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 Rule 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 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.”
[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 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.
[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 Rule 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 Rule 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 Rule 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 Rule 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 Rule 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 Rule 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 Rule 34. The
applicants were granted the indulgence of a deferment of compliance
with the mandatory requirements of Rule 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 Rule 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
1.
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.”
2.
Para 7 of the supporting affidavit
3.
Para [7] supra
4.
Friendship vs Cargo Carriers Ltd & Anor 2013 (1) ZLR 1 (S)
