In Chambers, in terms of Rule 39 of
the Supreme Court Rules.
The applicant, who was the Parliamentary
candidate for the Zimbabwe African National Union–Patriotic Front ('ZANU-PF')
in the Parliamentary elections held in June 2000, was duly returned as Member
of Parliament for Gokwe South. On 26 July 2000, the respondent filed a petition
in terms of section 132 of the Electoral Act [Chapter 2:01] ('the Act')
complaining of an undue election.
On 15 January 2000, the High Court
delivered its judgment upholding the petition (HH04-03). An appeal was duly
noted on behalf of the applicant on 31 January 2003.
On 19 May 2004, the Registrar of this Court wrote to the
applicant's legal practitioners advising them that the record of proceedings
were received by the Supreme Court on 19 May 2004 and calling on them to file
Heads of Argument within 15 business days from the date of service of the
letter. The letter was served on the applicant's legal practitioners on 20 May
2004.
There was no compliance with this request.
On 14 October 2004, the Registrar of this Court, again,
wrote to the appellant's legal practitioners; this time advising them that the
appeal was deemed to have been dismissed since no Heads of Argument were
received within the prescribed period (stated in her letter of 19 May 2004). It
was advised that the records were being returned to the court of origin to
enable execution by the respondent of the judgment appealed against.
Only then did the appellant's legal practitioners respond.
They received the letter on 22
October 2004 and filed this application on 28 October 2004. Notwithstanding the
requirement of Rule 39 of the Rules of this Court that applications should be
by way of court application, the application filed was a chamber application.
The founding affidavit was sworn by the legal practitioner who had been
handling the appeal. Despite this fact, it took the legal practitioner six days
to file the application.
The explanation tendered by counsel
for the applicant is that despite many requests for the record from the
Registrar of the High Court, a copy was not availed to the applicant's legal
practitioners. This explanation is wholly unsubstantiated.
There was, attached to the papers, no letter written to the
Registrar of the High Court; no file note showing that visits were made to the
Registrar's Office in search of the record; no note of telephone conversations
with the Registrar requesting the record; no letter to the Registrar of this
Court indicating that there was a difficulty in obtaining the record.
The deponent to the founding affidavit states that he was
aware that the respondent's legal practitioners were in possession of their
copy of the record and he was content to wait to peruse the respondent's copy
after the respondent's Heads of Argument had been drawn by an advocate briefed
for that purpose.
In paragraph 6 of the founding affidavit, the legal
practitioner states:
“6. Accordingly, we failed to do
our Heads of Argument in time, a position which we relayed to our learned
friend Mr Lewis Uriri of Honey
& Blanckenberg legal practitioners, for the respondent, who promised to
supply us with his copies of the record as soon as Advocate Zhou who (sic) they had briefed was through with them.
7. We have not yet received any
copy of the records from the High Court Registrar nor from our learned friend,
Mr Uriri, and the only
communication we have had was from the Registrar of this Honourable Court
advising us that the applicant's appeal was regarded as abandoned.”
In paragraph 8, he avers that his failure to file Heads of
Argument was “neither out of deliberate failure nor was it due to tardiness on
our part but due to administrative deficiencies at the High Court. We therefore
aver that this cannot be visited on our client.”
A more fitting example of tardiness and negligence can
hardly be found.
The legal practitioner was advised by the Registrar that
the records had been received at the Supreme Court. If he encountered
difficulty in obtaining the record from the High Court, why did he not peruse
or obtain a copy of the record held at the Supreme Court for the purpose of
drawing Heads of Argument? There was, in addition, no evidence by the applicant
to the effect that he made efforts to ensure the timeous prosecution of his
appeal.
As counsel for the respondent submitted, he was able to
obtain the respondent's copy of the record from the Registrar of the High Court
with no difficulty. This, together with the fact that the applicant has
attached no documentary proof of his efforts to obtain the record, suggests to
me that the legal practitioner made no effort to obtain the record.
It seems that the applicant's legal
practitioner was content to do nothing – and nothing he did.
Counsel for the applicant concedes
that the legal practitioner was remiss but asks that the client not be visited
“with the sins of his legal practitioner.”
How many times has this plea been heard in the many
applications before this Court whether for condonation and extension of time
within which to appeal, or for reinstatement of appeals!
Times innumerable.
Yet the flood of applications continue unabated and the
same excuses are tendered over and over.
The time has come for sterner measures to be taken of
applications of this nature where negligence, tardiness, and disdain for the Rules
of Court is exhibited by legal practitioners. The often quoted passage from the
judgment of STEYN CJ in Saloojee & Anor,
NNO v Minister of Community
Development 1965 (2) SA 135 (A)…, bears repeating here, namely, that:
“There is a limit beyond which a
litigant cannot escape the results of his attorney's lack of diligence or the
insufficiency of the explanation tendered. To hold otherwise might have a
disastrous effect upon the observance of the Rules of this Court. Considerations
ad misericordiam should not be
allowed to become an invitation to laxity. In fact, this Court has lately been
burdened with an undue and increasing number of applications for condonation in
which the failure to comply with the Rules of this Court was due to neglect on
the part of the attorney. The attorney, after all, is the representative whom
the litigant has chosen for himself, and there is little reason why, in regard
to condonation of a failure to comply with a Rule of Court, the litigant should
be absolved from the normal consequences of such a relationship - no matter
what the circumstances of the failure are.”
And at F-H:
“A litigant, moreover, who knows, as the applicants did,
that the prescribed period has elapsed and that an application for condonation
is necessary, is not entitled to hand over the matter to his attorney and then
wash his hands of it. If, as here, the stage is reached where it must become
obvious also to a layman that there is a protracted delay, he cannot sit
passively by, without so much as directing any reminder or enquiry to his
attorney (cf. Regal v African
Superslate (Pty) Ltd, supra at
p 23 i.f.) and expect to be
exonerated of all blame; and if, as here, the explanation offered to this Court
is patently insufficient, he cannot be heard to claim that the insufficiency
should be overlooked merely because he has left the matter entirely in the
hands of his attorney. If he relies upon the ineptitude or remissness of his
own attorney, he should at least explain that none of it is to be imputed to
himself. That has not been done in this case. In these circumstances I would
find it difficult to justify condonation unless there are strong prospects of
success.”
The applicant himself is not without blame.
There is nothing in the papers to satisfy me that the
applicant made efforts to ensure the timeous prosecution of his appeal.
The notion that condonation of a breach of the Rules is
there for the asking ought to be dispelled. And, there must be finality to
litigation. It is an injustice to a party who has been waiting to execute his
judgment to be forced to suffer the effects of the disregard by the other
party's legal practitioners of the Rules of Court, namely, the delaying of the
execution of his judgment.
The factors usually weighed by the
court in considering applications of this nature are;
(i) The degree of non-compliance;
(ii) The explanation for it;
(iii) The importance of the case;
(iv) The prospects of success;
(v) The respondent's interest in
the finality of his judgment;
(vi) The convenience of the court; and
(vii) The avoidance of unnecessary
delay in the administration of justice.
See HERBSTEIN & VAN WINSEN, The Civil Practice of the Supreme Court of South Africa 4th
ed…,.
It was submitted, on behalf of the
applicant, that there are good prospects of success on appeal in that the
finding of the learned Judge that the perpetrators of the act of violence
proved to have been committed against the respondent were agents of the
applicant, was wrong.
I will address this submission
below but suffice it to say at this stage that even where there are prospects
of success, that factor is not necessarily decisive. See Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)…,
where SANDURA JA remarked:
“Whilst the presence of reasonable prospects of success on
appeal is an important consideration which is relevant to the granting of
condonation, it is not necessarily decisive. Thus, in the case of a flagrant
breach of the Rules, particularly where there is no acceptable explanation for
it, the indulgence of condonation may be refused - whatever the merits of the
appeal may be. This was made clear by MULLER JA in PE Bosman Transport Works Committee
& Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799
D-E, where the learned JUDGE OF APPEAL said:
'In a case such as the present, where there has been a
flagrant breach of the Rules of this Court in more than one respect, and where,
in addition, there is no acceptable explanation for some periods of delay and,
indeed, in respect of other periods of delay, no explanation at all, the
application should, in my opinion, not be granted whatever the prospects of
success may be.'”
See also Rennie v
Kamby Farms (Pty) Ltd
1989 (2) SA 124 (A)…,.:
“The notice of appeal, however, states no reasons for
concluding that the appeal is likely to succeed. It does no more than to recite
that the trial Court erred in making the findings on which its judgment is
based; and to list those findings which, so it is suggested, the learned Judge
should have made.
In applications of this sort, the prospects of success are,
in general, an important, although not decisive, consideration. It has been
pointed out (Finbro Furnishers (Pty)
Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA
773 (A) at 789C) that the Court is bound to make an assessment of the
petitioner's prospects of success as one of the factors relevant to the
exercise of the Court's discretion unless the cumulative effect of the other
relevant factors in the case is such as to render the application for
condonation obviously unworthy of consideration. It seems to me that in the
instant case the cumulative effect of the factors which I have summarised in
paras (1)-(5) above is by itself sufficient to render the application unworthy
of consideration; and that this is a case in which the Court should refuse the
application irrespective of the prospects of success. (Cf Mbutuma v Xhosa Development Corporation Ltd 1978 (1)
SA 681 (A) at 687 A; PE Bosman Transport
Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980
(4) SA 794 (A) at 799D-E.).”
I am of the view that the lack of diligence
exhibited by both the legal practitioner and the applicant in this matter is
sufficient to render this matter unworthy of consideration - irrespective of
the prospects of success.
