On 29 January 2016, the applicants noted an appeal against a
judgment of the High Court dated 20 January 2016 in which the applicants
were ordered, jointly and severally, the one paying the others to be
absolved, to pay to the respondent the sum of US$324,815=49 plus
interest thereon at the rate of 20 per cent per annum from 24 October
2013, such interest to be calculated monthly in advance on the said sum
and capitalized, to the date of payment in full.
It was further
ordered, that, the immovable property, being certain piece of land
situate in the district of Marandellas called Stand 130 Marandellas
Township, measuring 3,1474 hectares, held by the second applicant under
Deed of Transfer Number 4905/2002, be declared executable in recovery of
the said sum and that the applicants pay costs of suit on the scale of
legal practitioner and client.
In the notice of appeal, the
address for service was given as that of the applicants legal
practitioners, namely, 10 Mold Crescent, Avondale, Harare for the first,
second, and third applicants, and 2nd Floor Tanganyika House, Cnr 3rd
Street & K. Nkrumah Ave, Harare for the fourth applicant.
Also
in the notice of appeal was a statement to the effect, that, the
applicants undertook to pay security for the costs of the appeal as soon
as they were determined by the Registrar.
Rule 34(1) of the
Rules of this Court (“the Rules”) requires such costs to be paid at the
time of filing the notice of appeal or within a period of not more than
five days unless an undertaking is made, to the Registrar of the High
Court, to pay the costs as soon as they are determined.
Rule 34(1) of the Supreme Court Rules provides:
“(1)
The appellant, unless he has been granted leave to appeal in forma
pauperis, shall, at the time of the noting of an appeal in terms of Rule
29 or within such period therefrom, not exceeding five days, as the
Registrar of the High Court may allow, deposit with the said Registrar
the estimated cost of the preparation of the record in the case
concerned:
Provided that the Registrar of the High Court may, in lieu
of such deposit, accept a written undertaking by the appellant or his
legal representative for the payment of such cost immediately after it
has been determined.”
It is not clear whether any undertaking was made to the Registrar of the High Court.
I
entertain grave doubt as to whether the statement in the notice of
appeal amounts to an undertaking as required by the Rule which
stipulates that the undertaking must be made in writing 'to the
Registrar of the High Court'.
However, be that as it may, on 26
May 2016, the Registrar of the High Court wrote to the applicants
instructing them to deposit $3,200 with the Registrar, as costs for
preparation of the appeal record, within five days of service of the
letter upon them. A copy of the letter, annexed to the application, was
delivered at the first to third applicants address for service on 5 June
2016.
The applicants legal practitioners were not found at that address. They had relocated. No forwarding address was left.
In terms of Rule 10 of the Rules, the applicants were to advise the Registrar of any change of address.
They did not do so.
On
6 July 2016, the Registrar of this Court wrote to the applicants legal
practitioners advising them that the appeal was deemed to have lapsed in
terms of Rule 34(5) of the Rules. The letter, a copy of which is
annexed to the applicants founding affidavit, is directed to all the
applicants at their respective addresses for service.
The
applicants did not respond despite the acknowledgement by Mr Musarira,
who filed the supporting affidavit on behalf of the applicants, that:
“First to third Applicants new address for service is 5 Lomagundi Road, Harare, upon which the letter of lapse was served.”…,.
On
14 July 2016, the respondent's legal practitioners wrote to the
applicants legal practitioners noting, that, their appeal had been
dismissed and demanding payment in terms of the judgment by close of
business on 19 July 2016 failing which they would proceed to execute the
judgment without further notice.
The letter addressed to the
fourth applicant's legal practitioners was signed by the latter in
acknowledgement of receipt. The letter to the first to third applicants
was not acknowledged.
The respondents aver, that, upon enquiry
with the Law Society of Zimbabwe as to the whereabouts of the applicants
legal practitioners, they were furnished with the address from which
the legal practitioners had moved.
On 22 July 2016, the
applicants filed an application 'for REINSTATEMENT OF APPEAL AND
EXTENSION OF TIME WITHIN WHICH THE APPEAL SHOULD BE HEARD IN TERMS OF
RULE 31 OF THE SUPREME COURT RULES AS READ WITH PARAGRAPH 5 OF PRACTICE
DIRECTIVE 3/13.'
That application was struck off the roll with costs on 14 February 2017 by GUVAVA JA who heard it.
The
applicants aver, that, it was struck off because neither Rule 31 nor
Practice Directive 3 of 2013 provides for such an application.
In
that application, the applicants blamed the Registrar for making no
effort to ascertain the new address of the applicants legal
practitioners.
The present application was filed on 17 February 2017.
It
is, in essence, the same application filed before GUVAVA JA save that
the citation of the Rule, in terms of which the application is brought,
has been omitted. It is entitled: APPLICATION FOR REINSTATEMENT OF
APPEAL AND EXTENSION OF TIME WITHIN WHICH TO APPEAL.
In the draft order, the applicants seek the following order:
“1. The appeal under S-33-16 be and is hereby reinstated.
2.
The registrar shall determined (sic) the costs of the record and ensure
same is served on all the Applicants address for service.
3. Respondent shall pay costs of suit.”...,.
I
move on to determine the merits of the application, in particular,
whether cause has been shown by the applicants for the grant of relief
in terms of Rule 34(5) of the Supreme Court Rules.
The relief sought by the applicants is set out above…,.:
“1. The appeal under S-33-16 be and is hereby reinstated.
2.
The registrar shall determined (sic) the costs of the record and ensure
same is served on all the Applicants address for service.
3. Respondent shall pay costs of suit.”
Counsel for the applicants addressed me on the question of the reason for the delay and the prospects of success on appeal.
She
submitted, that, this was a proper case for condonation to be granted
and for the applicants to be allowed to argue their case on appeal. The
applicants, she argued, should not be visited with the consequences of
the negligence of their legal practitioners. She argued that there were
at least arguable prospects of success on appeal in that the court a quo
had found there was no agreement of loan between the first applicant
and the respondent, and that, therefore, the suretyship agreements
signed by the second to fourth applicants could not stand. In any event,
the amount owing was disputed by the applicants, and the court a quo
had erred in failing to deal with the argument proffered by the
applicants on that issue.
The difficulty with counsel for the
applicants submissions, regarding the grant of condonation, is that
condonation was not sought by the applicants. Neither in the founding
affidavit nor in the draft order filed is any indication given that
condonation is being sought.
In an application of this nature,
and, indeed, in any application which is necessitated by a breach of the
Rules, it is imperative that condonation of failure to comply with the
Rule in question be applied for, because, in each case, the applicant is
seeking an indulgence from the court.
The impression conveyed in
the affidavits filed on behalf of the applicants is that the applicants
are entitled to the order sought. No regret is expressed for the
infringement of the Rule.
The tone of the founding affidavit is
that no fault was to be attributed to the applicants or their legal
practitioners, and, that all blame lay at the door of the Registrar who
was accused of serving the letter, advising of the costs to be paid, at
the wrong address, having failed to ascertain the correct address of the
legal practitioners who had relocated.
The fourth applicant is
represented by a different firm of legal practitioners. He supported the
averments in the founding affidavit.
However, he does not deny
receiving the letter. His explanation for the failure to comply with
Rule 34(1) of the Supreme Court Rules is that he 'does not remember'
being served with a letter from the Registrar requesting costs. Like his
co-applicants, he has given no explanation for the delay in filing an
application for relief in terms of Rule 34(5) of the Supreme Court
Rules. The record shows the 'letter of lapse' (dated 6 July 2016) was
received by the first to third applicants. The fourth applicant did not
deny receipt of that letter.
In my view, the applicants conduct in this matter exhibits disdain for the Rules.
An
applicant, who has infringed the rules of the court before which he
appears, must apply for condonation, and, in that application, explain
the reasons for the infraction. He must take the court into his
confidence and give an honest account of his default in order to enable
the court to arrive at a decision as to whether to grant the indulgence
sought.
An applicant who takes the attitude that indulgences,
including that of condonation, are there for the asking does himself a
dis-service as he takes the risk of having his application dismissed.
This
is not a proper case, in my view, for exemption of the applicants from
the total disregard for the Rules exhibited by their legal
practitioners: see Friendship v Cargo Carriers Ltd & Anor 2013 (1)
ZLR 1 (S).
The applicants have aligned themselves with their legal practitioners in this regard.
They
have not shown that they were desirous of prosecuting the appeal or
that the appeal has been noted in good faith and carries prospects of
success.
While they dispute the actual amount ordered by the
judgment to be paid to the respondents, they have not made payment of
the amounts that they acknowledge to be owing.
That fact,
together with their failure to make payment of the costs or estimated
costs of preparation of the record, and the prayer in the draft order
requiring the Registrar, again, to assess the costs and serve the
assessment on their legal practitioners indicates, clearly, in my view,
the lack of seriousness with which they view the appeal noted.
Why should the Registrar re-assess the costs which have already been advised to them?
It
appears to me, that, any right thinking legal practitioner would
hastily approach the High Court and make payment in the interests of
progress. It is evident that the applicants are employing delaying
tactics.
On the question of reinstatement, the explanation given
by the applicants is that the notification by the Registrar, of the
quantum of costs to be paid by them, was served at their previous
address and did not reach them.
The fourth applicant was content to take solace in some form of loss of memory.
They
all placed the blame on the Registrar for failing to serve the letter
requesting payment of the costs at the correct address of the first to
third applicants.
The explanation given is totally unsatisfactory.
It
offers no valid excuse for their non-compliance with the requirements
of Rule 34 of the Supreme Court Rules. The applicants were granted the
indulgence of a deferment of compliance with the mandatory requirements
of Rule 34(1) of the Supreme Court Rules.
An applicant, desirous
of pursuing its appeal would, at the very least, have made enquiries
with the Registrar, from time to time, as to the amount required to be
paid. By 26 May 2016, when the Registrar wrote to the applicants legal
practitioners, no enquiries had been made by the applicants. That was
well after a total of seven months had elapsed from the date of noting
of the appeal.
It seems to me, that, one would be justified in
concluding, in these circumstances, that, the applicants had abandoned
any intention of prosecuting their appeal.
Since the onus lay on
the applicants to ensure that the Registrar was notified of their change
of address, the blame placed on the Registrar by the applicants is
misplaced. They have only themselves to blame.
In my view, no
cause has been shown by the applicants to justify the grant of relief in
terms of Rule 34(5) of the Supreme Court Rules.
The application is, therefore, dismissed with costs.
