This is an application for condonation of failure to file a notice of appeal within the time prescribed by Rule 38 of the Supreme Court Rules 2018 and extension of time within which to appeal.THE FACTSThe applicant is a charitable trust of a public character. It was registered with the ...
This is an application for condonation of failure to file a notice of appeal within the time prescribed by Rule 38 of the Supreme Court Rules 2018 and extension of time within which to appeal.
THE FACTS
The applicant is a charitable trust of a public character. It was registered with the Registrar of Deeds in terms of section 5(b) and (m) of the Deeds Registry Act [Chapter 20:05] under a Notarial Deed of Trust number MA NO 2079/2019 on 25 September 2019.
Thereafter, the applicant lodged a chamber application for the registration and certification of the same Trust with the High Court.
On 2 January 2020, a judge in chambers granted the following order:
“On payment of the appropriate fees provided for in SI187/2019 (item 12 of Schedule r2) the Notarial Deed of Trust MA. NO. 20179/2019 be and is hereby registered with the court and a copy thereof shall be retained by the Registrar who shall issue a Registration Certificate of the Trust.”
The Registrar of the High Court failed to effect the order.
She sought directions from the presiding judge.
Only then did it dawn upon the judge that the order lacked a legal basis to stand on.
The presiding judge invoked the provisions of Order 49 Rule 449 of the High Court Rules 1971 and sought to rescind the order.
The appropriate notice of her intention to revoke the order was duly served on the applicant.
On the date of hearing, counsel for the applicant argued in support of the order.
Judgment was reserved.
The judgment, HMT59-20, was released on 15 September 2020. The order of 2 January 2020 was revoked in its entirety on the basis that it was “erroneously sought and erroneously granted.”
The applicant's counsel collected it on 17 September 2020.
The applicant sought to appeal against the judgment on 7 October 2020, which turned out to be a day after the dies induciae for doing so had lapsed.
It filed the initial application for condonation and extension of time within which to note an appeal under Rule 61 instead of Rule 43 of the rules of this Court.
That application was removed from the roll for that reason on 28 October 2020.
The present application was filed on 19 November 2020. It was set down on 12 March 2021 for hearing before me, in chambers, on 30 March 2021.
On the date of hearing, I postponed the application to 12 May 2021 to enable the applicant to file heads of argument to address the propriety of lodging the application for a prospective appeal to this Court without a respondent.
The applicant's counsel duly did so on 30 April 2021.
On the date of hearing, I directed counsel to address me on both the preliminary point and the merits of the application, and, thereafter, reserved judgment.
I am grateful to counsel's industry on the preliminary point.
I now turn to deal with the preliminary point.
Whether an appeal can properly be filed to this court without a respondent
THE LAW
The Supreme Court Rules 2018 do not expressly deal with a situation such as the present one, where an appeal is sought to be lodged against an order or judgment of a subordinate court or tribunal, without a corresponding respondent.
However, Rule 73 of the Supreme Court Rules incorporates, by reference, the position that relates to the High Court.
It is for this reason that the High Court Rules are the default rules that cover the procedural gaps in the Supreme Court Rules.
Regarding chamber applications, Rule 39(4) of the Supreme Court Rules 2018 reads as follows:
“(4) Applications referred to in rules 43, 48, 49, 53 and 55 shall be by way of chamber application as regulated, mutatis mutandis, by the High Court Rules.”
An application in which only one party approaches a court for relief, without a corresponding respondent, falls into the category of ex parte applications.
TJM PATERSON in Eckard's Principles of Civil Procedure in Magistrates Court, 5th ed, Juta 2010 states that:
“The ex parte applications may be used in the following cases; (inter alia) when the applicant is the only person with an interest in the case.”
In the same vein is Herbstein and Van Winsen, the Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa by CILLIERS, LOOTS and NEL, 5th ed at p421:
“An ex parte application is an application brought without notice to anyone, either because no relief of a final nature is sought against any person, or, because notice might defeat the object of the application, or, the matter is one of extreme urgency. It has also been described as an application of which notice has, as a fact, not been given to the person against whom some relief is claimed in his absence. Where relief is claimed against another party in an ex parte application, the application must be 'addressed' to that party but need not be served on that party.”
On the same page, in note 7, the learned authors rely on Development Bank of Southern Africa Ltd v Van Rensburg [2002] 5 SA 425 (SCA)…, and Ghomeshi-Bozorg v Yousefi 1998 (1) SA 692 (W)…, to underscore that:
“An order granted ex parte is, by nature, provisional, irrespective of the form which it takes.”
In our law, in terms of Order 32 Rule 226(1) of the High Court Rules 1971 applications fall into two separate and distinct groups:
(i) The first relates to court applications which are made in writing to a court on notice to interested parties.
Rule 226(2)(d) of the High Court Rules prescribes that:
“(2) An application shall not be made as a chamber application unless —
(d) The relief sought is for a default judgment or a final order where —
(ii) There is no other interested party to the application; or”
Again, Rule 241(1) of the High Court Rules contemplates the absence of a respondent by prescribing that a chamber application that is not going to be served on an interested party be filed under Form 29B.
Rule 242(1)(a) of the High Court Rules, however, contemplates the existence of a respondent to whom the applicant is precluded from serving a chamber application because he “reasonably believes that the matter is uncontentious in that no person other than the applicant can reasonably be expected to be affected by the order sought or object to it.”
In our procedural law, unlike in South Africa, therefore, an ex parte application filed in terms of Rule 226(2)(d)(ii) of the High Court Rules may be made for a final order in circumstances where there is no other interested party to the application.
A general perusal of our law reports shows that ex parte cases have been determined by this Court.
The obvious case that comes to mind, where the High Court mero motu refused to register a legal practitioner “on the basis of a long-standing rule of practice adopted and enforced in this country that members of the legal profession who appear to present cases must be formally dressed, tidy, and well groomed” is In re: Chikweche 1995 (1) ZLR 235 (S).
My researches have shown, that, between 1992 and 2009 all the In re cases such as In re: Hoggart 1992 (1) ZLR 195 (S) (immigration); In re: Wood & Anor 1994 (2) ZLR 155 (S) (immigration); In re: Kwenda 1997 (1) ZLR 116 (S) (Criminal offences); In re: Munhumeso & Ors 1994 (1) ZLR 49 (S) (Law and Order Maintenance Act); In re: Ndimande: A-G v Ndimande (criminal) 1992 (2) ZLR 259 (S); In re: Patrick Chinamasa SC113/2000, SC113-00 (contempt of court); and In re: Hativagone & Ors 2004 (2) ZLR 133 (S) (fraud, permanent stay under section 24(2) of the old Constitution) that came before this Court were constitutional challenges.
I was unable to find a case on all fours with the present matter.
That an appeal can be lodged in the Supreme Court, without a respondent, is implicitly stated in section 43 of the High Court Act [Chapter 7:06]. It reads:
“43 Right of appeal from High Court in civil cases
(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.”
Any judgment of the High Court that is not specifically excluded by subsection (2) of section 43 of the High Court Act is therefore appealable.
The present judgment is not excluded so it would be appealable.
To the same effect is section 21 of the Supreme Court Act [Chapter 7:13] which provides that:
“21 Jurisdiction in appeals in civil cases
(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.
(2) Unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine, and shall exercise powers in respect of an appeal referred to in subsection (1), in accordance with this Act.”
The provisions of Rules 37(2), 37(3) and 43(4) of the Supreme Court Rules 2018, which require that a copy of the appeal and chamber application shall be served on a respondent, would therefore be inapplicable in a case such as the present one.
I am satisfied, that, the present application, in which the applicant seeks to appeal without citing a respondent, is contemplated by the Supreme Court Rules 2018 as read with the above cited provisions of the High Court Rules 1971.
I find the application to be properly before me.
