On 27 September 2001, the High Court in Harare issued an
order in terms of which it dismissed an application filed by the applicant
herein against the three respondents.
No reasons were provided by the learned judge in the court
a quo. Despite this, the applicant noted an appeal against the judgment on 11
October 2001.
Written reasons for the judgment were availed on
7 May 2007. A record of proceedings having been prepared,
on 19 March 2009 the Registrar of this Court requested the applicant
to file his heads of argument in support of the appeal in accordance with the Rules.
On 17 August 2009, the Registrar dispatched a second letter to the applicant's
legal practitioners of record informing them that the appeal was deemed to have
abandoned in view of the failure to file heads of argument. The records in the
matter were returned to the court a quo to allow execution in terms of the
judgment. No further action was taken by the applicant.
On 12 June 2012, the applicant's legal practitioners filed
a notice of renunciation of agency.
On 22 June 2012, the applicant filed this application. The
applicant was unrepresented.
In the founding affidavit in support of the order for
reinstatement of the appeal, the applicant stated that after the reasons were
availed he made all the requisite ground work to expedite the hearing of the
appeal. He claimed that he had been abandoned by his legal practitioners, and,
as a result, he had not been in a position to prosecute his appeal. His
erstwhile legal practitioners filed a supporting affidavit in which they
indicated that they had renounced agency on 1 April 2009. In the affidavit
they further averred that on receipt of the letter dated 17 August 2009
the legal practitioners responded by letter dated 19 August 2009 and informed
the Registrar that they had renounced agency on 1 April 2009. It appeared
that the notice of renunciation was not on record, and, consequently, on 12
June 2012, upon instruction from the applicant, another notice was issued and
filed with the Registrar.
On these facts, the applicant contends that he was not in
willful default of filing heads of argument as required by the Rules of this Court.
He contends, further, that in view of the fact that he was no longer
represented he was not obliged, in terms of the Rules, to file heads of
argument. He referred to the draft of notice of appeal and contended that the
appeal had merit, warranting the grant of the relief sought.
In opposing the application, the second respondent stated
that during the period extending from October 2001 and
17 August 2009, the applicant had filed no less than ten applications
with the High Court. He had also filed not less than four appeals with the
Supreme Court. Copies of the documents filed in relation to those matters were
attached. The documents show that the applicant was legally represented in all
the matters. In some of the cases, he was represented by senior counsel. It was
contended by the respondents that a judgment delivered by KUDYA J, on 20
February 2012, appeared to be the reason that spurred the applicant to act and
pursue the appeal which is the subject of this application.
As far as prospects of success were concerned, it was
contended by the respondents that the applicant had not set out the basis upon
which he considered that there were prospects of success in relation to his
appeal. The respondents contended that the applicant has not explained the
inordinate delay from the time that the Registrar deemed the appeal to have
been abandoned and the time that it took the applicant to file his application
for reinstatement of the appeal.
In the matter heard by KUDYA J, the applicant was the
plaintiff and he was legally represented. In his judgment, the learned judge
sets out in detail the prolixity of the litigation that the applicant and his
opponents had been engaged in. The applicant was criticized for the dilatory manner
in which he dealt with the matter which was the subject of that judgment. What
is clear is that it is the statement by the learned judge in the judgment to
the effect that the only claim that was still alive was the one for shares
which was still pending in the Supreme Court. The judgment is dated
21 February 2012. This application was filed on 22 June 2012. The
statement by the respondents appears to have merit. The applicant must have
been encouraged by the learned judge's remarks.
According to the affidavit from the applicant's erstwhile
legal practitioners, they renounced agency on 1 April 2009. The letter calling
upon the applicant to file heads of argument was dated 19 March 2009. There is
no dispute that it was received. It has not been attached to the application,
as a result there is no indication as to when it was received. That
notwithstanding, the applicant cannot run away from the fact that when the
letter of 19 March 2009 was written, he was legally represented. As such,
in terms of the Rules, he was obliged to file heads of argument.
The Registrar was, as a consequence, well within his rights,
in terms of the Rules, to write the letter of 17 August 2009 in terms of which
the appeal was deemed to have been abandoned due to the failure on the part of
the applicant to file heads of argument when called upon to do so.
Turning to the merits of the application, the applicant was
under an obligation to explain the delay in filing the application.
It is obvious that by 19 August 2009, his erstwhile legal
practitioners had become alive to the fact that the appeal had been dismissed
due to the failure on their part to attend to the heads of argument as
requested by the Registrar. They had filed a notice of renunciation of agency
on 1 April 2009. He was aware of this as he makes a statement to the effect in
his founding affidavit.
There is no explanation from the legal practitioner
concerned as to what action he took when he received notification that the
heads of argument were required. The legal practitioner does not explain
whether or not the applicant was advised of the notice of renunciation. It is
fair to say that the supporting affidavit from the erstwhile legal
practitioners is short on detail and does not assist the applicant's case whatsoever.
A litigant who has not complied with the Rules is entitled
to seek condonation from the court from such non-compliance.
A court may, on good cause, grant condonation for failure
to comply with Rules of Court but such condonation is not to be had merely for
the asking. An applicant seeking condonation has an onus to establish good
cause. That is to say that such applicant must provide a full, detailed, and
accurate account of the reasons for the delay and the failure to do that which
the Rules require to be done.
In this instance, the applicant has given conflicting and
patently false versions as to why there was non-compliance with the request by
the Registrar to file heads of argument. In his founding affidavit he pleads
poverty as a reason for the failure to comply with the demand for heads of
argument. The record confirms that the applicant has been litigating in the
High Court as late as February 2012. He also fails to explain the failure by
his legal practitioners to file the heads of argument. The notice of
renunciation was filed more than ten days after the Registrar had written to
the applicant's legal practitioners on the subject matter of the heads of
argument. The supporting affidavit should have explained that failure, as that
was the reason for the dismissal of the appeal. There is no explanation from
the legal practitioners as to why the heads of argument were not filed.
In fact, the letter by the Registrar did not appear to have
received attention apart from the renunciation of agency.
In Machaya v Muyambi SC04-05, ZIYAMBI JA had occasion to
deal with passiveness on the part of a legal practitioner called upon by the
Registrar to file heads of argument in an appeal. The learned judge stated:
“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) at 141 C-E 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 act 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 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 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, in my view, is suffering from a
misapprehension of the law.
He cannot claim that he was not required to file heads of
argument because he was unrepresented. What is of paramount import is what his
status was at the time that he was called upon to file the written submissions.
He was legally represented at the time and the Registrar was within his rights
to deem the appeal abandoned when the applicant failed to comply with the
demand.
The letter from the Registrar, dismissing the appeal, was
received by the applicant's legal practitioners. They responded to the same.
However, they do not proffer an explanation as to what action they took upon
its receipt apart from informing the Registrar that they had renounced agency
on behalf of the applicant.
The applicant himself does not deal with this aspect of the
matter.
He fails to see the significance of the letter from the
Registrar. The letter determined the fate of his appeal and the delay in
applying for its reinstatement needs a full and detailed account to explain why
no action was taken from 17 August 2009 to 22 June 2012. The delay is
clearly inordinate and in the absence of an explanation for the same the only
inference is that the applicant chose not to take action until the judgment by
the Honourable KUDYA J.
As for prospects of success, clearly the applicant has not
pointed this court to any. In the judgment sought to be impugned, the learned
judge stated:
“The application was ill-conceived in two mutually
inclusive aspects.
Firstly, there is a dispute of fact which cannot be
resolved on the papers. The applicant avers that he is entitled to access the
first respondent's statements of account during the period 1995-2001 by virtue
of his being a shareholder of the same. The second and third respondents oppose
the application on the grounds that the applicant is not a shareholder of the
first respondent and on that basis is not entitled to the order that he seeks.
The applicant is unable to furnish acceptable evidence, documentary or
otherwise, proving his shareholding in the first respondent during the period
in question.
The applicant states that such evidence is in the files of
the first respondent, access to which has been denied him by the second and
third respondents.
That brings me to the second hurdle in the applicant's
case.
The applicant has put the cart before the horse by bringing
this application at this stage. He should first have sought an order compelling
the respondents to give him access to such records as he may need to prove his
shareholding. Only then, in the event he had succeeded would it have been
prudent to contemplate the present application.”
The notice of appeal filed on 11 October 2001 attacks the
judgment on two bases. The first is that the court erred in dismissing the
application on the basis that the applicant had not produced a Share Certificate.
The applicant did not, before the court a quo, produce a Share Certificate. His second ground confirms this. The
second ground attacks the judgment on the basis that the court erred by not
having regard to correspondence between the respective legal practitioners of
the parties which confirmed that the applicant was a shareholder. Again, this
ground is clearly misplaced when regard is had to the applicant's acceptance
before the court a quo that the evidence by which he could prove his claim to
the shareholding was contained in files kept by the respondents and that he had
not been given access to the files. The correspondence between the legal
practitioners, in light of his concession as to the lack of proof of ownership,
could not be a substitute. Such correspondence could not, on its own, be held
to be the evidence that he was required to adduce.
In my view, I can find no better way of describing the
prospects of success, or lack thereof, of the contemplated appeal than was
stated by the court a quo. Clearly, there was no proof presented before the
court a quo which would have warranted an order declaring the applicant a shareholder
of the first respondent.
In the premises, the application lacks merit and
is hereby dismissed with costs.
