This
is an application for re-instatement of the appellant's appeal
deemed dismissed in terms of Rule 44(1) of the Supreme Court Rules,
1964 for failure to file heads of argument on time.
The
applicant was originally represented by Messrs
Z
Ncube Legal Practitioners in the main appeal but is now represented
by Messrs Job Sibanda and Associates.
The changeover of legal practitioners was done with scant regard to
the Rules of Court. There was neither a Notice of Renunciation of
Agency by the erstwhile legal practitioners nor a Notice of
Assumption of Agency by the current legal practitioners, Job Sibanda
and Associates. The only reference to the change of legal
practitioners is to be found in the applicant's founding affidavit.
Both
the Supreme Court Rules, 1964 and the current Supreme Court Rules,
S.I. 84 of 2018 provide for renunciations of agency in Rules 12A and
14 respectively using identical language. The giving of notice of
renunciation of agency is a vital legal requirement meant to regulate
the representation of parties in an orderly manner such that the
court, and everyone concerned, know which legal practitioner they are
dealing with at every stage of the case.
Although
the Rules refer to an appeal and is silent on applications, it is
however pertinent to note that in such applications, they remain a
component part of the original appeal, hence the need to adhere to
the Rules. This enables the court, and the other party, to know
exactly which legal practitioner they are dealing with at every stage
of the case to avoid process and communication straying to the
erstwhile legal practitioner with no interest in the application.
The
procedure of giving notice for renunciation and assumption of agency
is also vital in that it avoids legal practitioners scrambling over a
client. While a litigant is entitled to a choice of a legal
practitioner at any stage of the proceedings - that choice must be
known to avoid confusion. The importance of transparency in this
regard was articulated by GWAUNZA JA…., in Masiwa
v Masiwa
SC46-06
when she said:
“The
court, going by its own Rules, normally accepts the notices of
renunciation and assumption of agency as indications of a litigant's
choice of legal practitioner where a change happens in the process of
prosecuting his/her case. This is for convenience of the court and
allows for order and efficiency in the prosecution of legal
proceedings.”
Already,
it appears that there is now conflict between the applicant and its
then legal practitioners who refused to cooperate when asked to file
a supporting affidavit in this application. The refusal of the
applicant's erstwhile legal practitioners to shed light on why the
heads of argument were not filed on time has seriously handicapped
the applicant's application. The applicant, at paragraph 41 of the
founding affidavit, deposed to by its Director, Delma Luppepe, had
this to say:
“Unfortunately,
Mr Ncube has flatly told the applicant's legal practitioners that
he is not prepared to depose to an affidavit, and has, instead,
referred the applicant's legal practitioners to Mr Uriri.”
Despite
the applicant's legal practitioners being referred to Mr
Uriri
for an explanation they have taken the gamble of approaching this
Court without his explanation for delay. The net result is that the
applicant is unable to proffer a reasonable explanation for the
inordinate delay and disdain of the Rules. The best it could do, in
the circumstances, was to blame its erstwhile legal practitioners
without affording them a chance to be heard. No reason has been
proffered as to why they shied away from approaching Mr
Uriri
for an explanation.
Apart
from the above irregularity, the application is a parody of more
serious fatal procedural irregularities, chief among them being
failure to provide a copy of the impugned judgment. It is an exercise
in futility for a litigant to attack a judgment of a lower court in a
higher court without availing the court a
quo's
judgment for scrutiny by the higher court to assess the veracity of
the applicant's criticism of the judgment. The applicant's
failure to avail the impugned judgment before me renders its
criticism of the judgment hollow and nugatory.
That
finding of fact and law renders the applicant's submissions on its
prospects of success valueless and not worth the paper upon which
they are written as no weight can be placed on the submissions in the
absence of the impugned judgment. ZIYAMBI JA echoed the same
sentiments in MM
Pretorious (Pvt) Ltd & Anor v Chamunorwa Charles Mutyambizi
SC39-12 when she said:
“As
to the prospects of success on appeal, the applicants make no mention
thereof in their affidavits and no determination can be made on this
issue particularly as the judgment appealed against does not form
part of the record. It follows that the applicants have not
established that there are any prospects of success.”
Failure
to attach the impugned judgment was therefore a fatal grave error.
The
applicant, at paragraph 41 of its founding affidavit, avows that the
notice and grounds of appeal filed by its erstwhile legal
practitioners are fatally defective. The irony is that it now wants
to reinstate the fatally defective notice and grounds of appeal. At
paragraph 42-43 of its founding affidavit its deponent, Delma
Luppepe, says:
“42.
Applicant's current legal practitioners, on studying the file, also
confirmed their view that the notice and grounds of appeal filed in
SC99/18 are fatally defective.
43.
For this reason, Applicant is applying for the reinstatement of the
appeal in SC99/18 so that that appeal can properly be withdrawn and
an Application for Condonation and Extension of time for Noting a
fresh appeal be filed.”
It
is trite and a matter of elementary law that a fatally defective
application is a nullity. It is dead and non-existent; it cannot be
resuscitated or resurrected as it is beyond redemption. In other
words, there is no cure or remedy for a fatally defective application
which is a nullity in the eyes of the law. In the words of LORD
DENNING, in the famous case of Macfoy
v United Africa Co. Ltd
[1961] 3 All ER 1169 (PC)…,:
“If
an act is void, then it is, in law, a nullity. It is not only bad but
incurably bad. There is no need for an order of the court, to be set
aside. It is automatically null and void without more ado, although
it is sometimes convenient to have a court declare it to be so. And
every proceeding which is founded on it is also bad and incurably
bad. You cannot put something on nothing and expect it to stay there.
It will collapse.”
What
this means is that since this application is founded on an
application which is fatally defective, it undoubtedly follows that
an application founded on it is also incurably bad and a nullity at
law. A valid application cannot be founded on a void application
which is a nullity at law. If the fatally defective original
application be the mother of the current application, it follows that
its offspring is equally defective and a nullity at law.
While
the applicant's current legal practitioners are bent on
apportioning blame to their colleagues they do not appear to have
done better themselves. The applicant's application remains in a
mess and beyond redemption.
There
being no valid application before me, the application cannot succeed.
It is accordingly ordered that:
1.
The application be and is hereby struck off the roll with costs.
