Before, GOWORA
AJA, in Chambers, in terms of r 31(7) of the Rules of the Supreme Court.
This is an
application for condonation for the late filing of an appeal and for an
extension of time within which to file the appeal. The application follows the
decision of this court on 30 January 2012 to strike the appeal off the roll due
to certain defects on the notice of appeal initially filed in this case.
On 22 October
2009 the High Court dismissed with costs a claim brought by the applicant
herein against the respondent wherein it, the applicant, sought an order
requiring the respondent to sign all documents necessary to effect the transfer
of certain premises, namely Lot 10 of Lot 24A Block C, Avondale into the
applicant's name.
The
dispute was in respect of a written agreement of sale entered into by the
parties on 13 March 2006. It is common
cause that the respondent cancelled the agreement, citing breach of its
obligations under the agreement by the applicant. The applicant had thereafter filed an
application for specific performance which was referred to trial. The trial court dismissed the claim with
costs. On 28 October 2008 the applicant
filed an appeal against that judgment.
On
10 February 2011 this Court granted the applicant leave to file its appeal out
of time and ordered that the notice of appeal be filed within seven days of the
date of the order. The appeal was then
set down for hearing on 30 January 2012 on which occasion the appeal was struck
off the roll for want of compliance with the Rules of this Court.
The
applicant has now filed this application to comply with the Rules. The founding affidavit has been deposed to by
Mr Bvekwa who is the legal
practitioner of record for the applicant.
He has deposed to an affidavit in which he states the following:
"The
appeal, a copy of which I attach hereto as "A", does not explicitly state what
the Appellant wants this Honourable Court to grant as contained in the relief
being sought. It does not explain what should be done with the order of the
Court a quo. The notice of appeal was
drafted by me. It was an oversight on my part. I had filed an Application in
this case for the same reason. It was granted. When the fresh notice of appeal
was filed it did not indicate what was to be done with the court a quo's judgment although I had
specified in the relief. It does not state the fate of that judgment. I was
actually taken by surprise when the court raised this issue. I checked with my
own draft where I was proof reading the draft notice of appeal. The relevant
clause which was in long hand is there. I had added it as I had realised as
well that the draft notice which was presented to the court was also wrong. I
added this clause to the draft notice that had been filed with the earlier application.
My secretary had not included the clause. She told me that it was inadvertence.
When the document came back for signature I thought all the amendments I had
made had been attended to and I proceeded to sign the notice of appeal for
filing."
It
is suggested by counsel that it was only on the date of hearing that he
realised after it was brought to his attention by the court that the amendments
had not been effected. He had checked
the position with his secretary and she had admitted that she had, due to
inadvertence, omitted the clause. The
secretary has deposed to an affidavit confirming that she had omitted the
clause containing the amendments.
It
is also contended in the founding affidavit that the applicant has prospects of
success on appeal and accordingly, the applicant has prayed for an extension of
time within which to file the notice of appeal.
The
application is opposed.
It is trite that in considering an
application such as this the Court will amongst others consider the following
factors:
(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 the case
(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 4 ed at p 897. See also National
Social Security Authority v Denford Chipunza SC-116-04.
Further
in Maheya v Independent African Church
SC-58-07 the Court reiterated the same principle in the following terms:
"In
considering applications for condonation of non-compliance with its Rules, the Court
has a discretion which it has to exercise judicially in the sense that it has
to consider all the facts and apply established principles bearing in mind that
it has to do justice. Some of the
relevant factors that may be considered and weighed one against the other are:
the degree of non-compliance; the explanation therefor; the prospects of
success on appeal; the importance of the case; the respondent's interest in the
finality of the judgment; the convenience to the Court and avoidance of
unnecessary delays in the administration of justice. Bishi v
Secretary for Education 1989 (2) ZLR (H) at 242D-243C."
It
is argued on behalf of the respondent that the application in case falls short of the requirements
referred to above. The respondent
contends as follows. The explanation for the lack of compliance is
unsatisfactory to say the least. In
October 2010 the applicant filed an application for condonation and leave to
file an appeal out of time. The founding
affidavit was, as in the present application, deposed to by Mr Bvekwa.
He averred therein that the notice of appeal which had been drafted by him
did not specify if the appeal was against the whole or part of the judgment
from the High Court. He also averred
that the prayer in the notice was not "specific". He said that the defect on the notice of
appeal was due to an oversight on his part. There has been a lack of diligence
on the part of applicant and its legal practitioners. This Court cannot continue to be encumbered
by applications for condonation caused by a legal practitioner's tardy
performance of his work.
In
casu, the applicant is represented by
a senior legal practitioner with considerable experience. He is expected to be familiar with the rules
of this Court. The negligence on the part
of the legal practitioner or lack of attention to detail on the part of that
legal practitioner cannot be an explanation that this Court should find
satisfactory. In Maswaure v Nyamunda 2001(1) ZLR 405 at 409E-G this Court stated:
"Even
if the delay in applying for condonation were due to the fault or negligence of
the appellant's legal practitioners, the appellant would not escape the
consequences of their lack of diligence.
As STEYN CJ said in the Saloojee
case supra at 141B-E:
"I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the blame lies with
the attorney. 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 application 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 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."
In Selk Enterprises (Pvt) Ltd v Oliver Hunungwe
Chimenya & Ors SC-10-03 the court held as being manifestly inadequate
an explanation to the effect that the default in complying with the Rules was
due to an oversight on the part of the legal practitioners. The fact that the
legal practitioner's conduct caused the delay is not a reasonable explanation
in applications such as this. This
remark is particularly pertinent and of significance where previously an
applicant has been granted an indulgence by this Court in a similar application
again premised on the inadvertent conduct on the part of his legal
practitioners. See also S v McNab 1986 (2) ZLR 280 (S).
This is the second application by this
applicant for condonation and leave to appeal and an extension of time within
which to file such appeal.
Taking into account the abortive hearing
of 30 January 2012, this makes this application the third occasion on which
this Court is being asked to deal with the matter. If the application succeeds this Court would
be dealing with the same matter on four occasions. Clearly it is not in the interest of the
general administration of justice for a court to deal with one matter on so many
occasions and allowing the roll to be clogged.
The administration of justice would be prejudiced and compromised if
laxity on the part of legal practitioners were to be encouraged.
I will then deal with the issue of
applicant's prospects of success on appeal.
The court a quo, correctly in my view found, that in interpreting the
contract it was duty bound to give effect to the intention of the parties at
the time of concluding the contract.
The learned Judge in the court a quo found that from the facts the
parties were agreed from the onset that time was of essence. Initially the respondent, the defendant in
the court a quo, had wanted payment
upon transfer but the parties negotiated and compromised on payment being
effected after 14 days from signing the agreement of sale.
The learned Judge found that having
regard to the prevailing economic circumstances it would have amounted to an
absurdity for the defendant to have given the plaintiff the freedom to pay at
any time when the circumstances clearly established that time was of the
essence. He found that in terms of the
agreement the applicant was required to pay the balance of the purchase price
within 14 days from the date of signature.
His reasoning cannot be faulted.
In its prayer, the applicant seeks for
an order for specific performance in terms of the contract against the
respondent. The order, if granted, would
result in the applicant having transfer of the immovable property into its
name.
At the time that the respondent
cancelled the contract, she reimbursed the applicant with the portion of the purchase
price paid by the applicant up to that date.
By November 2006 the applicant had become aware of the deposit of the
purchase price in its account and it retained it. The sum total of these events is that the
applicant has not paid the purchase price and it seeks therefore, in the appeal,
an order that it pays to the respondent an amount of Z$16 000.00.
If this Court was to accede to the
appeal and issue an order for specific performance, the applicant would acquire
an immovable property for no value.
Although the Zimbabwe dollar still is legal tender it has fallen into
disuse. The respondent would have no use
for it and it is most unlikely that the applicant would be in a position to
effect payment of the sum tendered.
A party who claims a decree of specific
performance must be willing and able to tender performance of his own
obligations unless he has already performed. As matters stand the applicant
will not be in a position to pay value for the property in terms of the
contract the parties executed. I am therefore not persuaded that the applicant
has prospects of success on appeal.
The respondent complains that the
grounds of appeal are long and winding and that consequently the notice is
defective. In my view given the
conclusion I have come to above, it will not be necessary to determine this
issue.
In the premises the application is
without merit and it is hereby dismissed with costs.
Bvekwa Legal Practice,
applicant's legal practitioners
Kantor & Immerman, respondent's legal practitioners
