APPLICATION
FOR REINSTATEMENT OF APPEAL
ZIYAMBI
AJA:
[1]
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.
[2]
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. 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'.
[3]
However, be that as it may, on 26
May 2016, the Registrar of the High Court wrote to the applicants instructing
them to deposit $3 200.00 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 r
10 of the Rules, the applicants were to advise the Registrar of any change of
address. They did not do so.
[4] 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 r 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.”
[5]
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.
[6]
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 r 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.
[7] 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.”
[8] At
the hearing, the point was taken, in limine,
by the respondent, that the application is a contradiction in terms in that a
prayer for reinstatement suggests that an appeal was previously noted while an
application for extension of time suggests that no (or no valid) appeal has
previously been noted. The applicants' case was that the appeal had lapsed for non-payment
of the costs of the record by reason of the provisions of r 34(5) which read as
follows:
“(5) If the appellant fails to comply with
the provisions of sub rule (1), or any written undertaking made in terms of the
proviso to that sub rule, the appeal
shall be deemed to have lapsed unless a judge grants relief on cause shown.”
[9]
The confusion may have stemmed from
the use, in the rule itself, of the words “lapsed unless”. While the term 'lapse' would suggest the
appeal was “terminated, voided, (or) expired” upon failure to comply with r 34
(1) with the result that there is no appeal filed, the two words read together
suggest that lapsing is prevented by the relief granted by the judge. If the correct interpretation is that the
appeal shall lapse upon failure to comply with the requirements of r 34(1) but
a judge may reinstate it, the application for reinstatement would, on the face
of it, be procedurally proper in the circumstances but the question remains as
to the effect of the lapsing. If the
effect is to void or terminate or bring an end to the appeal, then the relief
to be sought should be an application for an extension of time within which to
appeal. This is because an appeal which
has been voided or terminated or which has expired cannot be reinstated since
there is no appeal pending and one can only reinstate something which
exists. On the other hand, if the
lapsing is interpreted to mean that the appeal merely fell into abeyance then
it may be reactivated by an order of reinstatement. It is to be noted that the rule does not
speak of reinstatement. It speaks of
relief.
[10]
Another difficulty presented by the
wording of the rule is this. When does
the lapsing take place? The words 'lapsed unless' appear to convey the meaning
that it is the refusal by the Judge to grant relief which gives effect to the
lapse and that for as long as there is scope for an application for relief the
lapse will not take effect. If that is the correct interpretation, then again
an application for reinstatement would be appropriate.
[11]
In view of the above, I am not
inclined to hold that the application is a contradiction in terms. Accordingly, the point in limine fails.
[12]
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 r 34(5). The relief sought by the applicants is set out
above.
[13]
Mrs Mabwe, who appeared for the respondents, 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.
[14]
The difficulty with Mrs Mabwe's 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.
[15]
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.
[16]
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 r 34(1) 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 r 34
(5). 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.
[17]
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 disservice as he takes the risk of having his application dismissed.
[18]
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. 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
reassess 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.
[19]
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 r 34.
The applicants were granted the indulgence of a deferment of compliance
with the mandatory requirements of r 34(1). 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.
[20]
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 r 34(5).
The application is,
therefore, dismissed with costs.
Musarira
Law Chambers, 1st - 3rd
applicants' legal practitioners
Venturas
& Samkange, 4th applicant's legal
practitioners
Gill Godlonton & Gerrans, respondent's legal practitioners
The rule 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”.
