Before,
ZIYAMBI
JA,
in
Chambers in terms of r 5 of the Supreme Court Rules.
This
is an application for condonation of the late noting of an appeal and
an extension of time within which to appeal.
The
High Court judgment sought to be appealed against was delivered on 23
November 2011.The application was filed on 12 March 2012, almost four
months later. In terms of the Rules of the Supreme Court (“the
Rules”) an appeal shall be noted within 15 days of the date of the
judgment. (See Rule 30(a)).
The
application is beset with problems the first of which is that it does
not contain a copy of the judgment appealed against. (See Rule
31).This non-compliance renders the application fatally defective as
no consideration of the application can be undertaken without sight
of the judgment.
Moving
on to the merits of the application, the delay is over 3 months. In
an application for condonation the Judge, in determining whether
sufficient cause has been shown to exist justifying the grant of the
indulgence sought, will take into account the cumulative effect of
certain factors among which are the extent of the delay and the
explanation therefor, the prospects of success on appeal, the
respondent's interest in the finality of the judgment and the
avoidance of unnecessary delays in the administration of justice.
In
their affidavit in support of the application, the applicants alleged
as follows.
Following
the delivery of the judgment on 23 November 2011, their legal
practitioner filed a notice of appeal on 25November 2011.
1)
He did not serve the notice on the Registrar of the High Court. (Rule
29(2)).This omission was due to an oversight on his part.
2)
The Notice of Appeal did not mention the court in which the judgment
was handed down nor did it state whether the whole or part of the
judgment was being appealed against (as required by Rule 29 of the
Supreme Court Rules).
3)
They were led to believe that “strict compliance technically
renders the notice a nullity subject to condonation by this Court and
that strictly speaking one has to apply for an extension of time in
which to comply”. (I quote this to show the extent of the lack of
diligence and the casual approach of the legal practitioner in regard
to the preparation of this application. The italics are mine).
4)
The non-compliance was not due to the fault of the applicants but
was an oversight by their legal practitioner.
5)
It would appear they are deemed out of time for noting their appeal
but there was a genuine attempt to appeal timeously.
6)
They have attached a notice of appeal from which it can be seen that
the delay is minimal.
The
applicants' legal practitioner, Mr Harvey who drafted both the
Notice of Appeal and the application averred that:
1)
Due to pressure of work the omission in the notice was overlooked by
him.
2)
The oversight in not filing the notice in the High Court was probably
due to the fact that there was an intervening weekend. (My italics)
3)
He forgot to check that his messenger had not “filed in the High
Court”.
4)
He “assumes for the purposes of this matter that the judgment was
issued on 6 February 2012 as per the date stamp on it”.
5)
The “non-compliance with the Rules was inadvertently made by me and
I apologise for my carelessness and for not being more diligent, and
for not checking that my messenger had not served the papers in the
High Court”.
In
effect, the applicants alleged that they had filed a defective Notice
of Appeal and had omitted to serve it on the High Court as is
required by the Rules due to an oversight by their legal
practitioner.
A
more flagrant disregard of the Rules is difficult to imagine, and a
more casual attitude by a legal practitioner to a serious matter is
difficult to conceive.
A
legal practitioner is not engaged by his client to make omissions and
to commit 'oversights'. He is paid for his professional advice
and for the use of his skills in the representation of his client. He
is not paid to make mistakes. These could be costly to his client. He
is professionally, ethically and morally bound to exercise the utmost
diligence in handling the affairs of his client.
I
find the explanation given for the delay to be unreasonable. To quote
GWAUNZA JA in Simukeliso Gono v Trustees of the Zimbabwe West Annual
Conference of the United Methodist Church SC 65/06:
“I
do not find the explanation tendered for the default in question to
be reasonable. Legal practitioners are expected to be acquainted with
the Rules of the court, and to abide by them, they should not do
their clients a disservice by “overlooking” important
requirements under the Rules of the court.”
The
applicants and their legal practitioner have placed the blame for the
disregard of the Rules in this case squarely on the shoulders of the
legal practitioner but as was said in Apostolic Faith Mission in
Zimbabwe & 2 Ors v Titus Innocent Murefu SC28/03:
“There
is a limit beyond which a client cannot escape the consequences of
the conduct of his legal practitioner and it seems to me that this
limit has been exceeded in this case. See Saloogee & Anor v
Minister of Community Development where at p141 C-E STEYN CJ remarked
as follows:
'There
is a limit beyond which a litigant cannot escape the result 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 applicants 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 for himself, and there is
little reason why, in regard to a condonation of a failure to comply
with a Rule of this Court, the litigant should be absolved from the
normal consequences of such a relationship, no matter what the
circumstances of the failure are'”.
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 on appeal.
In
conclusion, taking into account the cumulative effect of the factors
set out above, I am of the view that the applicants have not shown
good and sufficient cause for the grant of the indulgence sought.
The
blame for the defects in the application must rest solely on the
shoulders of Mr Harvey, the applicants' legal practitioner. He will
be ordered to bear the costs personally.
Accordingly,
it is ordered as follows:
(1)
The application is dismissed.
(2)
The costs shall be paid by the applicants' legal practitioner, Mr
Roy Harvey, personally.
Granger
& Harvey, applicants' legal practitioners
Mutamangira
& Associates, respondent's legal practitioners
