This
is a chamber application for re-instatement of appeal where the
application seeks an order couched in the following terms:-
“It
is ordered that -
1.
The application for reinstatement of appeal be and is hereby granted.
2.
The applicants' appeal in SC753/17 be and is hereby reinstated.
3.
The applicants' heads of argument in SC752/17, attached to this
application, shall be deemed to have been filed as at the date of
this order.
4.
The costs shall be in the cause.”
The
facts giving rise to this application, which can be gleaned from the
filed papers, are as follows:-
Under
case number SC753/17, the applicants made a similar application for
reinstatement of their appeal before my brother BHUNU JA, who, after
considering the documents filed and hearing counsel, granted the
order by consent with a caveat that the applicants were supposed to
file their heads of argument within ten (10) days from the date of
the order.
For
some reason, the order by BHUNU JA was not complied with. I suppose
this is what has now necessitated the filing of this current
application.
In
their application for re-instatement of the appeal, the applicants,
through their counsel, allege that the letter calling on them to file
heads never got to the attention of the lawyer due to misfiling in
the lawyer's offices. This was attributed to the negligence of
their secretary.
In
support of the confusion in their offices, the deponent attached an
affidavit from the secretary concerned which details the alleged mix
up. The secretary alleged that she received the letter, calling on
the applicants to file their heads of argument on 20 June 2018, and
inadvertently filed the letter in a wrong file. She further alleged
that she only discovered the mix up, or the mis-filing of the letter,
on 24 August 2018, necessitating the filing of this chamber
application on 10 September 2018, exactly 17 calendar days after the
alleged anomaly.
The
respondents have opposed this application.
The
respondents expressed reservations on the bona fides of the
explanation given by the applicants for their failure to comply with
BHUNU JA's order which had been granted by consent. More
importantly, the respondents argued that the applicants had not
sought condonation for their non-compliance with the court order and
that, therefore, the application for reinstatement was improperly
before the court.
Finally,
the respondents argued that the applicants desired appeal had no
prospects of success.
CONDONATION
AND EXTENSION OF TIME
It
is the accepted position of the law that an applicant who has failed
to comply with a given court order or infringed the Rules of the
Court must seek to be condoned, or pardoned, for non-compliance,
first, before applying for re-instatement of their case.
In
the case of Zimslate
Quartize (Pvt) Ltd & Others v Central African Building Society
SC34-17,
ZIYAMBI JA, when dealing deal with an almost similar matter, remarked
as follows:-
“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
indulgence, including that of condonation, are there for the asking
does himself a disservice as he takes the risk of having his
application dismissed.”
It
is clear that in this application, the applicants have not made any
attempt to seek condonation. This does not appear in the founding
affidavit or in the draft order filed. There is no indication at all
why the application is being brought back to court almost four months
after they failed to comply with an earlier order for re-instatement
of the appeal. The situation is further compounded by the failure by
the applicants to explain the cause of the delay seeking an
appropriate remedy - 17 days after they discovered the anomaly.
As
noted by MAKARAU JA in Bonnyview
Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd & The
Minister of Lands & Rural Resettlement, Judgment No.
SC58-18;
“Condonation
is an indulgence granted when the court is satisfied that there is
good and sufficient cause for condoning the non-compliance with the
Rules.”
I
might add that it is not for the court to infer or speculate about
the existence of condonation when no request has been made for it. It
must be applied for before reinstatement can be sought. It is, in my
view, jumping the gun to seek re-instatement of an appeal before
first seeking condonation and extension of time in situations where
one has clearly infringed the court rules or an order of court as in
this case.
MATERIAL
NON-DISCLOSURE
There
is one other aspect of this case which has caught my attention. There
is no attempt by the applicants to advert to BHUNU JA's earlier
order in this application. There is no appetite by the applicants,
through their founding affidavit, to openly disclose that this
application is a second similar application which is being brought to
court. That deliberate attempt to withhold information does not
project the applicants in good light. Our courts are not keen to
grant favorable orders to litigants who withhold vital information to
it. NDOU J made this important observation in the case of Anabus
Services (Pvt) Ltd v Minister of Health and Others HB88-03
when
he remarked as follows:-
“The
courts should, in my view, always frown on an order whether ex parte
or not sought on incomplete information. It should discourage
non-disclosure, mala fides, or dishonesty.”
The
order by BHUNU JA, and its relevance to these proceedings, only came
to the attention of the court through the notice of opposition filed
by the respondents. That non-disclosure did not enhance the
applicants' application.
DISPOSITION
Under
normal circumstances, if this application had been properly before
the court, I would have been inclined to consider prospects of
success.
However,
given my position that the absence of an application for condonation
and extension of time to seek reinstatement must be precedent to an
application for re-instatement of this appeal, I consider the
application as fatally defective.
I
accordingly order that the matter be struck off. It is thus ordered:-
“That
the matter be and is hereby struck off the roll with costs.”
