the applicant's instructions should be visited on the applicant.

Counsel for the first applicant submitted that the court should do justice between the parties, and, in casu, the errors of the applicant's erstwhile legal practitioners should not be visited upon the applicant.

The law is clear on this point.

In Bishi v Secretary for Education 1989 (2) ZLR 240 (HC), it was held that “while the courts are very reluctant to visit the client with the sins of his legal practitioner, there has to be a limit beyond which the courts will not go.”

See also Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A) where STEYN CJ remarked as follows:

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the sufficiency 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.”

See also Kombayi v Berkout 1988 (1) ZLR 53 (SC).

In the present case, the applicant admitted that he was personally served with the provisional order in September 2012. That order clearly spells out what the applicant was required to do. The applicant is not some simpleton but a businessman who should have read the provisional order.

There is no affidavit from the erstwhile legal practitioner acknowledging the error.

The lawyer being, an agent, would not have taken the decision to appeal mero motu without instructions from the applicant. Further, the lawyer would not have crafted grounds of appeal before taking instructions from the applicant. It is at this stage that the applicant should have asked his lawyer why he was not making affidavits and signing them within ten (10) days from the date they received the provisional order. If this question was asked and the lawyer had given some explanation, this should have been mentioned in the founding affidavit. This was not done. Instead, in paragraph 5(b) of his founding affidavit, the applicant states that he gave the lawyers “specific instructions to defend the matter” and he was assured that the matter “was being defended.” He stated that he did not enquire as to the “exact manner in which” his defence was prosecuted as that is the exclusive province of attorneys. It is clear that even if the legal practitioner was negligent, there is also evidence of total inaction on the part of the applicant. No explanation has been tendered for that inaction.

For these reasons, I find that the explanation given for the delay is totally unsatisfactory.

I now turn to the prospects of success on the merits.

In his founding affidavit, the applicant simply states that he had “a valid and lawful defence” to case number HC2988/12 without stating what exactly his defence is – see paragraph (f)(i). In paragraph (h), he contended that case number HC2988/12 consists of “claims for damages, or, put differently, claims that must be pursued through a summons action.” He further submitted that this kind of relief cannot be obtained through an application procedure, let alone an urgent chamber application.

In my view, case number HC2988/12 is not about a claim or claims for damages but is based on specific documents signed by the applicant acknowledging receipt of all amounts he took from the company without authorization by the company. Specific allegations were made that the applicant paid school fees for his son in South Africa using company funds. There are other numerous examples of such unlawful conversion of funds to personal use. The claims are for refund of such amounts. All that was required of the applicant was to file proof of authorization in the form of a company resolution. This he has not done and one wonders what sort of defence the applicant is talking about. What is clear though, from the papers, is that whatever defence he is harping on is mala fide.

It follows, therefore, that the applicant's prospects of success on the merits cannot be described as good.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.

HB115-14 : NICOLE MPOFU vs NHLABATHI N.O. (In his capacity and the Executor dative of the Estate late Hedwick Mpofu) and ADMIRE MPOFU and OTHERS
Ruled By: MAKONESE J

This matter came before me in motion court on the 15th of May 2014. I dismissed the application and indicated that my reasons would follow. These are my reasons. On the 5th September 2012, the applicant, who was represented by legal practitioners, filed an application for review under case number HC3004/12. The order sought by the applicant ...

This matter came before me in motion court on the 15^th of May 2014. I dismissed the application and indicated that my reasons would follow.

These are my reasons.

On the 5^th September 2012, the applicant, who was represented by legal practitioners, filed an application for review under case number HC3004/12. The order sought by the applicant in the Draft Order is in the following terms:-

“1. The distribution account by 1^st Respondent and confirmed by the 7^th Respondent be and is hereby set aside.

2. The 1^st Respondent be and is hereby ordered to draw a new distribution account within 30 days of service of this court order.

3. The costs of suit on an attorney and client scale shall be borne by any person who opposes this application.”

After the filing of the application, there was no activity in this matter until seven months later when the applicant filed another Application for Condonation for The Late Filing of the Review application. This second application was lodged with this court on the 19^th April 2013. There was no movement in the matter until October 2013 when the matter was enrolled on the unopposed roll. Certain queries were raised in court and then the matter resurfaced again in motion court on the 15^th April 2014.

The procedure for application for reviews is governed by the provisions of Order 33 of the High Court Rules. Any proceedings by way of a review shall be instituted within 8 weeks of the action or proceedings in which the irregularity or illegality complained of is alleged to have occurred.

In the instant case, the decision sought to be reviewed is a distribution account prepared by the first respondent and dated 31^st October 2007. The distribution account was confirmed by the seventh respondent on the 17^th January 2008 - this is some six years ago. It is apposite to note that some of the assets in the distribution account includes cattle, goats, donkeys, household property and an immovable property in Pumula, Bulawayo. I have no doubt that the goats and other livestock have long been distributed in accordance with the distribution account.

No reasonable explanation has been given to this court for the delay in bringing this application. In any event, and further, the applicant, who has always been represented by legal practitioners has shown no interest at all in the pursuit of this application. The conduct of the applicant is a flagrant abuse of court process. These courts are inundated with applications which are filed and never prosecuted. This habit has become common place and some legal practitioners do not even care to check the rules of the court before filing applications. One cannot understand how an application to review a decision made way back in 2007 can be made without first seeking condonation. It is baffling that after filing the initial Application for Review on the 5^th September 2012, it took the applicants several months before filing what purports to be an Application for Condonation for the Late Filing of the Review application. The application itself was only placed on the unopposed roll on 15^th May 2014.

The application itself does not disclose the reasons for the delay in bringing the matter to court.

The matter is clearly not properly before the court, and, as already indicated, amounts to an abuse of court process.

In the result, the application was dismissed.

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order.

Before I consider the merits of the appeal, it is pertinent to address two procedural issues arising from the papers before the court:

(i) Firstly, it was noted, that, the notice of appeal was filed eighteen days after leave to appeal was granted by this court, instead of the fifteen days required by Rule 5(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

However, upon inquiry, counsel for the appellant submitted, that, no hearing for the application for leave to appeal was held since the application was granted on the basis of the papers before the judge in question. The parties only got to hear of the order on a later date.

It is, in my view, important to point out in this respect, that, when an order is made in chambers following a determination of the matter on the papers before the judge, and in the absence of the parties, the Registrar should promptly notify the parties of the order.

This is particularly so, since the dies induciae for any subsequent filing of papers in the matter would start to run from the date of the order, not the date on which the order was served or came to the notice of the parties concerned.

In casu, it was the court's view that since the appellants could not be faulted for the delay in noting the appeal, such late noting could properly be condoned.

SC19-16 : PATRICIA DARANGWA N. O. (Capacity as Executrix Dative of Estate Late Juliet Munjeri) vs ELLA MUNJERI and OLIVER NAKOMA (Capacity as Executor Dative of Estate Late Bookwet Munjeri) and OTHERS
Ruled By: UCHENA JA

The applicant, in her founding affidavit, explained that the delay was not wilful. The respondent, relying on an affidavit by its legal practitioner, alleged that the applicant had been timeously informed of the court's judgment. This is disputed in the applicant's affidavit leaving one party's word against the other. The applicant's explanation for the delay ...

HH480-15 : SENELANE NDLOVU vs CHAPMAN ANOPA MUFUDZI MARUFU
Ruled By: MWAYERA J

We are alive to the very essential need for the Rules of this Court to be followed and complied with. However, given the central desire of administration of justice; where there is a credible explanation for non-compliance and also where there is no prejudice to the other party, it is my considered view ...

SC12-17 : JOHN CONRADIE TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH (MARONDERA INNER CITY) and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA

This is a chamber application for condonation and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules 1964. At the close of argument, I dismissed the application with costs with reasons to follow. I now proffer the reasons for that ruling. The judgment which ...

I now proffer the reasons for that ruling.

The judgment which the applicant seeks to appeal against was handed down by the High Court on 10 June 2015. No leave to appeal was required as the judgment was final and definitive. In terms of Rule 30, the applicant was required to file its notice of appeal within 15 days of the date of handing down judgment. The applicant did not, however, file its notice of appeal within the prescribed time limit. It only filed its notice of appeal with the Supreme Court more than five months later - on 18 November 2015.

It being common cause that the appeal was filed out of time it became incumbent upon the applicant to give a reasonable explanation for the inordinate delay of five (5) months.

In a bid to discharge that onus, Peter Mpiliwa, a Trustee of the applicant, and its erstwhile legal practitioner, Gwinyai Mharapara, deposed to supporting affidavits vouching that despite making numerous enquiries from the court a quo, the applicant only became aware of the judgment through Mr Mharapara on 30 October 2015. Mr Mharapara, in turn, advised Mr Mpiliwa of the existence of the judgment on 2 November 2015.

The respondents have no knowledge as to when the appellant became aware of the impugned judgment. No verification has been sought from the Registrar and his staff concerning the truthfulness or otherwise of the factual averments made by the applicant's representatives concerning this issue. For that reason, the respondents have mounted no serious counter-argument as to when the applicant became aware of the judgment in question.

There being no serious dispute to the factual averments made by the applicant's representatives in this respect, it is entitled to the benefit of a reasonable doubt. I accordingly come to the conclusion that the delay in noting the appeal was not wilful or deliberate.

Having come to that conclusion, I proceed to determine whether there are reasonable prospects of success on appeal.

SC21-17 : THE PRESIDENT OF ZIMBABWE, ROBERT GABRIEL MUGABE (in his official capacity) and OTHERS vs MORGAN TSVANGIRAI (in his official capacity as Prime Minister of Zimbabwe and in his personal capacity)
Ruled By: CHIDYAUSIKU CJ

I am aware that Rule 4C of the High Court Rules authorises the High Court to depart from its own Rules. Thus, if the Prime Minister had admitted his failure to comply with Rule 18, and had sought condonation for such failure to comply with Rule 18 of the High Court Rules, ...

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.BACKGROUNDAlthough the facts of this matter are mainly common cause, it is necessary to set them out ...

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.

BACKGROUND

Although the facts of this matter are mainly common cause, it is necessary to set them out in some detail in order to determine whether the court a quo exercised its discretion judicially.

The appellant was employed by the respondent as a Creditor's Clerk. He was charged under the relevant Code of Conduct with the offence of “any conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment and willful disobedience to a lawful order.”

It was alleged, that, the appellant failed to comply with written and verbal instructions given to him on 24 May 2001 regarding the checking of daily banking.

Following a disciplinary hearing, he was found guilty and dismissed on 15 August 2002.

He appealed against the decision to the internal Appeals Committee which upheld the decision of the disciplinary hearing on 4 September 2002.

About five months later, the appellant alleged, that, he filed a notice of appeal with the Labour Relations Tribunal Court on 26 February 2003. The respondent asserted, that, they were not served with the notice of appeal and there is no proof in the record that they were served.

The matter was never prosecuted.

The appellant states, in his founding affidavit, that, he made several inquiries with his legal practitioners about the appeal but did not get a satisfactory response. On 5 July 2006, he retrieved his file from his erstwhile legal practitioners and instructed new counsel. His new legal practitioners wrote a letter to the Registrar of the Labour Tribunal enquiring about the appeal. As they did not have a reference number, they did not receive a response.

Through his new counsel, the appellant then filed a chamber application for condonation of late noting of appeal and extension of time at the Labour Court in November of 2006.

This application, for some unknown reason, was only served upon the respondent in October 2012.

Perturbed by his new lawyers seeming ineptitude, the appellant wrote a letter of complaint to the Secretary of the Law Society of Zimbabwe in October of 2010 complaining against the legal practitioners. His legal practitioners then renounced agency.

He then enlisted the services of another lawyer.

Following the application for condonation made in 2006, the appellant then filed heads of argument in December of 2012.

The Labour Court dismissed the application for condonation of late noting of appeal and extension of time on 12 March 2013.

After a further five months, on 26 August 2013, the appellant filed for condonation for late filing of an application for leave to appeal to the Supreme Court.

This application was dismissed by the court a quo. He subsequently filed another application for leave to appeal which was eventually granted.

The appellant then filed his appeal with the Supreme Court on 19 November 2014.

The appellant has appealed to this court on four grounds which he set out as follows:

“1. The Court a quo misdirected itself by dismissing an application on the basis of the extent of delays occasioned to the appellant by members of this honorable court and their resultant failure to proffer reasonable explanation for the professional ineptitude.

2. The court a quo erred in failing to place importance of the case to the public at large which protection should only be seen to be given by this honorable court exclusively as one of the main purposes of the act.

3. The court a quo misdirected itself by upholding the need to put finality to litigation at the expense of justice thereby ignoring the record that clearly showed seriousness of purpose displayed by the now self-acting appellant throughout his case as a court of equality.

4. The court a quo erred by conditioning the glaring misrepresentation by a legal practitioner who forged appellants signature of an affidavit after inheriting the case from another lawyer who had also inadvertently and unjustifiably delayed to note an appeal as required by the hallowed rules of the Labour Court as provided for in Statutory Instrument SI59 of 2006.”

As can be seen from the grounds of appeal, the appellant is dissatisfied with the manner in which the court a quo dealt with his application for condonation of the late noting of an appeal.

It is therefore necessary to ascertain whether the court a quo complied with the requirements of the law in respect to such applications.

REQUIREMENTS FOR AN APPLICATION FOR CONDONATION

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S), GUBBAY CJ sets out factors to be considered in such an application. These are as follows:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

See also Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH667-15.

The appellant explains the delay by giving a series of unfortunate interactions with inefficient lawyers.

KORSAH JA, in Kombayi v Berkout 1988 (1) ZLR 53 (SC), stated thus:

“The broad principles the Court will follow in determining whether to condone the late noting of an appeal are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) The prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

In casu, even if the court were to disregard the time the appellant spent changing lawyers, the appellant disregarded the restriction of time placed by the Labour Court Rules.

Rule 15(1) of the Labour Court Rules provides for 21 days to note an appeal once one has received the decision.

The period between the granting of the judgment in 2002 and noting of the appeal, after instructing the first lawyer in February of 2003, is well beyond the 21-day limit.

No justifiable excuse has been proffered by the appellant as to why it took him so long to file the appeal.

The application for condonation was made on 12 November 2006, but only served on the respondents in 2012. They quickly opposed the application, but, the Heads of Argument were only filed on 27 December 2012.

From the papers before me, no explanation was made for this delay.

The court a quo cannot be faulted for finding that the delay was caused by the appellant's own dilatoriness.

In the case of H. J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 this court concluded that:

“…, there was no merit in the application for condonation because the applicant's predicament was due to its own dilatoriness. Having so found, the court proceeded to dismiss both applications with costs on the legal practitioner and client scale.”

With regard to the appellant's allegation that it was the incompetence of his erstwhile legal practitioner that led to the excessive delays, the court a quo, correctly in my view, held, that, even where this is the case one cannot seek to insulate himself using such a defence.

A litigant will not be completely absolved for the incompetence of his or her legal practitioner.

This principle was set out in the case of Kombayi v Berkout 1988 (1) ZLR 53 (SC)…, where KORSAH JA quoted with approval the case of Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A)…, where it was stated 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 the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.”…,.

It should also be noted, that, in the case of Ganda v First Mutual Life Assurance Society SC01-05 the court was at pains to explain that it is not enough for one seeking condonation to simply explain the delay of the failure to observe the Rules in the main appeal - but one needs to do so also with the delay in the seeking of the condonation.

“In addition, it is pertinent to note, that, it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation.

Thus, in Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H STEYN CJ said:

'What calls for some acceptable explanation is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.

As indicated, inter alia, in Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at p449, and in Meintjies case supra [Meintjies v H.D. Combrinck (Edms) Bpk 1961 (1) SA 262 (A)] at p264, an appellant should, whenever he realizes that he has not complied with a Rule of Court, apply for condonation without delay.'”

In the case of Musiyarira v Rufaro Marketing SC96-05 this court highlighted that it will be slow to interfere with a court a quo's decision on condonation as it involves the exercise of discretion.

“Condonation of the late noting of an appeal and granting an extension of time within which an appeal is to be noted are matters within the discretion of the court of first instance. Unless it has been shown that the learned President of the Labour Court misdirected herself in dismissing the application, this Court will not interfere with the exercise of that discretion.

The delay was indeed inordinate. The explanation given for the delay was correctly found unacceptable. There is nothing to gainsay the finding by the court a quo that there were no prospects of success on appeal.”…,.

The law is clear that there must be finality to litigation.

McNALLY JA spoke on this in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, when he said the following:

“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.”…,.

The appellant attempts to rely on Dalny Mine v Musa Banda 1999 (1) ZLR 220 (S)…, where the court stated, that, deciding labour matters on technicalities is not desirable.

However, if one examines the quote in full from this case, McNALLY JA stated as follows:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right….,.

I would think it often superfluous for the Tribunal to hear evidence relating to the irregularities.

I say 'often' because there may be cases in which this is not so.

It may be that the existence of irregularities will affect the date from which the termination of employment takes effect. It may sometimes take effect from the date on which the irregularity is cured.”…,.

As can be observed, his remarks are not a blanket cover for all technical defects.

It was highlighted that there are circumstances where a decision on technicalities could be warranted, and, in my view, this case is one such example.

The appellant's lack of diligence was of such gross magnitude that it ceased to be a mere technicality that can be cured.

With regards to the prospects of success, the appellant has not shown that he has any prospects of success on appeal.

His complaint was merely that the case had never been heard on the merits.

This is not sufficient.

He must allege facts, which, if proved, would show that he had prospects of success.

To grant condonation in respect of an appeal with little to no prospects of success only serves to clog the judicial system.

In casu, the merits of the appeal cannot even be ascertained as they were never explored in a trial court.

From its inception, this matter has been a series of applications for condonation and cries for mercy. The appellant alleges, that, this amounts to denying him a right to be heard for procedural technicalities.

However, it is clear, that, in the twelve years the matter has lingered in the justice system, if the appellant had been diligent, he would have had his day in court.

In my view, the appellant has failed to establish any justification for the delay which necessitated repeated requests for condonation. Further, the appellant has failed to demonstrate any prospects of success if condonation were granted and the appeal were to be heard. Finally, the potential prejudice to the other party is totally unacceptable. Not only has the respondent been put out of pocket in defending the multitude of applications but the matter has not, to date, been finalized.

Finally, the appellant does not allege that the court a quo failed to exercise its discretion properly.

As was stated in H.J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 by PATEL JA:

“As for the judgment appealed against, we are unable to find any fault or impropriety in the exercise of the court's discretion. Indeed, counsel for the appellant was unable to identify any misdirection by the court a quo in the exercise of its discretion to dismiss the applications for condonation and rescission of default judgment.”

DISPOSITION

There must be finality to litigation.

Twelve years is a remarkably long time before a matter is finalized by any standard. As such, the court a quo cannot be faulted in dismissing the application.

Accordingly, I make the following order:

1. The appeal is hereby dismissed.

2. The appellant shall pay the respondent's costs of suit.

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

What triggers the exercise of discretion by a court or a judge to grant or refuse condonation is the application: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…,.The court does not just do it of its own accord....,.In the interests of justice, Rule 4C of the High Court ...

HMA13-17 : COMMERCIAL SUGAR CANE FARMERS ASSOCIATION and ZIMBABWE CANE FARMERS ASSOCIATION and OTHERS vs THE MINISTER OF INDUSTRY AND COMMERCE and TRIANGLE LIMITED and HIPPO VALLEY ESTATES (PVT) LTD
Ruled By: MAWADZE J

I would, however, hasten to add that legal practitioners should take utmost care in drafting pleadings - especially in urgent matters. A lot of time is wasted in some instances arguing or dealing with matters which simply are a result of lack of proper or due diligence by legal practitioners concerned….,. I am ...

HH91-15 : WILBERT MUNONYARA vs CBZ BANK LIMITED and SHERIFF OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

The facts of the matter are themselves disarmingly simple. The first respondent advanced a loan to a company called Pritsborough Marketing (Pvt) Ltd in which the applicant was one of the Directors. The applicant is one of the Directors who signed as guarantor and co-principal debtor. In addition, he tendered his property, Stand 1212 ...

The facts of the matter are themselves disarmingly simple.

The first respondent advanced a loan to a company called Pritsborough Marketing (Pvt) Ltd in which the applicant was one of the Directors. The applicant is one of the Directors who signed as guarantor and co-principal debtor. In addition, he tendered his property, Stand 1212 Marlborough, Harare as security and had a first mortgage bond registered on the property.

When the debt was not settled, the first respondent instituted summons action against the applicant and others, in HC9134/10, seeking an order for payment of what remained outstanding on the loan. In due course judgment was entered against the applicant, in default, on 17 February 2011, and a writ issued against the applicant's property, sparking the relentless litigation I have referred to.

The applicant's immovable property, which was placed under attachment, was subsequently sold despite spirited effort by the applicant to stop the sale in HC3613/11. All applications to stop the sale failed and even the challenge against confirmation of the sale came to naught.

All that did not stop the applicant filing this application, on 8 July 2014, for condonation of the late filing of a rescission of judgment application, a suspension of the Sheriff's sale of his property, and for the placement of a caveat on his Title Deed No. 3240/92 on the pain of costs to be borne by the first respondent. This, despite the fact that not only was the judgment sought to be rescinded carried into execution a long time ago, the Sheriff's sale of his property was confirmed a long time ago with the purchaser having already taken transfer. In addition, it would not be possible to place a caveat on a title deed which exists only on paper, the property previously held by it having exchanged hands.

As if that was not bad enough, in his founding affidavit he sets about on a wild goose chase telling a story about meetings he held with certain individuals, including the other Directors of Pritsborough Marketing (Pvt) Ltd, as he made attempts to be released from liability. The affidavit is remarkable, not for what it says, but for what it does not say. It does not even begin to give an explanation why the applicant did not act timeously; why he should be condoned when the application was made four (4) years after execution; what he was doing in between; and what the basis of his defence is.

What is apparent from all this is that the applicant does not appreciate that condonation is forgiving a wrong committed by a litigant who regrets it, and, having repented, he seeks to be given another chance. There must, therefore, be an explanation given for inaction which is worthy of the court's forgiveness. As the old proverb goes: 'Forgiving the unrepentant is like making pictures on water.

Condonation is an indulgence.

A party seeking to approach this court for a rescission of a judgment entered in the absence of that party must do so within one (1) month of becoming aware of the existence of the judgment sought to be rescinded. That is in terms of Rule 63(1) of the High Court Rules, 1971. If that is not done, then, condonation of the late filing of the application must be sought. The point is made by SANDURA JA in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR (S)…, that:

“If he does not make the application within that period, but wants to make it after the period has expired, he must first of all make an application for condonation of the late filing of the application. This should be done as soon as he realises that he has not complied with the Rule. If he does not seek condonation as soon as possible he should give an acceptable explanation not only for the delay in making the application for the rescission of the default judgment, but also for the delay in seeking condonation.”

Certain broad factors which the court has to take into account in deciding whether to condone a failure to comply with the Rules of Court have emerged from decided cases. These are:-

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(d) The possible prejudice on the other party should the application be granted.

See Qalisa Investments (Pvt) Ltd v Drummont HB146-11…,.; Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…,.; Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…,.; Ncube v CBZ Bank Ltd & Ors HB99-11…,.

In the present case, the applicant has failed to satisfy even a single requirement.

For a start, the delay involved between the grant of the default judgment on 17 February 2011, and the filing of this application for condonation, on 8 July 2014, is over three (3) years. Not the slightest hint is given in the papers as to why the applicant took so long to approach the court and what he was doing during that time. It was, however, during that period, that the judgment was executed bringing into the fray a third party who purchased the house. We know, of course, that it was, again, during that period, that the applicant contented himself with filing endless defective, if not meritless, applications to stop the sale.

Accordingly, no explanation whatsoever is proffered for the delay, let alone a reasonable one. More importantly, the applicant clearly does not have a defence in the main action. He has repeatedly been advised as much, and by BERE J in the judgment I have cited above involving the same parties; but like the Biblical Thomas, he would want to see for himself. As BACON once put it:-

“There is, in human nature, more of the fool than the wise.”

The applicant signed a Deed of Suretyship guaranteeing payment of the debt. He later sought to extricate himself from the shackles of that suretyship - but the wrong way. Instead of engaging the beneficiary of that suretyship, he engaged his co-Directors thereby leaving himself firmly within the web of that security to the extent that the first respondent was concerned. No amount of litigation, applications, supplementary affidavits, supplementary this or that filed without regard to the provision of the Rules, as the applicant has seen fit to file, can change that position. Judgment was therefore properly sought and properly granted. It will not be rescinded for the reasons advanced by the applicant.

As I have already stated, there is a third party now involved who bought the property and took transfer. He has not even been cited in these proceedings. The prejudice on that third party, and, indeed, on the first respondent is there for all to see.

The inescapable conclusion, therefore, is that this application is hopeless by its lack of merit; it should not have been made at all especially as the applicant has been warned, in the past, that any further attempt to pursue the same matter will only result in him suffering grief….,.

In the result, the application is hereby dismissed with costs on a legal practitioner and client scale.

HB81-16 : FESTOR CHINEKA vs PRO-VICE CHANCELLOR and NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and STUDENT DISCIPLINARY COMMITTEE
Ruled By: MATHONSI J

The application was…, only brought…, well outside the eight weeks period, and the applicant did not seek and obtain condonation for the late filing. It is trite that condonation must precede the filing.

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS
Ruled By: MAKONESE J

In spite of the non-compliance with the mandatory Rules noted above, the applicant has not bothered to apply for condonation for the failure to comply with the Rules; inspite of such non-compliance having been brought to the applicant's attention by the respondents on the 11th of March 2016 at the first hearing of the ...

HB106-16 : RAPHAEL MASUKU and SICINGILE MASUKU vs SHERIFF OF ZIMBABWE and THERESA BELL and STANLEY NAZOMBE
Ruled By: TAKUVA J

This is an application for condonation of late filing of an application to set aside the decision of the first respondent confirming the sale of Stand Number 4022 Khumalo Township, Bulawayo….,. In Kodzwa v Secretary for Health Anor 1999 (1) ZLR 313 (SC) it was stated that: “The factors which the court should consider in determining an ...

This is an application for condonation of late filing of an application to set aside the decision of the first respondent confirming the sale of Stand Number 4022 Khumalo Township, Bulawayo….,.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC) it was stated that:

“The factors which the court should consider in determining an application for condonation are clearly set out in HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts of South Africa, 5^th edition, CILLIERS and LOOTS at page 897 -898 as follows:

'Condonation of the non-observance of the Rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance.'

The court's power to grant relief should not be exercised arbitrarily and upon the mere asking but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially, upon a consideration of all the facts, and, in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.”…,.

See also Bishi v Secretary for Education 1989 (2) ZLR 240 (HC); United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 (A); Chimunda v Zimuto & Anor SC361-05; Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC).

These requirements have been summarised as;

(a) The degree of non-compliance.

(b) The explanation therefore.

(d) The importance of the case.

(e) The convenience of the court.

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

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE
Ruled By: MATHONSI J

There is a catena of cases to the effect that for condonation to be granted, there must be a substantive application for it. In Forestry Commission v Moyo 1971 (1) ZLR 254 (S)…, GUBBAY CJ stated: “I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was on the face ...

There is a catena of cases to the effect that for condonation to be granted, there must be a substantive application for it. In Forestry Commission v Moyo 1971 (1) ZLR 254 (S)…, GUBBAY CJ stated:

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was on the face of it, a grave non-compliance with Rule 259. For it is the making of the application which triggers the discretion to extend the time. In Matsambire v Gweru City Council SC183-95 (not reported) this court held that where proceedings by way of review were not instituted within the specified eight weeks period and condonation of the breach of Rule 259 was not sought, the matter was not properly before the court. I can conceive of no reason to depart from that ruling. One only has to have regard to the broad factors which a court should take into account in deciding whether to condone such a non-compliance, to appreciate the necessity for a substantive application to be made. They are:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(d) The possible prejudice to the other party should the application be granted.

See Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S) at 357 D-G.

How can a court exercise a judicial discretion to condone when the party at fault places before it no explanation for the delay?

Moreover, in every such application the respondent is entitled to be heard in opposition. He must be permitted an opportunity to persuade the court, that the indulgence sought is not warranted. Without hearing him, how can a court, for instance, be satisfied that he will suffer no possible prejudice by the condonation?”

It has long been decided that an application for condonation must precede the main application. A party who finds himself out of time to make an application must first seek condonation before making the application; Sibanda v Ntini 2000 (1) ZLR 264 (S); Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,.

SC08-18 : MUNYARADZI HOVE vs ZIMPHOS LIMITED and REGISTRAR OF THE SUPREME COURT and SHERIFF FOR ZIMBABWE
Ruled By: ZIYAMBI AJA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964. This application is brought in terms of 'Rule 63 as read with Rule 449(1)(a) of the High Court Rules, 1971 for condonation of the late noting of an application for rescission of a default judgment given in chambers by MAVANGIRA JA ...

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

This application is brought in terms of 'Rule 63 as read with Rule 449(1)(a) of the High Court Rules, 1971 for condonation of the late noting of an application for rescission of a default judgment given in chambers by MAVANGIRA JA in chambers on 13 July 2017.

The applicant states that he learnt of the judgment on 28 July 2017. He approached the second respondent who advised him to seek legal assistance. His legal practitioners attempted to file an application for rescission but this was rejected by the second respondent who believed the Rules did not provide for such an application. After a series of comings and goings, and much discussion with the registry staff, the applicant's legal practitioners eventually filed this application on 6 November 2017.

The applicant attached to his papers a return of service by the Deputy Sheriff dated 21 June 2017 indicating that there was merely an attempted service at the applicant's address for service which is the address of the applicant's Trade Union. He averred that since the notice was not served on him the default judgment ought to be set aside and he be allowed to file an application for rescission of the default judgment - a copy of which application was attached to his founding papers.

The applicant further averred that as far back as 19 April 2017, when collecting a letter from the second respondent relating to the payment of security for costs, he had advised the second respondent of his change of address. He attached, in support, a letter from the second respondent of 19 April 2017 showing that he had indeed uplifted the letter on that date. The letter bore the applicant's name and new address. Despite this, he averred, the second respondent had continued to use the old address. His default was, therefore, not wilful and the reason therefor had been satisfactorily explained.

He averred, further, that the application for leave to appeal was not 'doomed to failure' since the Labour Court's error on the composition of the Grievance and Disciplinary Committee of the first respondent has 'since been pronounced by this Court in another similar matter.'

The supporting affidavit by Governor Pendei, the legal practitioner, confirmed the application was drawn on 30 August 2017 but encountered administrative hurdles at the office of the second respondent which hindered the timely filing thereof. He averred, without more, that the application enjoyed 'high prospects of success as explained in the founding affidavit.'

Counsel for the first respondent submitted that the application for rescission bore no prospects of success as there were no prospects that the application for leave to appeal might be successful.

The genesis of the matter, as appears from the judgment of the Labour Court refusing leave to appeal, is that “the applicant was dismissed from employment by respondent after due process. The applicant appealed to the Labour Court which dismissed its appeal”. That was in January 2014. In June 2014, some five (5) months after the date for filing an appeal had expired in terms of the Labour Court Rules, the applicant filed an application for condonation of the late noting of an application for leave to appeal. That application was dismissed by the Labour Court mainly on grounds that there were no prospects of success on appeal.

On May 14 2015, the applicant sought leave of the Labour Court to appeal against its order dismissing the application for condonation. The Labour Court considered the three (3) grounds of appeal raised, namely, whether the disciplinary committee was properly constituted, whether there was evidence, on a balance of probabilities, against the applicant, and whether it was competent for the Disciplinary Committee, mero motu, to call witnesses. After considering the grounds of appeal and finding them to be devoid of merit, the Labour Court expressed the view that in any event the applicant had not shown that the court which dismissed the application for condonation had exercised its discretion improperly. It therefore dismissed the application for leave to appeal.

In his submissions, counsel for the applicant justified his application in terms of the High Court Rules by stating that the application was properly brought in terms of the said Rules as the Supreme Court Rules are silent on this subject without citing the relevant Rule of the Supreme Court.

In my view, legal practitioners ought to cite the relevant Rule in terms of which an application is placed before the courts. Merely to assume that the court is aware of its Rules is insufficient. The Rules are to be cited for the purpose of drawing the attention of the Registrar as well as the opposing party to the legality of the course taken by the applicant. Had the applicant cited the correct rule of this Court empowering him to adopt the course which he did most of the time wasted in argument and discussions with the second respondent would have been avoided.

In order to succeed in the instant application, the applicant had to establish, among other considerations, that the application for rescission of judgment to be placed before this Court enjoys prospects of success. As explained to counsel for the applicant, the applicant made no averments in his founding affidavit that would satisfy me that on that score. Neither the two judgments of the Labour Court dismissing his appeal and his application for condonation, nor the record of proceedings, was attached to his papers. In addition, nothing has been averred which shows an improper exercise of the discretion of the Labour Court which dismissed the application for condonation. The fact that the court's decision was not to the applicant's liking is insufficient to invoke the limited powers which the Supreme Court has to interfere with a judicial exercise of discretion by a primary court. The bland averment, without more, that the Supreme Court has pronounced otherwise is most unhelpful.

In my view, it has not been shown that there are prospects of success on appeal both on the grounds of appeal raised as well as the fact that no impropriety has been shown in the manner in which the Labour Court's discretion to dismiss the application for condonation was exercised.

While this is not an appeal against the decision of the Labour Court, its reasons for denying the application for leave to appeal cannot be ignored.

For the above reasons, the application for rescission of judgment has no prospects of success and the instant application for condonation is accordingly dismissed with costs.

SC29-18 : RESERVE BANK OF ZIMBABWE vs T. LLOYD MUFUDZI and RICHARD USEYA and NYASHA CHIKAZAZA and WARAIDZO TANDI
Ruled By: GOWORA JA, BHUNU JA and ZIYAMBI AJA

This is an appeal against a judgment of the Labour Court dismissing an application for condonation of the late filing of an application for leave to appeal to the Supreme Court. It arises from the facts set out briefly hereunder. The appellant, in 2010, embarked on a retrenchment exercise which affected the respondents, among others. Following the usual negotiations ...

This is an appeal against a judgment of the Labour Court dismissing an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.

It arises from the facts set out briefly hereunder.

The appellant, in 2010, embarked on a retrenchment exercise which affected the respondents, among others. Following the usual negotiations with the Works Council, a retrenchment agreement was concluded between the appellants' and the respondents' representatives on 8 December 2010. Thereafter, pursuant to this agreement, each respondent was requested to, and did, sign an 'Acknowledgement Form' containing the agreed terms of the retrenchment. With specific reference to motor vehicles and lap tops, the agreement provides:

“Vehicle +5years – Drive out.

-5years - Calculated at book value.

Laptop - Take out at book value.”

Certain items, like housing and clothing allowances, were provided for in the following terms:

“…,. Housing Allowance – in terms of Bank Policy.

Clothing Allowance – in terms of Bank Policy.”

The above notwithstanding, the appellant refused to avail the vehicles and laptops to the respondents reasoning that in terms of the respondents' contracts of employment they were not entitled to the same.

The dispute was referred to arbitration and the Arbitrator ruled in favour of the respondents.

The appellant's appeal to the Labour Court was dismissed on 24 October 2012. The judgment is date stamped 30 November 2012. In terms of the Labour Act [Chapter 28:01] an appeal, on a point of law only, lay, with leave, to the Supreme Court. Any application for leave was to be made within 30 days of the date of the judgment.See Labour Court Rules 2006, Rule 36.

No application was filed within that period.

On the 11^th of September 2013, the appellant filed an application for condonation of the late filing of an application for leave to appeal to the Supreme Court. The reason for the delay was said to be the failure of the office of the Registrar to notify the appellant or its legal practitioners of the delivery of the judgment. No explanation was given by the appellant as to how it eventually became aware of the judgment. The learned Judge found the delay to be inordinate and the explanation for the delay unreasonable. Regarding the prospects of success, the learned Judge, after considering the contents of the retrenchment agreement, as set out in the ACKNOWLEDGMENT FORM as read with the judgment sought to be appealed against, concluded:

“It is, in my view, unlikely that an Appeal Court will interfere with the findings and conclusions reached in this matter, based on the clear and unambiguous contents of the retrenchment agreement.”

An application for leave to appeal against this judgment was dismissed by the Labour Court but subsequently granted by this Court.

THE APPEAL

The first ground of appeal alleged an error at law by the court a quo in finding that the delay was inordinate and the explanation therefor unreasonable. The second alleged a misdirection at law by that court in ruling that the appellant had no prospects of success on appeal in the main matter.

The appeal runs foul of two legal principles;

(i) The first is section 92F(1) of the Labour Act[Chapter 28:01] which provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

(ii) The second is that the indulgence of condonation is granted or denied at the discretion of the court of first instance and an Appellate Court will not, except in limited circumstances(see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)), interfere with the exercise by the lower court of that discretion….,.

Condonation is an indulgence granted at the discretion of the court of first instance and is not a right obtainable on request. In an application for condonation, a court considers, among other things, the length of the delay, the reasonableness of the explanation for it, the prospects of success, and the need for finality in litigation.

Here, the delay was found to be inordinate, the explanation proffered for the delay unreasonable, and the prospects of success non-existent.

Where a discretion has been exercised and a decision arrived at by a court of first instance the principles enunciated in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) are applicable. They were stated by GUBBAY CJ as follows:

“It is not enough that the Appellate Court considers that if it had been in the position of the primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution…,.”…,.

The judgment of the court a quo is well reasoned. The learned Judge carefully assessed all the relevant factors. Nothing was alleged, or proved, to justify interference by this Court with the judgment of the lower court.

It is for the above reasons that, after hearing submissions by counsel, the appeal was dismissed with costs.

Appealed
SC58-18 : BONNYVIEW ESTATES (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED and THE MINISTRY OF LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JA

This is a chamber application for condonation for the late filing of an appeal and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules, 1964. The facts giving rise to this application are common cause. On 21 June 2017, the High Court dismissed with costs an application filed ...

This is a chamber application for condonation for the late filing of an appeal and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules, 1964.

The facts giving rise to this application are common cause.

On 21 June 2017, the High Court dismissed with costs an application filed by the applicant seeking an order declaring that the applicant was entitled to all benefits deriving from the first respondent's occupation of a section of a farm, known as Bulfield Farm, over which it had passed a servitude in favour of the first respondent. On 12 July 2017, the applicant duly noted an appeal against the decision. Whilst it filed the Notice of Appeal within the prescribed period, the appellant failed to serve a copy of the Notice of Appeal on the Registrar of the High Court within the period, thereby rendering the notice out of time and fatally defective. The applicant then filed this application seeking condonation for the late filing of the Notice of Appeal.

The period of delay in serving the Registrar of the High Court with the Notice of Appeal was one day. The delay between the date the applicant became aware of the defect in the Notice of Appeal and the filing of the present application is ten months.

In the draft Notice of Appeal attached to this application, the applicant raises one ground of appeal as follows:

“The court a quo erred and misdirected itself at law in finding that the appellant did not have locus standi in judico to institute action seeking the relief it sought against 1^strespondent arising out of a purported compulsory acquisition of portion of Bulfield Farm by 2^nd respondent, which portion of Bulfield Farm was the subject of a notarial deed of servitude registered in favour of the 1^st respondent on 11^th July 1995.”

The application for condonation and extension of time within which to note an appeal was not opposed. At the hearing of the matter, counsel for the first respondent indicated that he was content to have the application granted as he was confident that he would have his day in court when the appeal was argued.

Notwithstanding the consent of the first respondent to the order sought, I am not persuaded to grant this application.

Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules. Good and sufficient cause is established by considering, cumulatively;

(i) The extent of the delay;

(ii) The explanation for that delay; and

(iii) The strength of the applicant's case on appeal or the prospects of its success.

This is trite.

In casu, as stated above, the delay that resulted in the Notice of Appeal being out of time was negligible. It was a delay of one day. However, the delay between the dates when the applicant realised its failure to serve the Notice of Appeal on time and the date of this application, being some ten months, was not only inordinate but was neither adverted to nor explained in the application. In the interests of allowing access to justice, I may have been inclined to overlook the delay if the applicant had some prospects of success on appeal.

It is the absence of any prospect of success on appeal in this case that has moved me to deny this application.

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

It is the accepted position of the law that an applicant who has failed to comply with a given court order or infringed the Rules of the Court must seek to be condoned, or pardoned, for non-compliance, first, before applying for re-instatement of their case. In the case of Zimslate Quartize (Pvt) Ltd Others v ...

HH123-15 : MARGARET MARANGE vs TAFIRENYIKA KAPENDE and PAUL MWONZORA
Ruled By: MATHONSI J

An application for condonation must be made as soon as a party requiring it realises that he has not complied with the Rules. If such party does not do so, he should give an acceptable explanation not only for the delay in making the application for the rescission of judgment but also for the delay ...

HH720-14 : PANDHARI LODGE (PVT) LTD and SUNDAY CHIFAMBA and SWISIDAYI NYAMUFUKUDZA vs CENTRAL AFRICA BUILDING SOCIETY and DEPUTY SHERIFF
Ruled By: MANGOTA J

Rule 324 states that a writ of execution, once issued, remains of force until such time as the judgment has been satisfied. The rule is peremptory. It offers no discretion to the parties, or to one of them, to alter or amend it...,. The courts, as an institution, should dispense justice instead of injustice. The procedural irregularities ...

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

I also stood down the point on urgency because counsel for the respondents had no views on it….,. Although nothing said by counsel for the applicant cures the defect in the founding papers, particularly the certificate of urgency, I have abandoned the point. I have exercised my discretion in terms of Order 1 Rule 4C of the ...

HHH724-15 : PETER CHIKUMBA vs THE STATE
Ruled By: MAFUSIRE J

Section 5 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules reads: “5. Departure from the Rules A judge of the Supreme Court or the High Court, or the Supreme Court of (sic) the High Court, may direct a departure from these rules in any way where this is required in the interests of justice, and, additionally or alternatively, may ...

SC01-19 : AFRITRADE INTERNATIONAL LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA

This is a chamber application for condonation and extension of time within which to note an appeal made in terms of Rule 31 of the Supreme Court Rules, 1964. At the close of arguments I granted the application by consent….,. BACKGROUND FACTS The brief background of this application may be summarised as follows: The applicant is an international business company ...

BACKGROUND FACTS

The brief background of this application may be summarised as follows:

The applicant is an international business company incorporated in the British Virgin Islands in Guernsey in the Channel Islands but is not permitted to trade in that jurisdiction. The respondent is a body corporate, responsible for the collection, amongst other taxes, of Value Added Tax (VAT) in Zimbabwe.

The respondent sued the applicant in the High Court alleging non-payment of VAT by the applicant. The facts leading to the dispute are that on 1 October 2007, the Governor of the Reserve Bank of Zimbabwe (RBZ) unveiled the Basic Commodities Supply Side Intervention (BACOSSI), a facility designed to end chronic shortages of basic commodities in Zimbabwe. The applicant and Reserve Bank of Zimbabwe (RBZ) concluded an agreement in which the applicant supplied basic commodities to the RBZ. The respondent conducted a tax investigation of the purchases, in foreign currency, made by the Reserve Bank of Zimbabwe (RBZ) between May 2006 and September 2008. It is alleged that during the course of this period the applicant was not remitting the requisite Value Added Tax (VAT) to the respondent.

The applicant unsuccessfully defended the respondent's suit resulting in a judgment being granted in favour of the respondent. Aggrieved by this outcome, the applicant noted an appeal to this court.

In compliance with Rule 30 of the Supreme Court Rules, 1964 the applicant filed its notice of appeal in this Court on 11 November 2015 within the stipulated 15 day period. The appeal went through the usual processes set out in the Rules. Heads of Arguments were filed by both parties upon which they awaited the set down date from the Registrar of this Court.

On 8 August 2017, the parties were invited by the Honourable Chief Justice to attend in his chambers concerning the Notice of Appeal. Following a discussion, it was conceded by the applicant that the notice of appeal was defective in two respects. Firstly, the preamble to the Notice of Appeal did not state whether the appeal was directed against the whole or part of the judgment, and, secondly, the relief sought did not comply with the Rules. As a result of the defects, the applicant withdrew the appeal.

On 31 August 2017, the applicant filed an application for condonation and extension of time within which to note an appeal. The application was granted by ZIYAMBI AJA on 19 September 2017. In granting condonation the court ordered as follows:

“The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order in terms of Rule 31(8) of the Supreme Court Rules (1964).”

Following the grant of the above order, the applicant awaited the call for the next step by the Registrar.

On 21 March 2018, after having waited in vain for close to six months, the applicant's legal practitioner decided to follow up the matter with the Registrar. It was only then that he was advised that he should have filed his notice of appeal and this therefore meant there was no appeal before the court. The applicant thereafter filed the present application.

APPLICANT'S SUBMISSIONS

Counsel for the applicant submitted that he understood the above order to mean that the Notice of Appeal had been deemed to have been filed therefore there was no need for him to file or serve another copy of the notice of appeal. He was of the view that after the conclusion of the matter before ZIYAMBI AJA the Registrar was going to write to him requesting the filing of heads of argument since the notice of appeal filed in the application had been deemed to have been filed.

He was thus surprised when he was advised that the appeal was, again, out of time considering that the order was given on 19 September 2017.

RESPONDENT'S SUBMISSIONS

The respondent initially opposed the application on the basis that the delay in seeking condonation and extension of time within which to file the appeal was inordinate. However, during the hearing the respondent conceded that the phrasing of the order has caused considerable problems to litigants and there was need for the order to be interpreted.

In interpreting the order, I am of the view that it is also necessary to set out the procedure which ought to obtain once such an order has been granted.

INTERPRETATION OF THE ORDER

The order is couched with a few variations in accordance with Rule 31(8) of the Supreme Court Rules, 1964 as read together with Practice Direction No.1 of 2017 which was issued by the Chief Justice. Rule 31(8) reads as follows:

“If leave to appeal or leave to appeal out of time is granted, the appeal shall be deemed to have been instituted in accordance with the notice of appeal filed in the application on the date on which it was granted.”

Form 3 to the Practice Direction which deals with Chamber Applications For Condonation And Extension Of Time states in the relevant part as follows:

“1….,.

2….,.

3. The notice of appeal shall be deemed to have been filed on the date of this order (or on such date as may be fixed by the Judge).”

The order which was granted by the Court stated as follows:

“The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order in terms of Rule 31(8) of the Supreme Court Rules (1964).”

As can be noted, the order that was granted incorporates the wording in Rule 31(8) and Form 3 of the Practice Direction No.1/2017.

As alluded to earlier, this order has caused a lot of problems to the majority of legal practitioners and litigants alike who have interpreted the word “deemed” in the above order to mean that once the court has made an order the Notice of Appeal filed of record has been filed with the court. As the order is made primarily from Rule 31(8) it is necessary to begin by interpreting this Rule.

A proper reading of Rule 31(8), in my view, merely states that the Notice of Appeal that has been filed by the applicant is the notice that will have been accepted by the court in granting the extension of time. The applicant cannot, thereafter, file a different Notice of Appeal to the one that was filed in the application for condonation and extension of time to appeal.

It also seems to me that the assumption made by legal practitioners and litigants is legally wrong as it seeks to read the Rules in isolation. It completely disregards the Rules that state that service has to be effected on the Registrar of this Court, Registrar of the court a quo as well as the respondent(s). This is all prescribed in Rule 29(2).

In terms of procedure, it also overlooks the fact that in granting an application for condonation and extension of time with which to appeal there is no record of proceedings which is being appealed against and that no specific case number has been accorded to the intended appeal.

In my view, therefore, when the court makes an order such as the one in question, it simply means that the “draft” Notice of Appeal, which must be filed together with the chamber application for condonation and extension of time to note an appeal, has been accepted by the court.

In my view, it follows that the applicant must thereafter file the Notice of Appeal within the prescribed period in terms of the Rules.

PROCEDURE AFTER THE GRANTING OF THE ORDER

It is also necessary, for the sake of completeness, to mention that the acceptance of the notice of appeal does not do away with the appeal process - it actually marks its genesis.

The granting of an application for condonation and extension of time means that one has been granted an indulgence by the court to do that which they ought to have done in the first place. Under the circumstances, there is no pending appeal before the court. In other words, it means that soon after the issuance of the order the applicant's legal practitioner ought to revert back to the initial process of noting an appeal.

The process begins with the noting of an appeal to this Court. It is at this stage that the appellant is issued with a case number. In terms of Rule 30(a), where leave is not necessary, an appellant has fifteen days within which to file and serve the notice of appeal. This same 15 day rule applies with equal force where an applicant has been condoned and granted extension of time within which to note an appeal - unless a shorter period is ordered by the judge.

In casu, the applicant had 15 days from the date the order was made within which to file its Notice of Appeal under a new and separate case number.

Thereafter, the applicant is mandated to comply with the provisions of Rule 29(2) which is to the effect that the Notice of Appeal shall be served on the Registrar of this Court, the Registrar of the High Court and the respondent. It automatically follows that once the appeal has been noted and served on the relevant parties, Rule 34 comes into effect. It mandates that the requisite fees be paid to ensure the preparation of the record. Thereafter, in terms of Rule 43, the parties may be called upon to file their heads of arguments and the appeal is finally set down.

In simple terms, the effect of the above order is, since condonation and extension of time has been granted, the applicant has been granted the indulgence to file his appeal, and, in doing so, the prescribed provisions in the Rules apply.

It is imperative to note that the Notice of Appeal filed in the application is merely a draft that sought approval from the court and it forms part of the chamber application record. It is not a stand-alone document. Therefore, once an order is given pertaining to the chamber application that file is closed and the matter is deemed to have been completed. The contents therein cannot be tempered with. It also does not form part of the record which is being appealed against. In the event that the above procedure is not complied with, the Appeal record will not have a Notice of Appeal as part of its papers.

DISPOSITION

The failure to comprehend the import of this order has been a major cause for concern for a long time. It has completely defeated the concept of bringing finality to ligation as applications for condonation have kept coming back concerning the same case because they will not have complied with the Rules.

It is for this reason that I have sought to interpret the Rule, the meaning of the order, and to set out the procedure that must be followed after the order has been granted.

Following the hearing of this application, I made the following order by consent:

“1. The application for condonation of non-compliance with Rule 30 of the Supreme Court Rules, 1964, be and is hereby granted.

2. The application in terms of Rule 31 of the Supreme Court Rules, 1964 for extension of time within which to appeal be and is hereby granted.

3. The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order in terms of Rule 31(8) of the Supreme Court Rules, 1964.

4. There shall be no order as to costs.”

SC40-19 : SHINGIRAI PHILIP KATSANDE vs ANGELINA KATSANDE (NEE NYAHEMWA)
Ruled By: PATEL JA

This is a chamber application for the condonation of non-compliance with the Rules of this Court and for an extension of time within which to note an appeal against the judgment of the High Court in Case No. HC5315/07, handed down on 19 February 2015 as Judgment No. HH150-15. On 9 March 2015, the applicant, who ...

On 9 March 2015, the applicant, who is employed in the Zimbabwe National Army as a Lieutenant-Colonel, noted an appeal against the judgment of the High Court. He was a self actor at that time. In September 2015, he was despatched to China on official duty for a period of about two years, which period was extended for a further one year. He returned to Zimbabwe on 30 October 2017. He then enquired with the Registrar as to the status of his appeal and was advised that the appeal was deemed to have lapsed because of his failure to make any arrangements for the preparation of the record. The relevant correspondence from the Registrar had been written during his absence from the country.

On 28 September 2018, the applicant filed a chamber application for condonation and extension of time in Case No. SC709/18. This application was dismissed on 15 February 2019 in default of his appearance at the hearing of the matter. He avers that he did not receive the notice of set down for the hearing. He has now filed the present chamber application for condonation and extension of time on 13 March 2019.

The application is strenuously opposed by the respondent.

In an application for condonation and extension of time to appeal the applicant is required to provide a reasonable explanation for his failure to prosecute the matter timeously and to demonstrate that he has reasonable prospects of success on appeal.

The applicant has conceded that he has no reasonable explanation for the delay between the dismissal of his earlier chamber application for condonation by reason of his default on 15 February 2019 and the filing of the present application on 13 March 2019. More importantly, he has proffered no explanation whatsoever for the failure to prosecute his intended appeal from the date of his return to this country on 30 October 2017 and the date when he filed his first chamber application on 28 September 2018 - a period of inaction of almost eleven months.

However, that is not the end of the matter.

In considering his prospects of success on appeal, it is reasonably clear that he had agreed, at the pre-trial conference stage in the proceedings a quo, to pay the school fees for the four children of the marriage. However, there is nothing to show that he agreed to pay any specific amounts for those fees or the monthly rate at which would be required to reimburse the respondent for the fees that she had already paid or would continue to pay thereafter. The court a quo ordered that the applicant should pay the current school fees for all four children and that he should also reimburse the respondent at the rate of US$1,000= per month in respect of an unspecified total amount to be repaid. In making this order, the court did not take into account the current financial standing of the parties.

In my view, the court a quo was required, in making an order that is just and equitable, to have due regard to the respective earnings of the parties, and, in particular, to the earnings of the applicant himself. At the relevant time, his net monthly salary appears to have been in the region of US$1,300=. If this is correct, and the respondent has not attempted to dispute the figure, the order granted by the court a quo was clearly unrealistic and incapable of practical fulfilment. It would then follow that the court erred and misdirected itself in failing to take the applicant's earnings into account in determining the monthly sums that he should be ordered to pay for past and current school fees.

In the event, although the applicant has failed to provide reasonable explanations for the two delays that I have adverted to, he has demonstrated a very arguable case on appeal in respect of the monetary amounts that he was ordered to pay by the court a quo.

The application should therefore be granted.

However, because of the applicant's failure to prosecute the matter diligently and timeously, he should be mulcted with an order for costs on a punitive scale, such costs to be paid as a precondition to his being allowed to proceed with his appeal. Indeed, the applicant himself was not averse to such order being made so as to enable him to pursue his appeal.

In the result, it is ordered that:

1. The application for condonation for non-compliance with the Rules be and is hereby granted.

2. The applicant be and is hereby granted an extension of time within which to file and serve his notice of appeal.

3. The applicant shall file and serve the notice of appeal within ten days from the date of this order.

4. The applicant shall pay the costs of this application on a legal practitioner and client scale within ten days from the date of this order.

5. In the event that the applicant fails to comply with paragraph 4 above, this order shall lapse ipso facto on the last day for compliance with that paragraph and this application shall be deemed to have been dismissed on the same day.

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

At the hearing I granted the application for condonation as I held the view that the legal practitioners of the defendant had handled the matter in a very perfunctory fashion….,. The default judgment was granted due to the fault of the legal representatives of the defendant….,. Twenty-seven (27) animals have been taken away from her without her side ...

HH223-13 : HWANGE COLLIERY CO. LTD and HWANGE COAL GASIFICATION CO. PL vs HWANGE COAL GASIFICATION CO. PL and TENDAI SAVANHU and KINGDOM BANK LTD and STANBIC BANK LTD and GUO FENG and ORS
Ruled By: MAFUSIRE J

There has been ferocious litigation in a space of four months pitting several protagonists. The dispute was convoluted and the issues multi-faceted. At the centre was a company called Hwange Coal Gasification Company (Private) Limited. For ease of reference I shall refer to this company as the Coal Gasification Company. The one protagonist was a Chinese company by the name of Taiyuan Company Limited. The variants to that name, vehemently disputed by the other protagonists, were Taiyuan Sanxing Company Limited and Taiyuan Sanxing Economic and Trade Company Limited….,.Hereafter I shall refer to it as “Taiyuan”.

The other protagonists were two Chinese nationals and businessmen called Guo Feng (“Feng”) and Su Longmin (“Longmin”).

In the hearing before me, and for convenience, the two were referred to as the “Samukange faction”.The reason shall soon become apparent.

The next lot of protagonists were Zimbabwean nationals and businessmen Cephas Msipa (“Msipa”) and Gilbert Chahwanda or Chawanda (“Chawanda”). In the hearings they were referred to as the “Dzvetero faction”.

The next lot was Hwange Colliery Company Limited (“Hwange Colliery”). Three commercial Banks, Stanbic Bank Zimbabwe (“Stanbic”), Kingdom Bank Zimbabwe (“Kingdom”), and Allied Bank Zimbabwe (“Allied Bank”) were cited in some of the cases.

The last protagonist was one Tendai Savanhu (“Savanhu”).

Apart from the urgent chamber applications listed as cases 1 to 6 above there had been two others before them. They had pitted essentially the same parties. At the time of the hearing three other proceedings, in the form of a court application and two actions, were still pending.

The litigation related to the protagonists' investment in, and control of the two companies Taiyuan and the Coal Gasification Company.

The brief background is that in October 2006 some Chinese nationals, including Feng and Longmin, got associated in a joint venture with some Zimbabwean nationals that included Msipa, Chawanda and one Leo Mugabe (“Mugabe”). The object of the joint venture was to invest in various ventures. For that purpose, the Chinese nationals used Taiyuana as the special purpose vehicle. Both Feng and Longmin were directors. The special purpose vehicle used by the Zimbabwean nationals was a company called Stoat Mining (Private) Limited (“Stoat”) in which Mugabe, Msipa and Chawanda were directors.

In 2007, Taiyuan, now comprising both the Chinese and the Zimbabwean nationals, on the one part, and Hwange Colliery on the other, entered into a written agreement for the construction of a coke oven and a battery at Hwange Colliery on the basis of build, operate, own, and transfer (“the BOOT agreement”). In June 2011 the parties obtained an investment licence from the Zimbabwe Investment Authority (“the ZIA licence”). The ZIA licence stipulated a shareholding configuration of 75% for Taiyuan and 25% for Hwange Colliery.

The Coal Gasification Company was the special purpose vehicle formed by both Taiyuan and Hwange Colliery. The shares were held 75% by Taiyuan and 25% by Hwange Colliery.

The principal object of the Coal Gasification Company was the processing and carbonization of coal from resources within Zimbabwe. In terms of the BOOT agreement, the configuration of the Board of Directors for the Coal Gasification Company would be five (5) from Taiyuan and two (2) from Hwange Colliery. The chairman of the Board would be a Taiyuan appointee. Taiyuan's representatives on the first Board comprised Feng and Longmin as executive directors; Msipa and Chawanda as non-executive. Another Chinese national by the name of Zhang Jin Yuan (“JinYuan”) was the chairman. From Hwange Colliery came Savanhu and one Fred Moyo (“Fred Moyo”) then chairman and managing director respectively.

Taiyuan and Hwange Colliery soon clashed.

One of the points of contention by Hwange Colliery was that the Coal Gasification Company had breached the BOOT agreement. Hwange Colliery moved to cancel that agreement and to seek damages. Under HC537/13 it sued both Taiyuan and the Coal Gasification Company for damages amounting to $21 million. The matter was still pending at the time of the urgent chamber applications.

The other bone of contention by Hwange Colliery was that it had been induced to enter into an agreement with a non-existent company. This allegation stemmed from the confusion surrounding the identity of Taiyuan. The BOOT agreement and the ZIA licence identified Taiyuan as Taiyuan Sanxing Company Limited. However, Hwange Colliery alleged that such a company did not exist and that only after the BOOT agreement had been executed was a company called Taiyuan Sanxing Economic and Trade Company Limited formed in China.

Hwange's further bone of contention was that its BOOT partner, Taiyuan, was in turmoil. Its shareholders were at each other's throat. This allegation stemmed from the fact that the Chinese and the Zimbabwean nationals were bringing a series of applications against each other in the name of the Coal Gasification Company with both factions claiming to be the legitimate and authorised representatives of that company. Hwange Colliery was apprehensive that its investment in the Coal Gasification Company would be dissipated.

Hwange Colliery further claimed that Taiyuan had reneged on its pledge to bring into the country an amount of US$40 million as part of its injection into the joint venture. Therefore, Hwange Colliery was seeking cancellation of the BOOT agreement.

Within the Coal Gasification Company itself matters soon came to a head.

In March 2013 JinYuan, as chairman, called for the holding of an Annual General Meeting. It was scheduled for 24 April 2013. Feng and Longmin were vehemently opposed to that meeting. They moved to block it. On 19 April 2013 they filed an urgent chamber application under case no HC3003/13 in the name of Taiyuan Sanxing Economic and Trade Company Limited. Messrs G N Mlotshwa & Co represented the applicant. Hwange Colliery was cited as the substantive respondent. One Ananias Banda, the Company Secretary, and the Registrar of Deeds, were cited as nominal respondents.

The matter came before MAWADZE J.

A point in limine was taken that the Taiyuan as cited was not the Taiyuan as was recorded on the ZIA licence and with which Hwange Colliery had entered into an agreement. Mr Mlotshwa conceded. The application was dismissed with costs on the point in limine.

The Annual General Meeting (AGM) went ahead as scheduled. Among other resolutions, Feng and Longmin would be suspended from the Coal Gasification Company.

A day after the Annual General Meeting (AGM), i.e. on 25 April 2013, Feng and Longmin, in the name of Taiyuan Sanxing Economic and Trade Company Limited, filed an ordinary court application under HC3160/13 for an order nullifying the AGM and all the resolutions taken thereat. At the time of the hearings that application was still pending.

In May 2013 Feng and Longmin were formally suspended and called to a disciplinary hearing to answer various charges including one of fraud. The suspension letters were signed by Msipa as director. Feng and Longmin were eventually dismissed as executive directors in default of appearance at the disciplinary committee.

The Coal Gasification Company reconstituted its Board of Directors. The new Board wrote to the Banks, Stanbic, Kingdom and Allied Bank to “freeze” the company's accounts.

On 5 June 2013 Feng and Longmin, together with three other Chinese nationals, were barred access to some Harare premises rented by the Coal Gasification Company from Hwange Colliery. The one letter was signed by Chawanda. The other, in long hand, was signed by one Chininga who was said to be from Hwange Colliery. But this was disputed.

Feng and Longmin went on the attack.

They threatened the Banks and warned them not to take instructions from persons that were not signatories to the accounts. Feng reminded them that he was the signatory and that the signing instructions had been given by him. On 6 June 2013, before BERE J, Feng and Longmin obtained a spoliation order in the name of the Coal Gasification Company against Mugabe and Hwange Colliery. They were granted unhindered possession and control of the aforesaid premises. Mugabe and all those claiming rights through him were ordered to maintain peace and to allow undisturbed access to the applicant and to return any company documents and office keys. However, in subsequent proceedings, Hwange Colliery claimed that Feng and Longmin had been mala fide in that they had obtained the spoliation order not with any genuine intention to re-occupy the premises but merely to gain access in order to pilfer company assets such as office furniture and to cart them away to unknown destinations.

On 20 June 2013 Feng and Longmin filed two further urgent chamber applications (“the twin applications”). They were almost identical. They were both in the name of the Coal Gasification Company as the applicant. The applicant, in reality Feng and Longmin, was now represented by Venturas and Samukange. The one application was under HC4861/13. It is case no. 4 above. In that application it was sought to “unfreeze” the account at Kingdom Bank. The respondents were Kingdom, Chawanda and Msipa. Antonio & Dzvetero represented Chawanda and Msipa. Hwange Colliery was not cited. Kingdom remained neutral and sought to abide by the court order.

The other application was filed under HC4895/13. It is case no. 5 above. In that application the first respondent was Stanbic. That Bank also remained neutral and agreed to abide by the order of the court. Again, Hwange Colliery was not cited. HC4895/13 came before DUBE J. She heard it on 24 June 2013. The matter was settled by consent. The parties agreed to an interim order. The freeze on the Stanbic account would be uplifted. The authorised signatories would be Fred Moyo, one Tafara Gadzirai (“Gadzirai”) and Feng. These would have unconditional access to the account. Gadzirai would countersign for all withdrawals. The actual wording of the material portion of the order was as follows:

“That pending the final determination of this matter, Applicant is granted the following relief:

1. The 1^st Respondent be and is hereby ordered immediately and forthwith upon service of this order to unfreeze the Applicant's account being 0240057759001 held by the 1^st Respondent.

2. Applicant's authorised signatories named Fred Moyo, Tafara Gadzirai and Feng Guo shall have unconditional access to the account for the purposes of transacting on behalf of applicant provided that Tafara Gadzirai shall counter-sign for all payments.”

HC4861/13 came before MATHONSI J. He heard it on 26 June 2013. The parties also agreed to an interim order. It was almost identical to the one by DUBE J. However, before MATHONSI J could consider the application and the draft order by consent, Hwange Colliery applied to be joined to the proceedings. This was granted. The matter was postponed to the following week. As the Samukange faction filed the twin applications aforesaid the Dzvetero faction also filed its own. This was done on 21 June 2013, i.e. a day after the twin applications.

The Dzvetero application was filed under HC4897/13. It is case no.6 above. It was also in the name of the Coal Gasification Company as the applicant. The respondents were Feng, Longmin, Hwange Colliery, Allied Bank, Stanbic, Kingdom and a firm of chartered accountants called Welsa International Chartered Accountants. The Dzvetero application came before me. The basic relief sought was also to unfreeze the Bank accounts but to appoint the accountants as the sole administrators of those accounts pending the determination of the court application by the Samukange faction under HC3160/13. That was the application in which the validity of the Annual General Meeting (AGM) and the resolutions made thereat were being challenged.

It was upon perusal of the Dzvetero application that I became aware of the one Samukange application under HC4895/13 which had been placed before DUBE J. At that stage, I was neither aware of the other Samukange application under HC4891/13 that had been placed before MATHONSI J nor of the rest of the other proceedings referred to above. I did not immediately set down the Dzvetero application.

I had queries.

One of the averments in that application was that an Extraordinary General Meeting to resolve the entire shareholder issues in the Coal Gasification Company had been scheduled for 24 June 2013. Excluding the intervening weekend, the 24^thofJune 2013 was the next business day. So, in my view, there could have been no reasonable apprehension of an irreparable harm ensuing in that short space of time. Furthermore, it was common cause that it was the Dzvetero faction that had ordered the freeze on the Bank accounts. Therefore, I wondered why the intervention of the courts was being sought when the issue was now properly set for resolution in the boardroom by the “corporate parliament” of the company.

The supreme rule-making authority of a company rests with a general meeting of the members; see GOWER's Principles of Modern Company Law, 4^th ed…,.

At that stage, I was unaware that one of the issues that had triggered the twin Samukange applications was that the Banks had taken the position that given the apparent turmoil in the Coal Gasification Company, and that given the conflicting instructions and threats that they were receiving in respect of those accounts, the Banks would not unfreeze the accounts in the absence of a court order.

I called for the record of the one Samukange application under HC4895/13. But, by that time, the aforesaid order by consent by DUBE J had already been granted. However, I then became aware of the other Samukange application under HC4861/13 which had been placed before MATHONSI J and of the rest of the other applications referred to above. I then called for all the records.

Only thereafter did I get to appreciate the multifaceted disputes.

I set down the Dzvetero application for hearing on 27 June 2013. Mr T Mawere represented Hwange Colliery. Mr T Dzvetero represented the Dzvetero faction and the Coal Gasification Company. Mr J Samukange represented the Samukange faction and also the Coal Gasification Company.

At the hearing, Mr Mawere expressed concern that Hwange Colliery had not been cited in the twin Samukange applications and that the consent order by DUBE J had far reaching consequences that were prejudicial to Hwange Colliery in that, among other things, Fred Moyo, whom the two warring factions had selected as a co-signatory to the Bank accounts, was no longer employed by Hwange Colliery and that therefore he could not possibly represent it. It was further pointed out by Mr Mawere that the resolutions that the Samukange faction had used as authority to bring their twin applications in the name of the Coal Gasification Company had been signed by Savanhu - yet Savanhu had since been dismissed from the Board of Hwange Colliery.

In the premises, Mr Mawere gave notice that Hwange Colliery had filed, or would be filing, three urgent chamber applications;

(1) For an order that Hwange Colliery be joined to HC4895/13 and to vary the consent order by DUBE J so that Fred Moyo would be removed from the list of signatories and replaced by someone else properly appointed by Hwange Colliery;

(2) For an anti-dissipation interdict to prohibit the disposal of any of the assets of the Coal Gasification Company, especially the coal stocks, coking oven, and battery, by anyone purporting to act on behalf of that company until Hwange Colliery's claim for the cancellation of the contract and for damages under HC537/13 was determined; and

(3) For an interdict against Savanhu to stop him from masquerading as a director, representative, and appointee of Hwange Colliery on the Board of the Coal Gasification Company because he had been dismissed.

Mr Samukange vehemently opposed the intended applications.

Essentially, Mr Samukange's submission was that the choice of Fred Moyo as a co-signatory to the Bank accounts, in terms of the consent orders, was motivated not by his previous connection to Hwange Colliery but by the fact that he was a neutral person and that he was still a director of the Coal Gasification Company anyway even though he might have lost his employment with Hwange Colliery. Mr Samukange further submitted that, in terms of the agreement between the parties, Hwange Colliery would not be involved in the day to day management of the Coal Gasification Company; that the issue of signing on Bank accounts was one of management and that therefore Hwange Colliery was in effect seeking to sneak into the management of the Coal Gasification Company by the back door. He further submitted that the dispute between the two factions was not one for shareholders but one involving company management and that the interdict against Savanhu would be opposed on essentially the same basis, namely, that until Savanhu was properly removed from the Board of the Coal Gasification Company by that company itself Hwange Colliery had no right to do so especially given that it was just a minority shareholder.

The anti-dissipation order would be opposed on the basis that its effect would virtually paralyse and collapse the Coal Gasification Company the business of which was essentially the processing and disposal of coal.

Given the multi-faceted nature of the dispute and the issues between the parties, and given that they were so intertwined, it was readily agreed that all the matters would be consolidated and heard by a single judge.

Barring any unforeseen objections or complications it was agreed that I would hear the matters myself. The hearing was adjourned to a later date to be advised.

Hwange Colliery's three applications were subsequently filed under HC5171/13, being case no.1 above; HC5105/13, being case no.2 above and HC5331/13, being case no.3 above.

Eventually, I caused the matters to be set down for hearing on 5 July 2013.

Hwange Colliery was now represented by Advocate T Mpofu and Stanbic by Mr I Chagonda.

On that day, a new issue arose. It was on the consent order by DUBE J. It was for that single issue that Mr Chagonda was appearing. The new issue was this: it transpired that the parties could not agree on the interpretation of that order. Stanbic thought that the order could either mean that the three signatories Feng, Fred Moyo and Gadzirai had all to sign for any bank withdrawals but that the order could also mean that any two of them could sign for as long as one such signatory was Gadzirai.

The two factions favoured the interpretation that allowed any two to sign for as long as one of the signatories was Gadzirai. On the other hand, Hwange Colliery was vehemently opposed to that interpretation as it was feared that there could be connivance just to facilitate withdrawals. Consequently, Hwange Colliery favoured a restrictive interpretation that would allow withdrawals only when all the three signatories would sign.

On behalf of Stanbic, Mr Chagonda submitted that given the several threats for damages against it, the Bank would not permit any withdrawals until such time that the new signing arrangement was clarified.

The matter was adjourned to 11 July 2013 because Mr Samukange did not have some of the papers in the applications by Hwange Colliery. Before the resumption of the hearing on 11 July 2013 the Dzvetero faction had withdrawn its application under 4897/13. Therefore, the issue as to whether the interim management of the Bank accounts could be placed in the hands of the chartered accountants had automatically fallen away.

But, yet again, a new issue had arisen! It was also on the consent order by DUBE J.

Previously, on the day that the order had been granted, i.e. 24 June 2013, the Samukange faction had been represented by Advocate Firoz Girach. When the parties had come unstuck at Stanbic, as aforesaid, they had convinced themselves that what really they had consented to was the arrangement that any two of the three signatories could sign for any withdrawals for as long as one of such signatories was Gadzirai. Thus, the parties had then arranged to instruct Advocate Girach to approach DUBE J and seek an amendment of the consent order so that it would align with what allegedly was their true intention and true agreement. With Mr Dzvetero's consent, DUBE J had amended the order.

But there was a problem. Hwange Colliery had not been consulted.

Both factions had become aware, during the second sitting before me, that Hwange Colliery was disagreeing with such an interpretation and that not only would it be opposed to such an amendment but also that in its own application to be joined to those proceedings and for an amendment to that order it would move for an express provision that all the three signatories would have to sign for any withdrawals. Furthermore, since all the matters had been consolidated and would be heard by me, the propriety of pulling out the single record for purposes of amending the single order in terms which were disputed and in the absence of such an interested party as Hwange Colliery and without disclosing to both Advocate Girach and DUBE J that Hwange Colliery had in fact since filed its urgent chamber applications aforesaid was questioned.

Advocate Mpofu, for Hwange Colliery, expressed serious concern on the development....,.

However, before I grant that application, it is necessary to deal with the issue of joinder.

Hwange Colliery's application to be joined to the proceedings was sought as a final order. Strictly speaking, until it was joined it could not properly seek to interfere with the order to which it was not a party. Thus, it could not properly seek to have the consent order by DUBE J amended before it was joined.

However, I hold the view that this was merely a technical error in drafting. The relief sought as an interim order should first have sought the joinder and thereafter the rest of the orders sought. For the sake of expediency I am prepared to condone the error....,.

I also appreciate that the preparation of the papers could have been made in a rush in view of the perceived urgency.

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

In Supreme Service Station (1969) (Pvt) Ltd v Fox Goodridge (Pvt) Ltd 1971 ZLR…, BEADLE CJ said:“…,. I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as is possible, courts should not allow rules of procedure ...

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017. The examinations are managed by the second respondent, a body corporate duly established by and in terms of section 3 of the Zimbabwe School Examinations Council Act [Chapter 25:18].

The results for the November 2017 examinations were released by the second respondent on 23 February 2018. When the applicants and/or the children they represent attended at St David's Bonda Secondary School, which was their examination centre, to collect the results they were informed by the authorities there that their results had been withheld by the second respondent on grounds of alleged cheating.

The precise dates on which the withholding of the results was communicated to the applicants is not clear from their affidavits. Be that as it may, what is evident is that the applicants then instituted the instant urgent chamber application on 2 March 2018.

At the commencement of the hearing, the fourth applicant notified that she was withdrawing from the matter. Three applicants persisted with the application.

The application is opposed by both respondents.

Before hearing submissions on the merits of the application I heard argument on the objections in limine taken by the respondents....,.

The second respondent also objected in limine to the determination of the matter on the merits on five (5) grounds. These are:

(1) That the application is invalid for want of compliance with the provisions of Rule 241;...,.

On the question of the non-compliance with the proviso to Rule 241(1) the complaint is that the chamber application ought to have been in Form 29 with the necessary adjustments.

Counsel for the applicants conceded the non-compliance and moved condonation of the non-compliance by invocation of the powers reposed in the court or judge in terms of Rule 4C.

While there are judgments which suggest that the non-compliance with Rule 241 renders the application fatally defective, I hold a different view.

If this was the only defect complained of I would have considered whether there are indeed good grounds for the non-compliance to be condoned, especially as the respondents were served with the applicants' papers and had the opportunity to file opposing papers in the case of the second respondent.

But, this matter can be disposed of easily on the other points in limine.

SC01-13 : PAUL GARY FRIENDSHIP vs CARGO CARRIERS LIMITED and ACROSS ENTERPRISES (PVT) LTD
Ruled By: ZIYAMBI JA

In chambers in terms of Rule 5 of the Supreme Court Rules.

This is an application for condonation of the failure to note an appeal timeously as well as an extension of time within which to appeal against a judgment of the High Court dated 12 July 2012. The dies induciae for noting the appeal expired on 2 August 2012. This application was filed on 15 August 2012.

The background of the matter is as follows.

On 12 October 2011, the High Court granted a default judgment against the second respondent (of which company the applicant is a Director) ordering it to pay, inter alia, the sum of US$101,381=32 to the first respondent. Liability of the applicant to pay the second respondent's debt was founded on section 318 of the Companies Act [Chapter 24:03].

In terms of Rule 63 of the rules of the High Court:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an 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.

(3) Unless an applicant for the setting aside of a judgment in terms of this rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

The applicant was therefore presumed to have had knowledge of the judgment on 14 October 2011 unless he proved to the High Court to the contrary.

On 15 December 2011, the applicant filed two applications in the High Court. One was for condonation of failure by the applicant to file an application for rescission of the abovementioned judgment within the period provided for in Rule 63. The other was an application for rescission of the said judgment. Both matters were argued before the court a quo on 10 July 2012. The learned judge dismissed the application for condonation. The application for rescission of the judgment, dependent as it was on the success of the application for condonation, was also dismissed.

It is against this judgment refusing condonation that the applicant seeks to appeal.

In its founding affidavit, the applicant alleges that following the issuance of the judgment on 12 July 2012, he received an email from his legal practitioners on 17 July 2012 advising him to seek an opinion from counsel as to whether or not an appeal should be noted against the judgment. On 24 July 2012, he advised his legal practitioners to obtain an opinion from Advocate Morris. Instructions were immediately despatched to Advocate Morris to draft Heads of Argument, but, regrettably, he was ill-disposed and the Notice of Appeal could not be drawn within the peremptory time limits. The opinion has now been obtained from counsel who has drafted the Notice of Appeal which is attached to the application.

The reference to Heads of Argument confuses the issue but I will assume in favour of the applicant that the instructions were to give an opinion and to draft a Notice of Appeal if necessary. The use of the expression “ill disposed” is also confusing as it gives the impression that counsel was averse to the idea of noting an appeal against the judgment. But, here, again, the applicant could have meant that counsel was indisposed which would mean that counsel by reason of sickness or otherwise was unable to attend to the matter timeously. The confusion is not resolved on the papers as nothing more is said on the issue.

The application is opposed by the first respondent who avers that the application is an abuse of court process and it ought to be dismissed with costs on a punitive scale as a mark of the court's disapproval of the contemptuous conduct of the applicant for the following reasons:

The applicant has sought indulgences at various stages of the proceedings between the parties. The main application, in case No. HC3795/11, the matter in which default judgment was granted against the applicant and the second respondent, was filed on 19 April 2011. The applicant did not file a notice of opposition in the time provided and was time barred on 10 May 2011. The matter was set down for default judgment on the unopposed roll on 18 May 2011. On 17 May 2011, a day before the set down date, the applicant sought the consent of the first respondent to a withdrawal of the matter from the unopposed roll in order to enable him to make an application for the upliftment of the bar obtaining against him and to 'remedy his default'. The first respondent grudgingly consented to the withdrawal of the matter from the unopposed motion roll. Thereafter, it took the applicant thirteen days to file and serve the application for upliftment of the bar on the first respondent. Notwithstanding the fact that the respondent did not oppose the application, the applicant failed to prosecute it and in order to make some progress in the matter, the respondent filed a 'consent to the upliftment of the bar' on 12 September 2011 on condition the applicant filed its notice of opposition within ten days of 13 September 2011 on which date the consent to the upliftment of the bar was filed. The ten-day deadline was far more than the forty-eight hours indulgence that the applicant had requested. However, once again, the applicant failed to file its notice of opposition and default judgment was entered. On November 2011, the first respondent served a copy of the default judgment on the applicant.

In any event, so it was argued, the applicant had not shown that there were any prospects of success on appeal because the applicant had made a personal undertaking to repay the debt which undertaking he had not honoured.

Condonation is an indulgence which may be granted at the discretion of the court. It is not a right obtainable on demand. The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour. To that end, it is imperative that an applicant for condonation be candid and honest with the court.

Certain criteria have been laid down for consideration by a court/judge in order to assist it in the exercise of its discretion. Among these are;

(i) The extent of the delay and the reasonableness of the explanation therefor;

(ii) The prospects of success on appeal;

(iii) The interest of the court in the finality of judgments; and

(iv) The prejudice to the party who is unable to execute his judgment.

The list is not exhaustive.

The application was filed on 15 August 2012. The judgment was handed down on 12 July 2012. There are no affidavits from the applicant's legal practitioners, and Advocate Morris, supporting the allegations made concerning them by the applicant; neither does the applicant disclose the reason why it took him seven days to respond to the email from his legal practitioners, or the date on which instructions were despatched to Advocate Morris.The dies induciae expired on 2 August 2012. The explanation for the delay is itself confusing as I have already mentioned above. I do not, in the circumstances, consider that the applicant has given a reasonable explanation for the delay.

As far as the prospects of success are concerned, the applications before the court a quo were twofold. Since his application for rescission of the default judgment was way out of time, the applicant had to pass the hurdle of condonation of his failure to file that application on time. In his application for condonation before the court a quo he stated that he was making the application 'out of an abundance of caution' as he only became aware of the judgment against him on 13 December 2011. However, the court a quo found this averment to be untrue because a copy of the order in question was delivered to the applicant's legal practitioners by the legal practitioners of the first respondent on 9 November 2011. The court a quo appears to have proceeded on the basis that the applicant first had knowledge of the judgment on that date and found that the application for rescission of the judgment was out of time by six days. In view of the dishonest averment that he had first seen the judgment on 13 December, that was a generous finding on the part of the court a quo. The attitude that the application was being made out of an abundance of caution smacked of arrogance bearing in mind the lateness of the application, and ignored the fact that the applicant was seeking an indulgence from the court. The following excerpt from the judgment of the court a quo is instructive as to the view which it took of the applicant's explanation for the delay in filing the application for rescission of judgment:

“The applicant did not attach any affidavit from his erstwhile legal practitioners to explain the default. Apart from his mere allegation, there is nothing to demonstrate that the applicant sought an explanation for the default from his former legal practitioners. In a case such as the present where there is a history of consistent default on the part of a litigant and the legal practitioners are blamed for that default, it is necessary for the litigant to avail proof, preferably in writing, that it has demanded an explanation from the legal practitioners concerned…, on his part the applicant has not shown what steps he took to protect his interests….,.

The fact that the delay was of just below one week does not, on its own, assist the applicant. See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) at 253F-H.”

The learned Judge then went on to consider the prospects of success:

“The onus is on the applicant to show that he has a defence which has prospects of success. The applicant seems to suggest that because the requirements of s318 of the Companies Act have to be established for him to be personally liable then he has a defence which has prospects of success. That is not so. The applicant must set forth facts upon which the prospects of success of its defence may be assessed. The documents in the record show that the applicant personally admitted to being liable to pay the second respondent's debt owed to the first respondent.

In any event, it has been held that in cases of “flagrant breaches of the Rules, especially where there is no acceptable explanation therefore, the indulgence of condonation may be refused whatever the merits of the appeal are. This applies even where the blame lies solely with the attorney”. Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd, supra, at 254D-E; Tshivhase Royal Council & Anor v Tshivhase & Anor 1992 (4) SA 852 (A) at 859E-F.”

It is now settled that an appellate court will not interfere with the exercise of its discretionary power by a lower court unless it is shown that the lower court committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision. Halwick Investments v Nyamwanza 2009 (2) ZLR 400 (S); Sedco v Chimhere 2002 (1) ZLR 424 (S); ZFC Ltd v Geza 1998 (1) ZLR 137 (S).

It has not been shown that the learned judge improperly exercised his discretion in refusing condonation and certainly no allegation to that effect is contained in the Notice of Appeal sought to be filed. Having regard to the history of consistent disregard of the Rules, the learned Judge cannot be faulted in the exercise of his discretion against the applicant.

In addition, the very fact that the applicant has brought this application for condonation without a satisfactory explanation for the delay is further evidence of his disregard of the Rules of this Court. The paucity of evidence explaining the reason for his default and the fact that he had placed the blame for the default on his legal practitioners but filed no affidavits from them in support of his allegations were among the reasons for the dismissal by the court a quo of his application for condonation. Yet, the applicant did not learn from that criticism, but, instead, repeated the same mistake in the present application. The applicant's conduct displays a disdain for the Rules of Court and makes the inference irresistible that his desire to defend the matter is not bona fide but merely a ploy to delay the evil day to the prejudice of the first respondent who is entitled to execute his judgment bringing finality to the proceedings.

In view of the above, the appeal has no prospects of success.

The application is therefore dismissed with costs.

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal on the following grounds;

1. The court a quo erred in dismissing the application for condonation thereby unprocedurally hearing the matter unopposed.

2. The court a quo misdirected itself in finding that the appellant did not satisfy the requirements for condonation.

3. The court a quo erred in finding that the appellant did not have a bona fide defence to the application for vindication.

4. The court a quo erred in finding that the respondent had made a case for summary judgment.

While the appellant has listed four appeal grounds, they are clearly repetitive. Only two issues have to be determined in this appeal. They are:

(a) Whether the court a quo erred in dismissing the appellant's application for condonation and the upliftment of the bar; and

(b) Whether the court a quo erred in granting summary judgment....,.

On the merits of the appeal...,., I shall first consider the issue whether the court a quo erred in dismissing the appellant's application for condonation.

It is now settled that where a party has fallen foul of the provisions of the Rules, they are generally required to purge their default by seeking condonation. Where the party has not sought condonation for failure to comply with the Rules, it must give an acceptable explanation not only for the delay, but also the delay in seeking condonation.

It means that what calls for some acceptable explanation is both the failure to abide by the Rules and the failure to seek condonation. See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,; Maheya v Independent Africa Church 2007 (2) ZLR 319 (S)…,.

Consideration of an application for condonation involves the exercise of judicial discretion. Simply put, the court exercising a discretion is allowed the freedom, or authority, to make judgment or to act as it sees fit. In Bonneyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd and Anor SC58-18…, this Court made the point:

“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules and good and sufficient cause is established by considering, cumulatively, the extent of the delay, the explanation for that delay, and the strength of the applicant's case on appeal, or the prospects of its success.”

When calling upon the court a quo to exercise its discretion in favour of condoning the failure to file heads of argument on time, the appellant did not make a good case at all. In fact, submissions on behalf of the appellant advancing the cause for condonation were made as if condonation was a mere formality. No attempt whatsoever was made to satisfy the basic requirements for condonation.

In written heads of argument submitted in support of the oral application, counsel for the appellant admitted that the respondent's heads of argument in the court a quo were served on her on 17 September 2018 and yet the appellant's own heads of argument were filed on 29 January 2019. It was also conceded that the appellant was served with the Notice of Set Down of the application for summary judgement on 11 January 2019 - meaning that it took the appellant, even after becoming aware of the set down date of 4 February 2019, eighteen days to file the belated heads of argument.

What is more, although the appellant had about 24 days within which to make an application for condonation and the upliftment of the bar, even from the date of service of the Notice of Set Down on 11 January 2019, she did not see the wisdom to do so. Instead, she was content to prepare to make an oral application from the Bar.

This was extremely tardy and indeed irresponsible.

As it also turns out, counsel for the appellant urged the court a quo to grant condonation while at the same time submitting that the court a quo was precluded from proceeding with the hearing of the summary judgement application by an appeal noted at the Supreme Court.

The learned judge stated…,;

“At the hearing, counsel for respondent proceeded to make submissions for condonation, advanced one main (reason) that being that applicant's claim for vindication of the property remained under (challenge) in the Supreme Court in matter number SC211/18, and that the opposed motion proceeding couldn't be heard until the outcome of the appeal was forthcoming.

Counsel for applicant opposed the respondent's application for condonation, arguing, firstly, that the appeal which had been filed by the respondent challenging HUNGWE J's determination, was a challenge on costs only and not the merits, and, secondly, that the appeal had since been determined by consent…,. Accordingly, I find there is no appeal pending in the Supreme Court which would have the effect of delaying the resolution of the present matter on this opposed roll.

In the circumstances, I dismissed the application for condonation for want of merit.”

In dismissing the application for condonation as it did, the court a quo exercised discretion dealing with the matter as it deemed fit in the circumstances. It is not correct that no reasons were given for that.

An Appeal Court faced with an appeal against the exercise of judicial discretion does not have a fresh discretion as could be substituted for the one of the court below. As stated in the case of Friendship v Cargo Carriers Limited 2013 (1) ZLR 1 (S)…,:

“It is settled that an Appellate Court will not interfere with the exercise of discretionary power by a lower court unless it is shown that the lower court committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision: Halwick Investments v Nyamwanza 2009 (2) ZLR 400 (S); Sedco v Chimhere 2002 (1) ZLR 424 (S); ZFC Ltd v Geza 1998 (1) ZLR 137 (S).”

In this matter, it has not been shown that the court a quo was guilty of any of the improprieties set out by the authorities in exercising its discretion by refusing to condone the failure to file heads of argument within ten days from 17 September 2018.

In truth, there was nothing to condone at all as the appellant did not even begin to make a case for condonation. It is therefore my finding that there was no misdirection in refusing to condone the appellant's failure to file heads of argument on time.

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: BERE JA

This is an opposed chamber application for condonation of late noting of an appeal and extension of time within which to appeal in terms of Rule 43 of the Supreme Court Rules, 2018. The applicant seeks an order couched in the following terms:

“It is hereby ordered that;

(a) The application for condonation for non-compliance with Rule 38(1)(b) of the Supreme Court Rules, 2018 be and is hereby granted.

(b) The application for an extension of time to note the applicant's appeal be and is hereby granted.

(c) The appeal is deemed noted in terms of the Notice of Appeal attached hereto from the date of this order.

(d) Costs of this application shall be costs in the cause.”

The facts giving rise to this application can be gleaned from the filed papers and are as follows:

The applicant had been conducting mining operations in Chiadzwa District from 2009 under a Special Grant and stated that it was in undisturbed possession and occupation until February 2016. On 22 February 2016, the first respondent wrote a letter to the applicant notifying it that the special grant issued to it had expired therefore the applicant had to cease all mining activities with immediate effect and had to vacate the mining area. The applicant, together with its employees, was forced to vacate the mining location on the same date by armed police, leaving its assets on the site.

In March 2016, the applicant filed an urgent chamber application in the High Court against the respondents seeking restoration of the parties' status quo ante. This application was further necessitated by the first respondent's decision to terminate the applicant's right to conduct mining operations under a Special Grant. In the application, the applicant stated that it was substantially prejudiced by the respondents' conduct, and, resultantly, there was significant financial harm. In addition to this the applicant sought to justify its continued operations on the strength of the special grant which it alleged had been ceded to it by the first respondent.

That application was opposed by the first respondent who argued that the matter was not urgent and that the relief sought by the applicant sought to perpetuate an act of illegality. It stated that the applicant had no rights in the special grant as it had expired some years before. Further, it stated that the mining grant had been issued to the 'Zimbabwe Mining Corporation' and not to the applicant.

The application was argued before the court a quo and judgment in the matter was handed down on 30 March 2016.

In that judgment, the court a quo stated that although several points in limine had been raised by the respondents, it was of the view that the application had to be disposed of on substance and not on technicalities.

On substance, the court a quo found that the special grant relied on by the applicant had expired five years before it was declared expired in February 2016. It also held that the clause which allowed the applicant to work on sites ceded to it for an indefinite period was contrary to the peremptory provisions of section 291 of the Mines and Minerals Act [Chapter 21:05]. Resultantly, the applicant's application was dismissed.

Counsel for the applicant argued that the explanation of the delay in filing the appeal was reasonable as the applicant sought to deal with his Constitutional Court application before seeking remedy in the Supreme Court.

In addressing prospects of success in the intended appeal, counsel for the applicant submitted that the court a quo erred in finding that the special grant had expired and thus the applicant had not acquired any rights through the grant. He further contended that the question of legality or unlawfulness on the part of the applicant was irrelevant. He also contended that the court a quo had erred in not finding that the applicant was entitled to an order restoring the status quo ante when it had established that it was in peaceful and undisturbed possession of the mining location, and, further, that the court a quo had also erred in finding that the first respondent was entitled to summarily cancel the special grant, even without following due process.

Per contra, counsel for the first respondent argued that the applicant, in deciding not to appeal, and, instead, choosing to approach the Constitutional Court, had deliberately lost its right to appeal.

He further stated that by approaching the Constitutional Court, the applicant showed acquiescence of the judgment of the High Court. Counsel further argued that the applicant, by raising issues of entitlement to the special grant had invited the court a quo to make a determination on the substantive issue between the parties and that the court had proceeded to properly do so, as a result of which he opined that the applicant had no prospects of success on appeal.

APPLICATION OF THE LAW TO THE FACTS

In the case of Tel-One (Pvt) Ltd v Communication and Allied Services Workers Union of Zimbabwe SC01-06, GWAUNZA JA…, said the following:

“Essentially, in an application of this nature, the applicant must satisfy the court;

(i) Firstly, that he has a reasonable explanation for the delay in question; and

(ii) Secondly, that his prospects of success on appeal are good.”

Further, in the case of Florence Chimunda v Arnold Zimuto SC76-14 the court, per ZIYAMBI JA, held that the approach of the courts when dealing with applications of this nature is to consider the cumulative effect of the following:

“(i) The extent of the delay;

(ii) The reasonableness of the explanation tendered therefor;

(iii) The prospects of success on appeal;

(iv) The prejudice, if any, that is likely to be caused to the respondent should the application be granted; and

(v) The need to bring finality to the proceedings.”

EXTENT OF THE DELAY AND REASONABLENESS OF THE EXPLANATION

In the case of Ganda v First Mutual Life Assurance Society SC01-05, it was stated that:

“In addition, it is pertinent to note that it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation…,.”

From the record, the judgment which the applicant seeks to appeal against was handed down on 30 March 2016 and the present application was filed on 13 July 2018 following the handing down of the Constitutional Court judgment on 29 June 2018. The extent of the delay is therefore 2 years 3 months.

It is apparent that the delay was quite inordinate.

The applicant stated that it did not file a Notice of Appeal at the time it was supposed to because it had filed an application in the Constitutional Court under case number CCZ38/2016. In that application, the applicant sought relief in terms of section 85(1)(a) of the Constitution of Zimbabwe against the respondents together with 'ZMDC and ZCDC.'

In my view, the explanation for the delay is unreasonable in the sense that the time lines for an appeal have no relevance to any form of remedy desired in the Constitutional Court.

It was not necessary for the applicant to either wait for or link its appeal to the outcome of the Constitutional Court application. It was therefore unreasonable for the applicant to awake from his slumber, after the dismissal of his application in the Constitutional Court on 29 June 2018, to file the instant application.

PROSPECTS OF SUCCESS

In the case of Kombayi v Berkout 1988 (1) ZLR, KORSAH JA stated thus:

“The broad principles the court will follow in determining whether to condone the late noting of an appeal are: the extent of the delay; the reasonableness of the explanation for the delay; and the prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”…,.

As alluded to in the above case, it is imperative for an applicant making an application for condonation for the late noting of an appeal, to demonstrate to the court that the appeal enjoys prospects of success on the merits.

The issue to be determined in the intended appeal is whether the first respondent could summarily cancel the special grant without following due process.

The requirements and defences for a spoliation order were re-stated in the case of Augustine Banga & 2 Ors v Solom Zawe SC54-14 by GWAUNZA JA…, to be as follows:

“(i) The applicant was in peaceful and undisturbed possession of the thing; and

(ii) He was unlawfully deprived of such possession.”

In the case of Botha and Anor v Barrett 1996 (2) ZLR 73 (S)…, also cited by the learned judge a quo, the court qualified “unlawful deprivation” to mean that the respondent deprived the applicant of possession 'forcibly and wrongfully against his consent'.

The court a quo went on to list the valid defences against a spoliation claim, among them that:

“(i) The applicant was not in peaceful and undisturbed possession of the thing in question at the time of dispossession; and

(ii) The dispossession was not unlawful and therefore did not constitute spoliation.”

In the case of Chesveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H) REYNOLDS J…, stated that:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous & Another 1975 (4) SA 215 (NC)).

Lawfulness of possession does not enter into it.

The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time that a competent court of law assesses the relative merits of the claims of each party. Thus, it is my view that the lawfulness or otherwise of the applicant's possession of the property in question does not fall for consideration at all.”…,.

From the cited cases, the position of the law is quite clear in that an application for a spoliation order is not concerned with the legality or otherwise of the applicant's conduct. The court would be called upon to determine whether one was in a peaceful and undisturbed possession and whether he was dispossessed unlawfully.

The situation that confronted the court a quo was adequately dealt with in a recent decision of this Court, viz, Minister of Mines and Mining Development and 2 Others v Grandwell Holdings (Private) Limited and 2 Others SC34-18 which reaffirmed the requirements for spoliation.

The case which was placed before the court a quo was by way of an urgent chamber application which sought to have the status quo ante of the parties restored after the applicant had been evicted from its mining activities without due process on 22 February 2016. The judgment of the court a quo completely ignored dealing with the issue to do with spoliation and decided to deal with the application on the substantive issues between the parties, that is, on the existence or otherwise of the special grant which the applicant claimed to have.

In my view, it is doubtful if such issues could have been adequately determined in an urgent chamber application.

It does seem to me, as argued by counsel for the applicant that the dominant issue that the court ought to have dealt with was the issue of spoliation. It was a misdirection for the court not to deal with this issue and focus exclusively on the substantive rights of the parties which could have been dealt with on the return day.

It is precisely because of this that I believe that there are prospects of success in the intended appeal.

I accept there was tardiness on the part of the applicant as argued by counsel for the first respondent but the prospects of success on appeal has tilted the balance in favour of the applicant.

As observed by CHIDYAUSIKU J…, in the case of Lovemore Sango v Chairman of Public Service Commission and Anor:

“In deciding whether to condone the delay or not two factors are of paramount importance;

(a) Firstly, the period of the delay and the reasons for such a delay.

(b) Secondly, the prospects of success on the merits.”

In the result, I make the following order:

1. The application for condonation of non-compliance with Rule 38(1) of the Supreme Court Rules, 2018 be and is hereby granted.

2. The application for an extension of time to note the applicant's appeal be and is hereby granted.

3. The appeal is deemed noted in terms of the Notice of Appeal attached hereto from the date of this order.

4. Costs of this application shall be costs in the cause.

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe dated 14 July 2018 wherein an application for condonation for failure to file an application for leave to appeal in time was dismissed.

Briefly, the background to this matter is as follows:

The respondent was employed as an accountant by the appellant. He was charged with misconduct, that is, wilful disobedience of a lawful order given by the employer. The respondent was found guilty and his contract of employment was terminated.

The respondent then appealed to the Labour Court which upheld his appeal on 8 April 2016.

In terms of section 35 of S.I.59 of 2006 the appellant ought to have sought leave to appeal to this Court within 30 days from the date of the judgment of the Labour Court.

Having failed to observe the prescribed time limits the appellant sought condonation for the late noting of its application for leave to appeal before the Labour Court.

In deciding the application for condonation, the Labour Court concluded that the appellant had not been candid with the court on its explanation for the delay. The court held that it was unnecessary for it to deal with the other principles applicable in applications for condonation. The court proceeded to dismiss the application for condonation before it with costs.

It is this finding of the court a quo which has led to this appeal.

The appellant, having obtained leave to appeal to this Court on 24 November 2017, noted this appeal on the grounds stated hereunder:

“1. The Labour Court erred in law in its refusal of the application for condonation for failure to comply with the Rules on the basis that there were 'no compelling circumstances which justified a finding in Applicant's favour', when such is not the test applicable in an application such as the one which was before the court.

2. The Labour Court erred in law, in finding that it was unnecessary to consider all the principles applicable in an application such as the one that was before it, with the result that the court did not consider all the other factors which weighed heavily in favour of the application being granted.”

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in dismissing the application for condonation.

THE LAW

The issue that arises from these grounds of appeal is whether the test applicable in matters for condonation was properly applied to the facts of this present matter by the court a quo.

The requirements for condonation have been set out in a plethora of cases, including the case of Bessie Maheya v Independent Africa Church SC58-07. In that case, the court stated the following:

“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.”…,.

A reading of the record shows that the court a quo took into account one of the requirements to be considered in an application for condonation. Consequently, the enquiry that the court a quo made was inconclusive.

The court only considered the extent of the delay and ended there. It did not have regard to the other considerations for the granting of condonation. This is apparent from the judgment of the court a quo where the learned judge concluded her judgment by stating:

“I am convinced that this is a case in which the sins of the legal practitioner are visited on the client. I therefore do not consider it necessary to deal with whether or not other principles applicable in condonation are favourable to applicant.”…,.

Issues to do with the prospects of success on appeal, the importance of the case, the respondent's interests in the finality of the judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice were completely brushed aside by the court a quo. See Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

The finding that the explanation for the delay was unreasonable became the basis for the court a quo's justification in not considering the other factors that ought to be taken into account in condoning a party who is in breach of the Rules.

With this finding, the court a quo resorted to visiting the sins of the legal practitioners on the client and dismissed the application for condonation.

In light of the above, counsel for the appellant argued that as the court a quo had failed to consider all the requirements for condonation, cumulatively, the appeal had to be allowed.

Per contra, counsel for the respondent contended that the court a quo had power to exercise its discretion in such matters even without considering all the laid down requirements. He further argued that this could be done without taking into account the merits of the matter hence the appeal lacked merit.

I do not agree with this proposition of the law.

It was incumbent upon the court a quo to deal with all the considerations in the determination of the application for condonation. Failure to do so was a misdirection on the part of the court. It ought to have first applied the laid down principles to the facts of the case before proceeding to justify the stance it took in opting to dismiss the application for condonation.

In the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A)…, the principles of the law are re-stated as follows:

“It is well established that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that, in essence, it is a question of fairness to both sides.

In this enquiry, relevant considerations may include the degree of non compliance with the Rules, the explanation therefor, the prospects of success…, (on the merits), the importance of the case, the respondent's interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation may help compensate for prospects of success which are not strong.”…,.

Condonation remains a sole discretion of the court, which discretion has to be exercised judicially upon a consideration of all facts, at all times with a view of doing justice between man and man.

A reading of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A) shows that such exercise of discretion must be done after a consideration of all the relevant factors.

The case of Ngirazi v Saurosi & Anor HB84-18 exhibits how the courts weigh the factors one against the other in granting condonation. It was stated as follows:

“It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance.

As stated by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O. 1966 RLR 60 (AD)…,;

'.., the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be before the delay will be condoned; and the converse must of course be equally true; the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.'”

See also Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,.

It is apparent from the above cases that all the laid down factors ought to be taken into account when dealing with an application for condonation.

This was not done in the application a quo.

Instead of individually dealing with these factors, and weighing them one against the other, the court a quo opted to deal with only the explanation for the delay.

This was a misdirection on the part of the court a quo.

In the case of Tshova Mubaiwa Transport Co-Operative Limited and Ors v Mpofu and Ors HB167-04, it was further stated that;

“While these courts have on many occasions held that a litigant chooses his legal representative and it is through that choice that he should either succeed or fail in that litigation. However, this approach should not be adopted as a cut and dry principle. Applicant's explanation, together with other factors supra, should also be considered…,. Therefore, to allow one party to find a way out of the problem through a technical fault will be a failure by these courts to do justice between man and man.”…,.

The court a quo failed to determine the issues that were before it. It failed to make a determination on whether or not the appellant had satisfied all the requirements for condonation. This was a serious mis-direction that warrants interference by this Court.

This is a case where a remittal of the matter to the court a quo for a consideration of all the requirements for condonation to be done. Those principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weaknesses or lack of merit in the other laid down principles.

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside.

3. The matter is remitted to the court a quo for consideration of the proper requirements for condonation.

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL
Ruled By: MATHONSI J

This is essentially an application for condonation of the late noting of an appeal against the judgment of the Magistrates Court sitting at Kwekwe handed down on 9 January 2013 in terms of which it ordered the applicant, as the executrix of the estate of her husband, the late David Nyirenda, to transfer House Number 544/3 Mbizo, Kwekwe to the first respondent.

The court made a finding that the said house had been sold by the deceased to the first respondent before he passed away on 27 June 2008.

The applicant, who had earlier on in 2009 been issued with a certificate of authority by the Additional Master to transfer the same house, surprisingly valued at $1,000, to her own name, was understandably gutted. She purported to file an appeal, but, in the wrong court, namely, the Magistrates Court in Kwekwe, on 21 February 2013. She says that when she tried to file the appeal in this court she was stopped dead in her tracks - the time within which to appeal having expired.

The applicant says, as a lay person, she was vexed by that sudden turn of events and sought assistance from “the Zimbabwe Human Rights Association who kept (her) documents for months” without acting on them. They later returned the documents to her without an explanation. At that stage she decided to report the matter to the police alleging forgery of her deceased husband's signature on the agreement of sale purportedly entered into between the deceased and the first respondent. She does not say what became of the police case. She however places the blame for failure to act timeously on the Zimbabwe Human Rights Association completely oblivious of the fact that she was already out of time to launch an appeal when she tried to do so in February 2013 and does not even begin to proffer any explanation for that initial delay.

In addition, she does not take the court into confidence as to when exactly she consulted that organization, the name of the lawyer she dealt with, and when she eventually got her documents back. Needless to say there has been no supporting affidavit from whoever was consulted at that organization confirming the delay.

Whatever the case, this application for condonation was only filed on 29 December 2014 - almost 2 years after the impugned judgment was handed down.

Regarding her prospects of success on appeal, the applicant asserts that those are very bright because the Agreement of Sale relied upon by the first respondent “appear(s) to have been forged” and her late husband never sold the house.

The fact that the applicant's papers are in shambles, with affidavits and other documents being filed all over the place and willy nilly without any regard to rules of procedure and without filing the record of proceedings in the Magistrates Court which are being contested, may be attributable to the fact that initially the applicant was a self-actor. However, there can be no justification whatsoever of the fact that the papers have been allowed to remain in that shambolic state throughout regard being had that the applicant's legal practitioners, who prosecuted the application, assumed agency on her behalf a long time before the matter was set down. Their notice of assumption of agency was filed on 3 March 2017 and they requested a set down of the matter on 20 February 2018.

There is also no justification whatsoever for their filing of heads of argument that do not address the issues to be determined. In fact, a tangent is taken in the heads of argument which address the appeal proper without attempting to deal with the issue of the delay. Mr Siziba, who appeared for the applicant instructed by Mhaka Attorneys, conceded that indeed the heads of argument, which were not prepared by himself of course, were not helpful at all. Unfortunately, Mr Siziba did not file his own heads of argument ahead of the set down.

In his opposing affidavit, the first respondent expressed reservations on the veracity of the applicant's story that she consulted lawyers who let her down because there is no confirmation from the said lawyers that such consultation ever took place. He stated that although a report was made to the police by the applicant, it yielded nothing. No explanation for the delay has been proffered in the entire application, which, in the first respondent's view, is an abuse of the process of the court.

Let me state from the onset that in motion proceedings an application stands or fails on its founding affidavit. If the founding affidavit does not make a case for the relief sought, it does not matter that the applicant files additional affidavits unprocedurally or attempts to make a case in the answering affidavit. The application will fail as no case would be made in the founding affidavit. See Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H)…,.

The founding affidavit does not explain why the applicant attempted to file an appeal in February 2013, well out of time; the judgment having been handed down on 9 January 2013.

Whenever a litigant realizes that he or she has not complied with a rule of court he or she should apply for condonation without delay. If the litigant does not do so, he or she should give an acceptable explanation, not only for the delay in the filing of the Notice of Appeal, but also the delay in seeking condonation. What calls for some acceptable explanation is not only the delay in noting the appeal but also the delay in seeking condonation. There are therefore two hurdles to overcome in an application of this nature. See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,.; Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A)…,.

As I have said, the applicant has not given any explanation as to why she found herself out of time to note an appeal. In addition, even the explanation for the delay of well over a year in bringing this application for condonation is, to say the least, tenuous indeed, premised as it is on the unsubstantiated blame on an organization called Zimbabwe Human Rights Association whose existence is as obscure as the story itself.

It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance. As stated by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O. 1966 RLR 60 (AD)…,;

“…, the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be before the delay will be condoned and the converse must of course be equally true; the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.”

See also Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,; Khumalo v Mandeya and Another 2008 (2) ZLR 203 (S)…,; Musemburi and Another v Tshuma 2013 (1) ZLR 526 (S).

In the present matter, the application fails on both fronts.

The explanations for the two delays, that is in noting the appeal and in bringing this application for condonation, the latter one being quite inordinate indeed, are extremely pathetic if not non-existent at all.

On the prospects of success, the application is also very poor.

I say so because the applicant appears intent on appealing the decision of the court a quo merely on the basis of a suspicion. In her own words she seeks to challenge the sale agreement between her late husband and the applicant because it “appear(s) to have been forged.” In my view, that is not enough.

If the applicant was unable to establish the forgery, not only at the trial, but also to the police where she reported it, surely she cannot establish it on appeal. This is so because it is trite that an appeal is determined on the four corners of the appeal record. If the evidence of forgery was not submitted to the court of first instance, it will still not be there on appeal. In fact, Mr Siziba conceded that, without leading fresh evidence, the applicant cannot prove forgery.

The grant of condonation involves the exercise of judicial discretion, which the court is required to exercise judiciously of course. The court cannot condone a delay where it is apparent that there will be no success at all merely to baby sit a litigant's ego. That would be an injudicious exercise of discretion. I am therefore unable to grant condonation in this matter.

In the result, the application is hereby dismissed with costs.

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.

I heard the application on 10 February 2017 and dismissed it with costs, giving reasons ex tempore, in the presence of the applicant, for lack of urgency and locus standi by the applicant.

On 22 May 2017, three and a half months later, the applicant wrote to the Registrar requesting the reasons for my decision, which I render hereunder.

The Facts

Stand 107 of Salisbury Township belonged to the late Sushila Natverlal Naik whose estate was duly registered on 9 May 2016 and administered under the Master's supervision to its final conclusion; (Letters of Administration issued to the deceased's son, Joytindra Natverlal Naik, dated 22 June 2016, refer). As part of the finalisation of the administration of the estate, the property was disposed of to the first defendant on 21 July 2016.

Upon finalisation of the administration of the estate, and the disposal of the estate property, three months' notice was properly given to the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, to vacate the property in favour of the new owner.

Upon failure of the occupants to vacate, the matter went before the Magistrates Court which granted an order of eviction on 3 February 2017.

Prior to her death, the deceased had leased the property for five years, commencing 1 November 1999 to 31 October 2004, to Goldpack Investments (Pvt) Ltd. The terms of the lease agreement did not allow for subletting or cession without the deceased's consent.

Contrary to the lease agreement, and subsequent to the deceased's death, Goldpack Investments (Pvt) Ltd “ceded” its rights to a company called Clintvest Investments (Pvt) Ltd. While the directors of the two companies were the same, the companies were, and are, separate legal entities.

Clintvest Investments (Pvt) Ltd subsequently allegedly sublet to several flea market stall-holders as is apparent from Magistrates Court Case No. 41044/2016. The applicant's name is not included as one of the stall holders in that matter though he swore an affidavit on their behalf - the basis of which is unclear. Nothing on the record, or in previous litigation, supports that the applicant was also a stallholder and subtenant of Clintvest Investments (Pvt) Ltd.

The applicant instituted the present application on his own behalf as appears from his founding and “supplementary founding affidavit” (sic). However, he purports to speak for other subtenants without laying the basis for doing so.

When the parties appeared before me, on 9 February 2017, I noted challenges with the draft order which the applicant sought; the interim order of which was to the effect that pending the determination of the urgent application before me, execution of any judgment of a Magistrate Court seeking his eviction be stayed in circumstances where the applicant had already been evicted.

Further, I could not grant any order pending the determination of the very application before me.

In addition, the final order sought continued peaceful occupation pending the determination of his application for a declaratory order that the sale of the property was invalid – when the applicant was no longer in occupation.

I also noted that the applicant had not properly laid the basis for seeking that the matter be heard on an urgent basis or established his locus standi to bring the application.

With the consent of the first respondent, I therefore directed the applicant to attend to his draft order to seek reinstatement of occupation and stay of any further execution thereafter.

In addition, I granted the applicant the indulgence, if necessary, to file a supplementary affidavit regarding;

(1) This change in the draft order.

(2) To traverse the issue of urgency, the requirements of which were explained to him; and

(3) To establish his locus standi after which the first respondent could file its opposing affidavit.

On the next hearing date, on 10 February 2017, the applicant submitted a supplementary founding affidavit which was effectively a new application for an interdict, bringing up new issues rather than reinstatement of occupation and stay of further execution contrary to the directions of the court.

Being mindful of the fact that the applicant was a self-actor, I however allowed the parties to make submissions on urgency and locus.

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

This is a Chamber application for dismissal of the respondent's application in case number HC2718/13. The application has been initiated in terms of Order 32 Rule 236(3)(b) on the grounds that the respondent has failed to file an answering affidavit or heads of argument within the time stipulated by the Rules.

The parties appeared before me on 2 March 2015. The respondent was in default. His wife attended the proceedings and indicated that her husband was not well and in hospital. I pointed out that the respondent had, on numerous occasions, failed to attend court and deliberately sent his wife to court, causing delays in the finalization of this matter.

The respondent's wife, who appeared to be well acquainted with the details of the matter, put up an argument in response to the application before the court.

I granted the application prayed for and indicated that my reasons would follow. These are my reasons.

Background

The dispute in this matter revolves around the right, title, and interest in a property known as Stand 5671 Mkhosana Township, Victoria Falls. The applicant and the respondent both claim that they own the right, title, and interest in the same property.

On 10 September 2010, the respondent filed a court application under case number HC1805/10 claiming, inter alia, the transfer of right, title, and interest over Stand 5671 Mkhosana Township, Victoria Falls into his names. That court application was improperly served and the applicant did not become aware of its contents until a later date. Meanwhile, the respondent's legal practitioners had set the matter down on the unopposed roll and obtained a default judgment against the applicant. Subsequently, and upon becoming aware of the application and the order obtained in default, the applicant filed an application for rescission of judgment under case number HC480/11. That application for rescission of judgment was opposed by the respondent who failed or neglected to file his heads of argument timeously. Pursuant to an order of this court, the matter was set down on the unopposed roll and an order for rescission of judgment was granted in default.

The default judgment granted to the respondent, under case number HC1805/10, having been rescinded, the applicant was required to file fresh opposing papers in case number HC1805/10 within five days of the granting of the order. The applicant complied and filed such papers on 16 October 2012. Following the service of the applicant's opposing papers upon him, the respondent failed to file an answering affidavit and failed to set the matter down despite being called upon to do so. Consequently, the applicant made an application, in terms of Order 32 Rule 236(3)(b), to have the applicant's application in case number 1805/10 dismissed with costs.

The respondent failed to oppose that application, and, on 21 February 2013, this court granted an order dismissing the claim.

The respondent then made another application for rescission of the order dismissing his application under case number HC2817/13. Once again, the respondent failed to file an answering affidavit or set the matter down for hearing. This has led the applicant to launch this application for dismissal for want of prosecution.

Order 32 Rule 236(3), as amended by Statutory Instrument 80 of 2000, provides as follows:

“(3) Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 233; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on terms as he thinks fit.”

The applicant has elected to make this application for dismissal for want of prosecution.

These courts have adopted a very strict approach in matters where an applicant has failed to file his answering affidavit or set the matter down for hearing. The court usually looks at the reasons for failing to act timeously. Where failure to act is the result of an utter disregard of the Rules of the court and prescribed time limits, the courts are extremely reluctant to give any further indulgence to the defaulting party.

See the case of Moon v Moon HB94-05.

In the case of Ndlovu v Chigaazira HB104-05, the learned judge indicated that the reason why Rule 236 had to be enforced is to ensure that finality is brought to legal proceedings.

The circumstances of this matter clearly show that the respondent has a tendency to institute actions without pursuing them to their conclusion. The respondent has failed to file the necessary documents on three separate occasions. The respondent's conduct is merely dilatory and he is well aware that delaying the matter may be in his best interests. He has no intention of prosecuting his actions to completion.

I note that, in his opposing papers, the respondent has not tendered any reasonable explanation as to why he delayed in the filing of his answering affidavit or why he has failed to set the matter down for hearing.

The respondent's opposing papers do not assist him in anyway.

The respondent cannot raise a defence that he is a self actor and therefore ignorant of the provisions of the Rules. The respondent elected to act as a self-actor in this matter. If a person elects to act as a self actor, then, he is bound by any procedural errors he may make in the prosecution of his claims.

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

(ii) Whether the second and sixth respondents are barred by their failure to file Heads of Argument timeouslyWhen the parties appeared before me, the applicant's legal practitioner moved that the second and sixth respondents be barred from proceeding to argue the merits of the matter due to their failure to ...

(ii) Whether the second and sixth respondents are barred by their failure to file Heads of Argument timeously

When the parties appeared before me, the applicant's legal practitioner moved that the second and sixth respondents be barred from proceeding to argue the merits of the matter due to their failure to file their Heads of Argument within the dies induciae stated in the Rules of this Court as per Order 32 Rule 238(2)(b) which reads as follows:

“(2a) Heads of Argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of sub rule (1):

Provided that;

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of sub-rule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

(2c) A legal practitioner shall not be precluded from making a submission…,.”

The applicant filed his heads with the Court on 19 November 2018, and the respondents' heads were filed on 19 January 2019. The reckoning of days would have been interrupted by the High Court Christmas vacation. The third Court term ended on 3 December 2018, which is the date that the respondent's Heads were due. The first Court term in 2019 commenced on 14 of January 2019. The respondents filed their Heads during the Court vacation on 10 January 2019. Thus, effectively, and in terms of the proviso under Order 32 Rule 238(2)(i) the delay in filing the respondent's heads was one day.

Even though the delay was for but a day, the second and the sixth respondents were automatically barred from appearing to argue the matter.

At the commencement of the hearing in this matter, the second and the sixth respondent's legal practitioner made an oral application for condonation and for the upliftment of the automatic bar imposed on them for the late filing of Heads of Argument.

I was drawn to the comments which were made by MAKARAU J…, (when I was researching this opinion) in Chimpondah & Anor v Muvami 2007 (2) ZLR 326, which I found to be of immeasurable assistance to me. In her dicta, she outlined the factors which are taken into account when a court is dealing with such an application. At page 327G–H she said:

“An application for condonation, such as the one before me, is, therefore, an application for excusing the negligence of the offending party and the degree of such negligence of the offending party then becomes a factor together with other factors that will ensure that at the end of the day justice as between the parties prevailed.

The factors, generally, are 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 merits of the application; and

(iii) Any prejudice to the interests of justice generally.”

At page 328E–F she continued;

“…,. I used the discretion vested in me to allow the late filing of the heads of argument because of the need for the parties to have a final judgment on the matter in view of the spate of litigation that they have already been involved in over the same matter. Further, in my view, the point raised by the respondent in his defence is an interesting and important legal point…,.

It is my further view that, when considering an application for condonation for the late observance of a rule of procedure before a default judgment is given in the matter, the court should lean towards granting rather than refusing such application. I am not, however, suggesting that prior to judgment, condonation should be granted for the mere asking. The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence.

Also, see Lewis Cox & Co (Pty) Ltd v Twentydales Service Station (Pty) Ltd 1956 R&N 338 (SR); Ehlers v Standard Chartered Bank Ltd 2000 (1) ZLR 136 (H).”

In the present matter, the Heads were but one day late.

I am persuaded that this is a case where the indulgence should be granted bearing in mind the issues which need to be ventilated and resolved in the interests of the public and in the interests of justice. It is, in my view, desirable that I apply my inherent jurisdiction in terms of Rule 4C of the High Court Rules, 1971 to grant the application for the upliftment of the bar, bearing in mind that the period of one day's delay brought to me assume that the delay was not an intentional disregard to defend; but was rather a lack of diligence by the legal practitioner representing the second and sixth respondents; for which I felt the respondents ought not to be penalised.

See Grain Marketing Board v Muchero SC59-07 and also Service Motor Supplies (1956) (Pty) Ltd v Fouche and Anor 1960 (3) SA…,.

Further, I find it necessary to allow the second and sixth respondents to defend their cases in order that there be a convenient determination of the issues in the matter.

See: Nicojeros v Clement 1947 (4) SA 301.

HB97-11 : NOREEN SIBANDA and BENSON SIYAWAREVA vs JULIUS MPOSELWA NDLOVU
Ruled By: MATHONSI J

Before dealing with the issue of the applicant's default, I propose to touch on the failure by the respondent's legal practitioners to file heads of argument timeously.

The applicants' heads of arguments were filed on 3 May 2011 and served on their opponents on 5 May 2011, as appears from the certificate of service filed of record.

That notwithstanding, the respondent's heads of argument were not filed until the day of hearing, being 27 June 2011. They should have been filed by close of business on 19 May 2011. This derives from the provisions of Order 32 Rule 238(2) of the High Court Rules; 1971 which read:

“(2) Where an application, exception or application to strike out has been set down for hearing in terms of subrule (2) of Rule 223 and any respondent is to be represented at the hearing by a legal practitioner, the legal practitioner shall file with the registrar, in accordance with subrule (2a), heads of argument clearly outlining the submissions relied upon by him and setting out the authorities, if any, which he intends to cite, and immediately thereafter he shall deliver a copy of the heads of argument to every other party.

(2a) Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after the heads of argument of the applicant or excipient, as the case may be, were delivered to the respondent in terms of subrule (1)…..,.

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”

There can never be a clearer provision of the Rules.

The respondent is represented by a legal practitioner and should have filed heads of argument as provided for in Rule 238(2). He is therefore barred in terms of subrule (2b) of that Rule.

Quite frequently, legal practitioners now pretend that rule on the filing of heads of argument does not exist and file heads of argument as and when they please. This cannot be allowed to continue. Although I agreed to hear counsel for the respondent in the interest of bringing about progress in this matter which has spiralled in one place for more than 4 years, this should not be construed as a licence to legal practitioners to flout the Rules with reckless abandon. The disregard of the Rules has now become fashionable. Legal practitioners should be reminded of the need for a strict adherence to the Rules.

This is a court governed by its own set of rules which shall forever remain sacrosanct.

HH32-14 : ZIMPLASTICS (PVT) LTD vs ROLLY CORBET
Ruled By: CHIGUMBA J

On 4 September 2013, under case number HC6406/13, the applicant obtained an order of this court, that case numbers HC11294/11 and HC4709/13 be consolidated and heard as one matter.

The respondent had filed an application for summary judgment under case number HC11294/11 to which the applicant had filed opposing papers. The respondent had filed heads of argument on 25 June 2012. The applicant filed its heads of argument on 23 July 2012, nineteen days after the stipulated period in terms of the rules of this court. Upon realizing its dilemma, the applicant made an application for upliftment of bar and condonation of late filing of heads of argument on 17 June 2013, under case number HC4709/13. The respondent opposed the application for condonation. On 30 June 2013, the respondent set down its application for summary judgment for hearing. The court ordered that the two matters be consolidated and heard as one. This court is now seized with the two applications. At the hearing of the matter, the court directed that the application for condonation be heard first, then proceeded to hear the application for summary judgment. The court indicated that, in determining the two applications, if it declined to grant condonation, the matter would end there.

The application for upliftment of bar and condonation, case number HC4709/13, was for the following relief:

1. The application for condonation of late filing of heads of argument and upliftment of bar be and is hereby granted.

2. The bar operating against Zimplastics (Pvt) Ltd be and is hereby uplifted.

3. A copy of the heads of argument attached to the application for condonation of late filing of heads of argument be and is hereby placed before the court as forming part of the record under case number HC11294/11.

4. Costs be in the cause.

It was premised on a founding affidavit duly sworn to by Portia Makurumure, the legal practitioner of record for the applicant. She stated that she was authorized to depose to the affidavit because the facts therein were within her personal knowledge to the best of her information and belief. She deposed to the fact that, on 24 June 2012, the respondent filed and served his heads of argument in the main application for summary judgment on the applicant's legal practitioners of record's law firm. She stated that she received the respondent's heads of argument, and drafted the applicant's heads of argument, which she unfortunately misfiled before they could be typed by her secretary, in a different file, due to the fact that her firm was handling numerous other files pertaining to the same parties. Ms Makurumure stated that she only realized her mistake when she attempted to prepare a certificate of service, when she had to search through all the files only to 'discover' that the heads of argument had not been typed, or filed, or served. She concedes her error, and accepts responsibility for the fact that her client's heads of argument were filed nineteen (19) days out of time. She avers that her explanation is not mala fide and that there was no willful disregard of, or, contempt of the rules of this court. Finally, the applicant avers that no prejudice would be suffered by the respondent if the bar operating against it were to be uplifted and the late filing of heads of argument condoned.

A further averment proffered on behalf of the applicant is that the application for summary judgment is a matter of extreme importance to it because it would suffer great financial prejudice in the sum of US$78,000= if it were to remain barred.

The applicant has already filed and served the required heads of argument on the respondent and they form part of the record of proceedings. The applicant invoked the proviso to Rule 238(2a) of the rules of this court on the basis that the heads of argument were filed and served five days before the set down date….,.

The court considered the submission made on behalf of the respondent that the explanation proffered on behalf of the applicant was not acceptable and that it was inadequate because it failed to comply with the legal requirements of an application for condonation; that there must not only be an acceptable explanation for failing to comply with the time limits but an acceptable explanation for failing to apply for condonation timeously. The respondent relied, as authority for this proposition, on the case of Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…, where the Supreme Court stated that:

“…,. What calls for some acceptable explanation, is not only the delay in noting an appeal and in lodging the record timeously but also the delay in seeking condonation.”

It is my view that the Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) case sought to be relied on by the respondent is distinguishable from the facts of this case for the reason that it dealt with a contravention of Order 9 Rule 63 of the rules of this court which sets out a calendar month as the time within which one can apply for rescission of judgment. This is materially different from Order 32 Rule 238(2a) whose proviso (ii) appears to give a respondent a second bite of the cherry by stipulating that the respondent ought to file its heads of argument within ten days of the date of service of the applicant's heads on it, or failing which, at least five (5) days before the date of hearing. The facts of Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) are also materially different from those under consideration because in that case the delay in seeking condonation was for a more considerable period.

The factors which the court should consider in determining an application for condonation are clearly set out in HERBSTEIN & VAN WINSEN's The Civil Practice of the Supreme Court of South Africa 4th ed by Van Winsen, Cilliers and Loots…, as follows:

"Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance…,. The court's power to grant relief should not be exercised arbitrarily and upon the mere asking but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation…, include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice."

See Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC).

Order 32 Rule 238(2a) of the High Court Rules 1971 provides that:

“(2a) Heads of Argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of subrule (1):

Provided that -

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.”

The applicant averred that it filed its heads of argument nineteen days after the respondent had served its own heads on it but at least five days before the hearing date. The applicant falls squarely within the ambit of proviso (ii) to Rule 238(2a). I do not find the applicant's nineteen day failure to comply with the rules of this court deliberate, willful, or mala fide. Similarly, the delay in seeking condonation was not occasioned by malice but by the correct belief that the applicant was exonerated by proviso (ii) to Rule 238(2a). There is no evidence of a deliberate flouting of the Rules. The explanation proffered shows evidence of some carelessness but I do not find it inadequate or insufficient. The respondent has not supplied the court with prima facie evidence of the prejudice that it is likely to suffer if condonation is granted, which nature of prejudice would not be remedied by an appropriate order as to costs.

For these reasons, the application for condonation of late filing of heads of argument is granted with costs remaining in the cause….,.

1. The application for condonation of late filing of heads of argument and upliftment of bar be and is hereby granted.

2. The bar operating against Zimplastics (Pvt) Ltd be and is hereby uplifted.

3. A copy of the heads of argument attached to the application for condonation of late filing of heads of argument be and is hereby placed before the court as forming part of the record under case number HC11294/11.

4. Costs be in the cause.

HHH32-15 : PREDOM INVESTMENTS (PVT) LIMITED and CHARLES KATEWERA and PARTSON JUNGWE vs THE STATE
Ruled By: BHUNU J and TAGU J

At the hearing of the appeal, counsel for the appellants applied that the respondent be barred from making submissions on the basis that the respondent had failed to file his heads of argument timeously.The respondent's heads were filed out of time and not in compliance with the Rules of this ...

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HH214-15 : NETONE CELLULAR (PVT) LTD vs BACNET TRADING (PVT) LTD and MINISTER OF LOCAL GOVERNMEMT, PUBLIC WORKS & NATIONAL HOUSING and REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

Counsel for the second respondent applied for condonation or the upliftment of the automatic bar operating against the second respondent for having filed the heads of argument some months out of time.

A formal court application to this effect had been filed on 15 August 2014. But it seems no further steps had been taken by any of the parties. The reason proffered for the delay was that the copy of the applicant's heads of argument that had been served at the offices of the Civil Division of the Attorney General, the second respondent's legal practitioners of record, had been mis-filed. The relevant averment in counsel for the second respondent's affidavit read as follows:

“4. This is an application for condonation for late filing of Heads of Argument. Applicants filed their Heads of Argument on 3 April 2014 and they were received by our office on the same day. I was not personally aware that Heads for the Applicants were already filed as there was some unfortunate incident of misfiling of documents by our office Clerks. It only came to light that the heads of Argument by the applicants were filed when I contacted 1st Respondent enquiring whether they had received anything from the Applicants.”…,.

Mr Machiridza, the legal practitioner that appeared for the first respondent, applied for a postponement on the basis that the legal practitioner of record for the first respondent had gone out of the country on an emergency. He himself professed to have no substantial knowledge of the case. He said the absent legal practitioner had become the fundi on land matters and that the interests of justice would be served by postponing the matter so that the first respondent would be represented by counsel of its choice….,.

Counsel for the applicant also pointed out that the first respondent's heads of argument had been filed way out of time. As such, the first respondent had been automatically barred. Therefore, Mr Machiridza had no right of audience on any aspect of the matter other than an application for the upliftment of the automatic bar. But no such application had been made….,.

With regards the second respondent, counsel for the applicant argued that no cogent reasons for the default had been given. No dates as to when, for example, counsel for the second respondent had become aware of the fact that the applicant's heads of argument had been filed, had been mentioned. Without them, the court could not possibly assess the extent or reasonableness of the delay. Furthermore, the argument continued, no affidavit by the filing clerk had been produced to explain what actually had happened.

Counsel for the applicant concluded that the merits of the case were overwhelmingly in support of the applicant's cause. The respondents' opposition had no merit. There were no prospects of success….,.

I dismissed the application for postponement and the one for the upliftment of the bar. I granted the orders sought by the applicant. These were my reasons.

In terms of Order 32 Rule 238 of the Rules of this Court, a respondent who is to be represented by a legal practitioner at the hearing of, inter alia, an application, is required to file heads of argument not more than ten days after the applicant's heads of argument are delivered to him. The failure to file such heads of argument results in the respondent being barred. The court can then deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

In terms of Order 12 Rule 84, a party that has been barred can make a chamber application or an oral application at the hearing, for the removal of the bar. The judge or court may allow the application on such terms as to costs and otherwise as he or it may think fit.

Just as in an application for rescission of judgment in terms of Order 9 Rule 63, a party seeking the removal of a bar must show “good and sufficient” cause for the bar to be removed. The court or judge hearing the application undoubtedly has an unfettered discretion. The discretion is, of course, exercised judiciously and not capriciously or whimsically. Not only must there be a reasonable explanation for the default but also the applicant must show his defence on the merits.

Dealing with Rule 84, GARWE JA stated as follows in Grain Marketing Board v Martin Muchero 2008 (1) ZLR 216 (S)…,:

“It is clear from the above provisions that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before the court for the upliftment of the bar. It is also clear that, in making the application to uplift the bar, the party that has been barred can either file a chamber (not court) application to uplift the bar, or, where that has not been done, the party can make an oral application at the hearing. The practice in the High Court, so far as I am aware, is that only in very few instances have oral applications to uplift the bar been entertained by the court. This is because, in such a case, the applicant must explain the reason for the delay, and, thereafter, convince the court that he has a bona fide defence on the merits.”…,.

What constitutes wilful default and a bona fide defence depend on the merits of each case.

In Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 (SC) McNALLY JA, held that wilful default occurred when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter. See also Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp 1997 (2) ZLR 47 (HC).

In my view, in bar situations, wilful default amounts to a deliberate failure or neglect to file process timeously or to refrain from doing so altogether. Thus, “good and sufficient” cause is the sum total of all the facts explaining the default and merits of the defence. These facts are considered cumulatively. No single aspect is decisive. In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp 1997 (2) ZLR 47 (HC), even though the court found that the explanation for the default was acceptable, it was far outweighed by the unreasonableness of the defence proffered on the merits….,.

I…, found no merit in their explanations for the delay in filing the heads of argument timeously….,.

With regards the second respondent, the explanation for the default was deficient. In the absence of the relevant dates there was no telling the extent of the default. Furthermore, how the alleged mis-filing of the applicant's heads of argument had occurred was not properly explained, particularly in the absence of an affidavit or affidavits from the filing clerks.

In this case, the defence proffered by the first and second respondents was palpably bogus. That is what largely influenced my decision to reject their applications and to grant the relief sought by the applicant. But, even the explanations for the delays were deficient….,.

It was for those reasons that I granted the orders that I did.

HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD
Ruled By: CHITAPI J

From a jurisprudential perspective, Rules of Court relate to the practice of the court. Courts are created to dispense justice. Rules of court should yield to the demands of justice in any given case hence the existence of Rule 4C of the rules of this court. Rules of court must ...

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

This is an application for reinstatement of an appeal in terms of Rule 34(5) of the Supreme Court Rules, 1964.

The brief facts giving rise to the application are that the applicant employed the respondent as its clerical officer.

Sometime in October 2011, the respondent received and receipted a total amount of US$34,247 in the course of duty. The money went missing and the respondent was charged with failure to remit the receipted money for banking. The prime suspect for the missing money was the respondent's supervisor who also went missing soon after the money disappeared.

Consequently, the Disciplinary Committee charged and dismissed the respondent from employment in connection with the missing money. The Committee found that the respondent was at fault in that there was no evidence that he handed over the missing money to his supervisor, Mr Manyere, because the supervisor had not signed acknowledging receipt of the money.

As the respondent was dissatisfied with his dismissal from employment, the matter was subsequently referred to the arbitrator. The arbitrator ruled in favour of the appellant and confirmed the dismissal.

Aggrieved by the arbitrator's award, the respondent successfully appealed to the Labour Court. In an order dated 25 October 2013 it determined that the respondent's dismissal was unlawful and proceeded to make the following order:

“1. The appeal be and is hereby upheld.

2. The respondent is ordered to reinstate the appellant without any loss of salary or benefits from the date of unlawful dismissal.

If re-instatement is no longer an option, the parties may agree on the quantum of damages in lieu of reinstatement. In the event that parties fail to agree on the amount of damages, either party can approach this Court for quantification of damages.

There is no order as to costs.”

Dissatisfied by the above order, the applicant sought, and was granted, leave to appeal to this Court on 9 July 2014.

By the time the applicant obtained leave to appeal the time within which it was obliged to file its appeal had already expired, thereby necessitating an application for condonation of late noting of appeal. The application for condonation was granted by this Court on 18 June 2015. The order reads:

“IT IS ORDERED THAT:

1. The condonation of late noting of appeal and extension of time within which to appeal be and is hereby granted.

2. The notice of appeal dated 12 December 2014 shall be deemed to have been filed on the date of this order.

3. There shall be no order as to costs.”

Following the granting of the above order, on 10 August 2017, the Registrar of the Labour Court issued a notice for the applicant to pay US$120 within five (5) days of receipt of the notification letter in terms of Rule 34(1); being costs for the preparation of the record of proceedings. The notice was served on the applicant on 16 August 2017.

The applicant defaulted in making the required payment within the prescribed five (5) days' period; whereupon, the Registrar wrote to the applicant's legal practitioners, on 23 November, advising that the appeal was deemed to have lapsed. The letter reads:

“RE: CITY OF HARARE V CHIKANDA

Reference is made to the notice of appeal you filed on 27 March 2017.

It is noted that you did not make any arrangements for the preparation of the record within the time specified in sub rule (1) of Rule 34 of the Supreme Court Rules, 1964.

In terms of sub-rule (5) of Rule 34 of the aforementioned rule, the appeal is deemed to have lapsed.”

In terms of Rule 34(5), the applicant can only be granted relief by a judge of this Court upon proof of good cause for non-compliance.

The sole issue for determination on the merits is whether or not the applicant has shown good cause for the admitted disdain of the Rules....,.

Turning to the merits of the application, the applicant has, in effect, proffered one reason for its non-compliance with Rule 34(5). Its reason for failure to pay for the preparation of the record of proceedings is that, being a large organisation, it is overwhelmed with cases of litigation such that omissions and errors of this kind are bound to happen.

In his founding affidavit, Hosia Chisango, the applicant's Acting Town Clerk, deposed, at paragraph 18, that the notification for payment was received on time and forwarded to the Finance department. Payment was however not done, in error, owing to overwhelming litigation workload. At paragraph 19 this is what he had to say:

“19. I have discovered, after enquiring from the relevant official, that because of the numerous similar payments that were being made around the same time this payment was mistakenly omitted. It was only after the notice dismissing the appeal was served that verifications with the records were done and it became apparent that this payment, and a few others, had been omitted.

20. I must hasten to state that, because of the size of the applicant organisation, it is currently struggling to cope with litigation costs. The applicant, by virtue of its size, is naturally involved in a lot of litigation. This means that, on a daily basis, either we are paying costs for the serving of notices of set down or we are paying costs to issue court process, or we are paying costs of preparation of records or we are paying Sheriff's costs of serving process. In the end, some payments are omitted.

21. Quite, unfortunately, the time frames that are required for us to be paying these litigation costs are too short and very often we are struggling to meet them.”…,.

The long and short of it all is that the applicant is saying, owing to its huge size and enormous amount of litigation it is unable to comply with the Rules of Court. Paragraphs 19 to 21 of its founding affidavit however tell a totally different story. They disclose a woeful lack of diligence and disgraceful dereliction of duty on the part of the respondent, its officials, and legal practitioners.

It is clear, from the founding affidavit, that after lodging the claim for payment with the finance department no one made a follow up to check whether payment had been effected within the prescribed period. No follow up was made despite knowledge that the payment could be omitted in error. Blaming the volume of work is just a red herring meant to cast wool over the judge's eyes.

Both the applicant's officials, and its lawyers, were reckless in their handling of the appeal. They cannot be allowed to hide behind the volume of work as if they are the only big organisation involved in enormous amounts of litigation.

What immediately comes to mind is the Attorney General's office that has to handle litigation for the entire Government and other City Councils that operate more or less in the same manner as the applicant.

The averment made by the Acting Town Clerk, to the effect that the appellant was hampered in its endeavour to effect payment timeously by an overwhelming amount of litigation, is uncorroborated hearsay not supported by the officers and the legal practitioner concerned.

No weight can therefore be given to the Acting Town Clerk's averments in this respect in the absence of any supporting affidavits from the officers concerned.

For that reason, the applicant's claim, that the failure to pay was not deliberate, sounds hollow and unconvincing because recklessness is tantamount to intention. See Rosenthal v Marks 1944 TPD 172…, where the court said:

“Gross negligence (culpa lata crussa) connotes recklessness, an entire failure to give consideration to the consequences of his action, a total disregard of duty.”

The appellant, and its legal practitioners' maltreatment of the appeal fits the respondent's averment that “the applicant has not taken diligent and determined steps to prosecute the appeal.”

This matter dates back to 2011. Since then, the proceedings have been a charade of deleteriousness and applications for indulgency from the court by the applicant. A perusal of the record of proceedings shows that:

1. On 5 March 2014, the applicant was granted a consent order condoning late filing of an application for leave to appeal to the Supreme Court.

2. Having been granted leave to appeal, the applicant again defaulted in lodging the appeal with this Court timeously.

3. The applicant then filed a defective application for condonation of late noting of appeal and extension of time to appeal. The matter was struck off the roll.

4. The applicant then lodged another application for condonation and extension of time which was granted on January 2015.

5. There is another order of this Court showing that on 18 June 2015 this Court again granted the appellant another order for condonation of late noting of appeal and extension of time within which to appeal.

The appellant's deplorable prosecution of this appeal gives the court the impression that the appeal has been lodged for the sole purpose of buying time. This notion is compounded by the fact that the court a quo made an unassailable factual finding that the applicant was not to blame for the theft of the money. At p6 of the cyclostyled judgment, this is what the learned judge had to say:

“I believe the probabilities of this case are that the appellant (Amos Chikwanha) did his part; money was handed over to Manyere. Whether it was deposited in the safe or not is another issue. Appellant did his part. There was no way he could have forced his superior to sign.”

That finding of fact is incontrovertible as it is consistent with undisputed evidence that after being handed over the cash by the respondent, Manyere disappeared together with the money. After his disappearance with the money, the respondent was allowed to work for seven months without charge. Considering the well-known dictum in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, the appellant's prospects of success on appeal are virtually non-existent, considering that there is nothing irrational about the court a quo's findings of fact.

For the foregoing reasons, the application cannot succeed. Costs follow the result.

It is accordingly ordered that the application for reinstatement of appeal be and is hereby dismissed with costs.

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].

In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).

The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.

The Background

The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.

The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).

The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).

The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.

The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.

The third and fourth charges pertain to alleged exchange control violations.

The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.

Magistrates Court and High Court Proceedings

In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.

The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.

Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.

The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.

High Court Judgment on Review

In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:

(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.

(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.

(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.

(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.

(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.

(vi) Wicknell Munodaani Chivayo (Chivayo) merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.

(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd, the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.

(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.

The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu. He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted.

Preliminary Objections

As already stated, the applicant seeks leave to appeal against the judgment of the High Court in terms of section 44(6) of the High Court Act.

His intended appeal is premised on points of law and on the averment that the court acquitted the respondents on a view of the facts which could not reasonably be entertained.

Initially, the respondents raised several preliminary objections to the application relating, inter alia, to the failure to cite the learned magistrate a quo as a party and to the form and content of the of the notice of motion instituting the application as well as the content of the founding affidavit accompanying the application. The respondents consequently sought the dismissal of the application with costs on a legal practitioner and client scale. Subsequently, at the first hearing of the matter, on 17 April 2019, it was noted that the applicant's heads of argument were singularly deficient as to both form and content and that the respondents' heads of argument did not address the merits of the matter at all.

It was accordingly ordered, by consent, that the matter be postponed and that both parties should file fresh heads of argument. Thereafter, through Case No. SC253/19, the applicant sought condonation of his failure to comply with the Rules and leave to file a corrected notice of motion in Case No. SC177/19.

Again, the respondents, through their notice of opposition, raised several preliminary objections of a procedural nature and prayed that the application be struck off the roll with costs.

The respondents took the position that both applications remained fatally defective and that the applicant should abandon both and commence entirely new proceedings.

Thereafter, at the second hearing of both matters, on 8 May 2019, the parties agreed to proceed with the main application on condition that the applicant would meet the costs of the subsidiary application. It was consequently ordered, by consent, that the application for condonation and leave to file an amended notice of motion under Case No. SC253/19 be granted and that the applicant should pay the costs of that application on the ordinary scale by 31 May 2019, failing which the respondents were given leave to proceed against the applicant by way of proceedings for contempt of court.

As regards the main application in Case No. SC177/19, the respondents persisted with their position that the learned magistrate was the primary respondent in the review application before the High Court, and, having been properly cited in that matter, he should therefore also be cited in the application for leave to appeal against the judgment of that court.

Counsel for the applicant eventually deferred to this position and it was ordered, by consent, that the learned magistrate be joined as the third respondent and that the matter be further postponed to be heard on the merits on 15 May 2019.

HB147-18 : MARTIN JONGWE vs NATIONAL FOODS LTD and LABOUR COURT (BULAWAYO - HON KABASA)
Ruled By: MATHONSI J

The applicant is not a stranger to the courts at all.

In fact, for a period spurning more than eight (8) years he has been a constant visitor either to the Labour Court in Bulawayo, where he has a rich record of cross reference files dating back to 2010, or this court, where he first made an approach in 2016.

In the present application, which he filed in this court on 4 October 2017, the applicant seeks condonation of the late filing of a review application which he intends to launch against the judgment of the Labour Court, per KABASA J, handed down on 22 May 2015 - some two years and five months earlier.

What can be gleaned from the papers placed before me is that the applicant had a labour dispute with his employer, the first respondent, as far back as 2005 when an attempt was made to transfer him from Bulawayo to Harare. He managed to obtain an order of the Labour Court, granted on 1 November 2010, per MOYA-MATSHANGA J, interdicting his transfer to Harare pending proper consultation and clarification of issues he had raised. That provisional order was later confirmed by the same judge on 25 February 2010, but, only to the extent that transfer to Harare was stopped.

Apparently, at some stage, the labour dispute was referred to an arbitrator in terms of the Labour Act [Chapter 28:01]. The arbitrator issued an award which was not appealed against and remains extant to this day. The applicant must have been unhappy with the outcome of proceedings before the arbitrator but did not contest it. Instead, he decided to make a direct approach to the Labour Court seeking relief which KABASA J described as “novel in nature.”

The applicant had sought an order to the effect that a case of his constructive dismissal had been established, that he receives compensation and damages in line with the proposed terms of separation, being direct and indirect loss, that the notice period follow determination under the preparatory ruling LC/MT/URA/77/10 relying on the inviolable exemption clause and that the arbitration award of Hon. M Mpango, on leave conditions at National Foods Ltd, be substituted with the conditions under Statutory Instrument 41/98.

The Labour Court must have had serious challenges trying to decipher what the applicant sought from that court. The relief sought was meaningless in the extreme.

When moving his application, the applicant had argued that his was not an appeal from a decision of the arbitrator but a direct application in terms of section 89(2)(d) of the Labour Act.

The respondent contested the application on the ground that the applicant could not approach that court in terms of that provision because that section envisaged the existence of an application in terms of section 93(7)(1) of the Labour Act.

That provision relates to a case where a Labour Officer has either issued a Certificate of No Settlement, but, for some reason, it is not possible to refer the dispute or unfair labour practice to compulsory arbitration, or the Labour Officer has refused to issue a Certificate of No Settlement, in which event the Labour Court may, on application, dispose of the matter in terms of section 89(2)(b) of the Labour Act.

The court upheld the point in limine taken by the respondent, and, in a judgment delivered on 22 May 2015, it dismissed the application.

The dismissal triggered a chain of events, as the applicant fought tenaciously to overturn that judgment, which culminated in this application for condonation.

First, the applicant launched an application for leave to appeal that judgment to the Supreme Court. The application was filed on 29 June 2015. He pursued it all the way even though it was apparently defective. By judgment handed down on 30 November 2015, per KABASA J, the Labour Court struck the application off the roll with costs by reason that it was defective for want of form.

Having come unstuck with his intended appeal, the applicant changed horses in midstream.

He filed an application for review in this court on 28 January 2016 in HC216/16 - more than eight (8) months after the judgment of the Labour Court sought to be brought on review was handed down. The review application was hopelessly out of time given that in terms of Rule 259 of this court's rules an application for review shall be instituted within eight weeks of the termination of the proceedings.

Again, the applicant vigorously pursued that irregular application all the way to the date of set down which was 21 September 2017. It was argued before MAKONESE J who promptly ruled that it was improperly before the court as it was filed out of time and struck it off the roll.

Still, the applicant would not capitulate.

On 4 October 2017, he filed the present application for condonation of the late filing of a review application still pursuing a review of the Labour Court's judgment handed down on 22 May 2015, never mind that his latest effort was coming two years five months after the judgment. That is quite an inordinate delay calling for a very satisfactory explanation if the court were to countenance the grant of condonation.

In his founding affidavit, the applicant stated that he was indeed aware that the Rules require that an application for review be made within eight weeks, but, the matter was initially an appeal and not a review application. He stated further that he had to turn to review when his application for leave to appeal was unsuccessful.

The applicant appears to blame that on the Labour Court although he does concede that his failure to seek condonation following the termination of his application for leave to appeal, on 30 November 2015, was owing to his “misunderstanding of the Rules.”

Thereafter, the applicant's story becomes muddled and confused.

He takes us on a journey of his trials and tribulations in the Labour Court, even before the judgment sought to be impugned was handed down, blaming everything that went wrong on the Labour Court.

Regarding the merits of the review itself, he stated, in paragraph 14 of his founding affidavit:

“14. The procedure adopted by the 2nd respondent, to threaten a negative result anterior to hearings is reviewable on basis of explicit bias.

The failure to deal with a preliminary point, on two consecutive times, is an irregularity that renders the eventual outcome incompetent. There was no legal basis of refusing jurisdiction under section 89(2)(d) of Act and it was irregular to refuse jurisdiction and request domestic remedies having already granted application and invited merits. The procedure adopted by the court a quo, to take a preliminary point repeatedly and to change course of hearings without substantive application, is not provided for in the Rules…,.”

There is a regrettable habit among Zimbabweans, especially self- actors, which the above passage betrays, that if you compile a list of words and arrange them into long-winding sentences, even if they are unrelated, then, somehow, the group will, merely by proximity, translate into something meaningful and that a valid point will just emerge on its own.

I say so because not only is the foregoing passage meaningless, it also does not commend the applicant's case as meritable at all.

What the Labour Court did, in the judgment sought to be taken on review, was to hold that there was no legal foundation for the applicant to make an application to it seeking an order, inter alia, that he had been constructively dismissed from employment and awarding him damages.

The applicant had advanced the argument that he was entitled to have direct access to that court in terms of section 89(2)(d) of the Labour Act.

It is important to consider that the labour dispute, or is it unfair labour practice, had previously been referred to and adjudicated upon by an arbitrator. The applicant was unhappy with the arbitral award but did not contest it.

In terms of section 98(10) of the Labour Act [Chapter 28:01]:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

The applicant missed the train when he did not note an appeal and then sought to make a direct approach, ostensibly in terms of section 89(2)(d) of the Labour Act.

That section provides:

“(2) In the exercise of its functions, the Labour Court may, in the case of an application other than one referred to in paragraph (b) or (c), or a reference, make such determination or order or exercise such powers as may be provided for in the appropriate provisions of the Act.”

The court ruled that, as the applicant was raising an unfair labour practice, his case was already provided for in section 93 of the Labour Act and he was required to seek redress through conciliation by a labour officer. If that failed the matter had to be referred to arbitration, and, if unhappy with arbitration, he would appeal to the Labour Court in terms of section 98(10) of the Labour Act. It decided that, procedurally, it was incompetent for the applicant to make an approach to it the way he had done.

In my view, that reasoning is sound.

That then brings me to what the court has regards to an application for condonation.

The position of the law is that whenever a litigant realizes that he or she has not complied with a rule of court he or she must apply for condonation without delay. If the litigant does not do so, he or she is required to give an acceptable explanation, not only for the delay in the filing of the application, but also for the delay in seeking condonation. What calls for some acceptable explanation is not only the delay in the application but also the delay in seeking condonation meaning that there are two hurdles to be overcome in such an application; see Ngirazi v Saurosi and Another HB84-18; Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,; Salooje and Another NNO v Minister of Community Development 1965 (2) SA 135 (A)…,.

The applicant's explanation for the failure to file a review application within eight weeks is that, although he was indeed aware of the eight weeks requirement, he had to first try his luck at seeking leave to appeal. When that failed he had to fall back on a review application. After that he misunderstood the rules.

In my view, that is not an acceptable explanation at all.

Condonation is not granted, and, is indeed, not available because a party has failed in his or her pursuit of another remedy and because he or she would not want to accept his fate he or she would rather try luck elsewhere.

Apart from that, the applicant has not explained the delay in seeking condonation itself. To the extent that he says he was aware of the dies induciae of eight weeks he then has to give an acceptable explanation as to why he took years to approach the court seeking condonation. This is a litigant who had to wait until his initial application was dismissed as being improperly before the court to seek condonation.

If that finding appears harsh to the applicant, then, I have to consider whether there is any merit in the proposed application itself.

This is because it is settled in our jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the application have to be very high before the court can exercise its discretion to condone the non-compliance. That is the point eloquently expressed by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O. 1966 RLR 60 (AD)…,:

“…, the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be, before the delay will be condoned; and the converse must of course be equally true, the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.”

See also Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,; Musemburi and Another v Tshuma 2013 (1) ZLR 526 (S).

I have stated that the decision by the Labour Court, to refuse the application on the procedural irregularity of the applicant's direct approach to it when the Labour Act requires the matter to commence by conciliation, was sound indeed. In fact this is a case which had not only be conciliated before it had also been arbitrated on. The applicant was therefore inviting the court to entertain the matter, not as an appeal, he having lost that opportunity when he did not appeal, but as a court of first instance.

It was untenable.

The Labour Court is a creature of statute and cannot do that which it is not empowered to do by the statute creating it.

I would refuse to condone the applicant's failure to comply with the Rules on those grounds....,. The applicant does not make a case for condonation. It has not merit.

In the result, the application is hereby dismissed with costs.

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

I am cognisant of the fact that the courts do not take lightly failure to comply with its Rules. In this regard, I associate myself with the views expressed by Honourable MAFUSIRE J in Ordar Housing Development Consortium v Sensene Ors HH709-15.

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

The first appellant, Firinne Trust, is a trust incorporated as such by Deed of Trust under the laws of Zimbabwe and registered with the Registrar of Deeds. It trades as Veritas, which is the second appellant herein.

The first respondent, is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution. Although it is established under the Constitution it carries out its mandate in terms of the Electoral Act [Chapter 2:13] the (“Act”).

The second respondent, the (“Minister”) is the Government official assigned the administration of the Electoral Act [Chapter 2:13]. The third respondent (“the Attorney-General”), is the legal adviser to the Government.

On 19 December 2017, under Case No. HC11749/17, Veritas filed an application with the High Court in which it sought a declaratur and ancillary relief pertaining to sections of the Electoral Act. The premise of the application was that the specified sections of the Electoral Act imposed restrictions on conducting voter education by persons other than the Zimbabwe Electoral Commission (ZEC) and political parties.

In this application, Veritas, on its own behalf and on behalf of the public in general sought an order declaring sections 40C(1)(g), 40C(1)(h), 40C(2) and 40F of the Electoral Act [Chapter 2:13] as being ultra vires sections 56, 61 and 67 of the Constitution; the allegation being that the impugned sections infringe the right of the public in general, and that of Veritas in particular, to equality and non-discrimination, freedom of expression, and their political rights, including the right to a free and fair election and to make political choices freely.

The Zimbabwe Electoral Commission (ZEC) opposed the application raising several points in limine relating to the citation of the applicant in the matter and the form of the application which it contended was not in accordance with the requirements of the rules of court.

In response, and under Case No. HC4391/18, Firinne Trust filed an application for leave to amend the citation of Veritas as applicant. It sought that the record be amended to reflect the applicant as “Firinne Trust also known as Veritas.”

This application was also opposed by the Zimbabwe Electoral Commission (ZEC).

The Minister and the Attorney-General filed their opposing papers out of time. Their failure to adhere to the rules was condoned at the hearing of the applications and they were given leave to participate in the proceedings.

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

On 9 March 2009 the High Court made a spoliation order for the restoration of peaceful and undisturbed possession of Twyford Estate in Chegutu to the applicant at the same time directing the first respondent and all those claiming possession of the property through him to vacate the farm forthwith failing which the Deputy Sheriff be authorized to remove them.

The spoliation order was issued in the form of a provisional order. It provided as follows:

“TERMS OF THE ORDER MADE

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The applicant's right to quiet, undisturbed possession of Twyford Estate, Chegutu district, as further particularized in the High Court orders annexed to this application as Annexures '2' and '3' and all movables thereon including livestock (hereinafter called “the property”) be and is hereby confirmed. That it is further declared that such right shall continue to subsist until such time as the applicants…, should it become necessary or expedient…, are lawfully evicted from the property through a competent order of court having final effect.

2. It be and is hereby declared that the conduct of the 2nd respondent and all other persons acting in common purpose or association with him on or about the property from the 6th February 2009 until their removal, resulting in dispossession of applicants from their property, is unlawful for want of compliance with due process to obtain vacant possession of the property, and, accordingly, constitutes an unlawful spoliation of applicants' property.

3. Respondents pay the costs of this application, jointly and severally, the one paying the other to be absolved.

INTERIM RELIEF

That, pending determination of this matter, the applicants are granted the following relief:-

(a) It be and is hereby ordered that the status quo ante to applicants' possession control and occupation of Twyford Estate in the district of Chegutu prior to 2nd respondent and all other persons acting through him summarily occupying the property on the 6th February 2009 be and is hereby restored.

(b) 2nd respondent and all other persons claiming occupation and possession of the property and/or all other persons not being representatives, employees or invitees of applicants are directed to forthwith vacate the property removing all movable property that may have been introduced by them onto the property.

(c) To the extent that it becomes necessary or expedient, the Deputy Sheriff is hereby authorized and empowered to attend to the removal of the 2nd respondent and all other persons acting through him from the property so that the provisions of this order are executed and implemented in full.”

It is common cause that the order made by the learned Judge, in the form of interim relief, is a spoliation order.

On 11 March 2009, the first respondent, who was the second respondent to the application, appealed to the Supreme Court against the order. The Notice of Appeal contained all the matters required under Rule 29 of the Rules of the Supreme Court, 1964 (“the Rules”) for a valid Notice of Appeal. It stated that the order from which relief was being sought was a final and definitive order.

On 22 April, the applicant made an application, to a single Judge of the Supreme Court sitting in chambers, for an order striking the appeal off the roll on the ground that in terms of section 43(2)(d) of the High Court Act [Chapter 7:06] (“the High Court Act”), the order made by the learned Judge was an interlocutory order in respect to which no appeal lay to the Supreme Court without the leave of the Judge who made the order, or, if that was refused, without the leave of a Judge of the Supreme Court. Leave of the learned Judge had not been sought before the appeal was noted. The contention was that no appeal was pending before the Supreme Court.

The first respondent opposed the application on two grounds;

(i) The first point taken in limine was that a single Judge of the Supreme Court, sitting in chambers, has no power to grant the relief sought by the applicant.

The contention was that an appeal, the noting of which complied with the requirements of the Rules, is pending hearing by the Supreme Court until “the Court”, in the exercise of its jurisdiction, decides that in terms of the enactment creating the right of appeal no appeal lies against the order from which relief is sought.

The first respondent said that if the applicant intended to have the appeal struck off the roll it should have applied to the Supreme Court for the relief on a court application as required under Rule 39. It could also have raised the matter by way of a preliminary objection to the exercise by the Court of its jurisdiction to hear the appeal in terms of Rule 41 of the Rules.

Rule 39 provides that:

“Subject to the provisions of Rules 31, 36, 37 and 38 applications shall be by court application signed by the applicant or his legal representative and accompanied by an affidavit setting out any facts which are relied upon.”

Rules 31, 36, 37 and 38 relate to matters in respect to which it is specifically provided that relief can be sought by application to a Judge of the Supreme Court sitting in chambers or open court.

Striking an appeal off the roll is not one of the matters provided for under any of these Rules.

Rule 41 provides that:

“A party to an appeal who intends to rely on a preliminary objection to any proceedings or to the use of any document shall give notice in writing of the objection to the Registrar and to the opposite party. If the objection is to be taken at the hearing of an appeal three copies of the notice shall be given to the Registrar.”...,.

In reply to the point in limine, the applicant contended that a Judge of the Supreme Court, sitting in chambers, constituted “the Court” with power to grant the relief sought.

On the allegation that there was non-compliance with Rule 39 or Rule 41 the applicant said that Rule 4 of the Rules gives the Judge discretion to condone non-compliance with any rule of court if it is in the interest of justice to do so.

The argument was that I should exercise the discretion under Rule 4 to condone the applicant's failure to make an application to Court in terms of Rule 39 for the relief it sought on the application to a Judge in chambers. The argument was that it was in the interest of justice that I hear and determine the application.

A copy of an unspeaking order made by the late MUCHECHETERE JA, in chambers, on 26 January 1999, in Croc Ostrich Breeders of Zimbabwe v Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 was produced to support the proposition that a single Judge of the Supreme Court, sitting in chambers, has power to grant an order striking an appeal off the roll.

The order declared that the Notice of Appeal filed by the respondent, on 20 November 1998, in the Supreme Court, was invalid for want of the appellant thereto having applied for and been granted leave to appeal against the judgment of the High Court in Case No. HC7118/98 as provided in section 43(2)(d) of the High Court Act [Chapter 7:06]....,.

On the first point, I agree with counsel for the first respondent, that, a single Judge of the Supreme Court, sitting in chambers, has no power derived from any provision of the relevant statutes, to make an order striking an appeal pending in the Supreme Court off the roll.

The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the statute in terms of which the Supreme Court was created and the Rules regulating its proceedings.

It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court, on appeal, is given.

Section 43(1) of the High Court Act provides that subject to the exceptions specified thereunder an appeal in any civil case shall lie to the Supreme Court from any judgment (includes order) of the High Court.

The right of appeal lies to the Supreme Court which is the body endowed with the power to hear and determine the appeal.

The Supreme Court was created by section 80(1) of the Constitution as a final Court of Appeal for Zimbabwe without original jurisdiction except when constituted as a Constitutional Court to hear and determine applications under section 24(1) of the Constitution alleging violation of the declaration of rights.

The Supreme Court consists of the Chief Justice, the Deputy Chief Justice, such other Judges of the Supreme Court, being not less than two, as the President may deem necessary and such other Judges as have been appointed acting Judges of the Supreme Court.

As a Court of Appeal, the jurisdiction of the Supreme Court exercised by the Judges of whom it consists is to hear and determine appeals, which, in terms of the enactments granting the rights of appeal, lie to it. Jurisdiction is conferred on the Supreme Court in any civil case by section 21 of the Supreme Court Act [Chapter 7:13] (“the Act”) which provides that:

“(1) The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.”

There is a minimum number of Judges required to duly constitute the Supreme Court when exercising its power to hear and determine an appeal.

It shall be properly constituted for the purpose of exercising its jurisdiction before not less than three Judges sitting at the fixed time and place with the assistance of its appropriate officers such as legal practitioners. That is clear from the provisions of section 3 of the Supreme Court Act which state that:

“For the purpose of exercising its jurisdiction in any matter, the Supreme Court shall be duly constituted if it consists of not less than three Judges.”

A court of law will not entertain proceedings, such as an appeal, unless it is satisfied that it is competent to do so and that the proceedings have been instituted in the proper form.

In providing that for the purpose of exercising its jurisdiction over any matter, the Supreme Court shall be duly constituted if it consists of no less than three Judges, section 3 of the Supreme Court Act effectively precludes a single Judge, sitting in chambers or open Court, from exercising the power conferred on the Court under section 21 of the Supreme Court Act.

The words “any matter” in section 3 of the Supreme Court Act include the question whether the terms of the enactment giving the right of appeal from a particular court limit the power of the Supreme Court to hear the appeal in respect of the order from which relief is sought by the aggrieved party.

It is for the Supreme Court, duly constituted, to make a finding that no appeal lies to it against the order and strike the appeal from the roll.

As a single Judge of the Supreme Court cannot determine the matter he or she cannot make the order striking an appeal off the roll.

If the appellant intended to have a decision made as to whether the order from which relief was sought by the first respondent was appealable without the leave of the Judge, it should have approached the Supreme Court by way of a court application as required by Rule 39. It could also have raised the matter by way of a preliminary objection to the exercise of jurisdiction by the Court.

In Pretoria Racing Club v Van Pietersen 1907 TS 687 the respondent's legal practitioners took the point that no appeal lay to the Transvaal Provincial Division in the case because the spoliation order made by the Judge was, in terms of section 22 of Proclamation 14 of 1902, an interlocutory order not appealable without the leave of the Judge who made it.

The full court, consisting of INNES CJ, SMITH J and CURLEWIS J accepted that it was for the court in which the appeal was noted to decide on the facts of each case what the nature of a particular order is in order to determine whether it fell within the category of final or interlocutory orders. At p493 SMITH J, writing for the full court, said:

“The point, in my opinion, would have been more properly raised as preliminary to the hearing of this appeal when a decision upon it would have been necessary.”

It is clear that as the question would have turned on the construction of the terms of the enactment creating the right of appeal, which, in this case, is section 43(1) read with section 43(2)(d) of the High Court Act, it would have been a matter within the competence of the Supreme Court to decide in terms of section 21 of the Supreme Court Act.

The order striking the appeal off the roll could only be made following a finding on the nature of the order from which relief was being sought on appeal.

The order made by the late MUCHECHETERE JA in Croc Ostrich Breeders of Zimbabwe v Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 is of no assistance in the determination of the question raised by this application.

It is an unspeaking order which does not disclose the facts on which it was based.

It states, on the face of it, that it was made in a chamber application in terms of Rule 39 of the Supreme Court Rules.

Rule 39 would not permit of an application for that relief to be made to a single Judge sitting in chambers.

The order simply declared that the Notice of Appeal filed by the respondent, on 20 November 1998, in the Supreme Court, was invalid for want of the appellant thereto having applied for and granted leave to appeal against the judgment of the High Court as provided in section 43(2)(d) of the High Court Act [Chapter 7:06]. It did not strike the appeal off the roll.

One gets the impression that it may have been common cause that the order from which relief had been sought, on appeal, was an interlocutory order.

Counsel for the first respondent argued that a Judge cannot use the discretion conferred on him or her under Rule 4 of the Rules to direct a departure from a Rule in order to assume jurisdiction which he or she does not have over a matter.

I agree.

Rules of court are made under section 34 of the Supreme Court Act for the purpose of regulating proceedings of the Supreme Court and facilitate the proper dispatch by the Court of its business. The Rules cannot be used to usurp the court's jurisdiction under section 21 of the Supreme Court Act.

Rule 4 of the Rules is not applicable to the facts of this case.

I would, accordingly, dismiss the application on the point in limine alone.

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS
Ruled By: FOROMA J

It is apparent from the number of reference cases in the official heading of this matter that the parties have been at each other in the courts on a number of occasions. Their battles appear to be far from over and their legal advisers do not seem to have made it any easier to see an end to the succession dispute arising from the demise of the founder of the second applicant.

It would appear that the dispute may drag on longer as long as correct legal advice is not given on how to apply rules of this court correctly and to best advantage.

The current case is a third urgent approach to the court for relief involving the members engaged in the succession dispute. The ninth (Dispol, ZRP Southerton Harare South HQ) and the tenth (Officer in Charge Machipisa) respondents have been dragged into this seemingly endless dispute.

The applicants approached the court for urgent relief which is summarized in the Provisional Order as follows:

“Terms of Interim Relief

(1) The 1st to 8th respondents and all their functionaries and followers be and are hereby temporarily barred and interdicted from entering or coming within twenty (20) metres of Stand 8679 Mangwende Drive, Canaan, Highfield, Harare or from interfering, interrupting, disturbing or hindering the SPIRITUAL activities of the applicants or their followers and functionaries pending the return date.

(2) The 9th and 10th respondents are directed to enforce the provisions of paragraph 1 herein above pending the return date.

(3) The 1st to 8th respondents show cause, if any, why they should not pay costs of suit on the higher scale.”…,.

It is important to note that the applicants, on 23 December 2016, when the applicants filed their application they also filed, on the same date, a certificate of service which purported to be proof of service on the first to eight respondents. The application could have been set down for hearing before the court took the Christmas break but for the invalid certificate of service in terms of which the appellant's legal practitioners purported to have served the application on one Rene Mutumbura at the first respondent's residential address who allegedly accepted service for and on behalf of the first to eight respondents. I directed that service be made afresh. Then, no service appeared to have been effected on the ninth and tenth respondents.

Proper service of the application had been done by 3 January 2017 and the matter was then set down for hearing on 4 January 2017.

At the commencement of the hearing, counsel for the first to eighth respondents took points in limine, namely, that;

(i) There was no urgent application before the court as there had been a failure to comply with the rules regarding the format of the application; and

(ii) That the certificate of urgency was defective and thus there was no urgent application before the court.

Counsel for the ninth and tenth respondents also took a point in limine, namely, that the relief sought was legally incompetent as police have no lawful authority to enforce High Court Orders as the power to enforce such court order reposes in the Sheriff, his deputy and assistants.

Counsel for the first to eighth respondents, citing the judgments of David Jack and Others v Lloyd Mushipe and Others HH318-15, a judgment of CHITAKUNYE J, and Marick Trading P/L v Old Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe HH667-15 argued that the applicants failure to use Form 29, with appropriate modification, is fatal to its application as that is a failure to comply with Rule 241 of the High Court Rules.

Order 32 Rule 241(1) provides as follows:

“(1) A chamber application shall be made by means of an entry in the chamber book and should be accompanied by Form 29(b) duly completed and except as is provided in sub rule (2) shall be supported by one or more affidavits setting out the facts upon which the applicant relies:

Provided that where a chamber application is to be served on an intended party, it shall be in Form No.29 with appropriate modifications. This proviso was inserted by Statutory Instrument 251/93.”

In casu, it is common cause that the chamber application is one which had to be served on the respondents as evidenced by the initial, albeit invalid, attempt by the applicants to serve the respondents. That, therefore, the chamber application had to be in Form No.29, with appropriate modifications in terms of the proviso to Rule 241(1), cannot be open to any debate.

The applicants counsel's response to this point in limine was therefore startling.

Counsel for the applicants, quite surprisingly, insisted and persisted that the applicant had more than adequately complied with Rule 241(1) as he considered that he was required to use Form 29B and not Form 29. He went so far as to argue that Form 29 was relevant only in court applications and that the applicants was not a court application but a chamber application.

With respect, counsel's reading of the Rule 241(1) was erroneous.

His set of rules was probably not amended in Rule 241(1) otherwise the only other explanation for the reading of Rule 241(1) urged upon by him betrays that he was not aware of the judgments of CHITAKUNYE J and MAFUSIRE J referred to him by counsel for the first to the eighth respondents.

One can well appreciate MAFUSIRE J's opening remarks in Marick Trading P/L v Old Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe HH667-15 when he said legal practitioners should keep abreast with the pronouncements from the courts. It is a duty.

While it is correct, as contented by counsel for the applicant, that Form 29 is for use in ordinary court applications - it is also for use in those chamber applications that require to be served on interested parties.

Both CHITAKUNYE J and MAFUSIRE J make a pertinent observation, namely, that one of its (Form 29) most important features is that it sets out a plethora of procedural rights. MAFUSIRE J additionally observes that it alerts the respondent of those rights and warns the respondent of the consequences of failure to observe those procedural rights.

I dare add that whilst the procedure for barring does not apply in urgent applications, in making the necessary adjustments to Form 29 the other procedural rights will need to be provided for as appropriate.

As observed above, in the absence of condonation of the failure to comply with Rule 241(1) as aforesaid the application is fatally defective.

Had the applicant not been adamant that they had complied with the rules the applicant would have been advised to seek condonation.

Regrettably, the applicants counsel was dismissive of the objection taken by the respondents counsel.

What triggers the exercise of the court or judge's discretion to grant condonation is the application for condonation. The court or a judge does not consider condonation mero motu. A party has to move it for such relief.

The applicants attitude has not really been helpful to its cause as it has persisted with a position untenable. It has made its bed of roses and must therefore lie on it. There being no application before me the application must simply be struck off the roll with the applicants paying the wasted costs.

In light of the conclusion I have reached on this point in limine there will be no need to determine the other points in limine taken. In the circumstances it is ordered that:

1. The application be and is hereby struck off the roll.

2. The applicants bear the respondents' costs jointly and severally the one paying the other to be absolved.

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Condonation or Judicial Indulgence re: Approach, Time-Barred Proceedings, Extension of Time and Interests of Justice

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