After
perusing the papers and hearing counsel, on 27 July 2018, I granted
the following order;
It
is ordered that:
“The
application for condonation and reinstatement of the appeal, in terms
of Rule 70(2) of the Supreme Court Rules, 2018 be and is hereby
dismissed with costs.”
I
have been requested to provide the reasons for my order. Here are
they.
The
applicant seeks the following order in this case:
“It
is ordered that:
1.
The application for condonation for non-compliance with Rule12(3) of
the Rules of the Supreme Court, 2018 be and is hereby granted;
2.
The application for reinstatement of the notice of appeal filed under
case number SC433/18 be and is hereby granted;
3.
The notice of appeal shall be deemed to have been reinstated on the
date of this order;
4.
Costs of suit.”
THE
BACKGROUND
The
applicant and the respondent entered into a contract wherein the
respondent provided debt collection services on behalf of the
applicant. A dispute over payment arose after the respondent had
provided the services. To resolve the impasse between the applicant
and the respondent, and, as per their contract, their dispute was
placed before an arbitrator. The arbitration proceedings were
protracted owing to numerous applications by the applicant to the
High Court, the majority of which were never prosecuted to finality.
However, despite all the challenges faced, the arbitrator eventually
made a determination in favour of the respondent which proceeded to
successfully apply to the High Court for the registration of the
award.
The
applicant responded by filing an appeal against the judgment of the
High Court on 6 June 2018. The applicant failed to comply with Rule
12(3) of the Supreme Court Rules, 2018, in that it failed to furnish
the Registrar with a receipt confirming payment for the Sheriff's
security for costs of service of all notices of set down. The
non-compliance with Rule 12(3) led to the applicant's appeal being
deemed to have been abandoned leading to the applicant's filing
this application for the condonation and re-instatement of the
appeal.
THE
APPLICANT'S CASE
In
its founding affidavit, the applicant attributed its failure to
comply with Rule 12(3) of
the Supreme Court Rules, 2018
to mis-communication between the legal practitioner handling the
appeal and his clerk. The applicant alleged that the result of the
confusion led to the non-filing of the receipt for the Sheriff's
costs which issue was subsequently rectified.
The
applicant further reiterated, in its application, that it had
prospects of success in that the court a quo had improperly
registered the arbitral
ward
in that the court had proceeded to register same despite an
application for review having been filed to challenge it.
The
applicant also criticized the court a quo for failing to provide
reasons for the registration of the award.
THE
RESPONDENT'S CASE
In
its notice of opposition, the respondent opposed the applicant's
application on the following:
It
criticized the applicant for its lackadaisical approach in failing to
comply with Rule 12(3) of
the Supreme Court Rules, 2018
and opined that the applicant had not given a reasonable explanation
to support its position. The respondent further attacked the
applicant for having employed all the tricks in the book in an effort
to obstruct the smooth conclusion of the arbitration proceedings and
argued that the application for condonation was actually a
furtherance of the same delaying strategy. Finally, the respondent
argued that the attack on the court a quo's alleged failure to
provide reasons for its decision to register the arbitral
award was most unfair and baseless since the court had in fact given
such reasons.
All
in all, the respondent expressed a very firm position that the filed
appeal had no prospects of success and that it was solely filed to
buy time.
THE
LEGAL POSITION
The
law relating to an application for reinstatement of appeal was
underscored by this Court in the case of Champion Constructors
v Mkandla & Anor SC18-07, where the court outlined the
requirements to be considered as follows:
“(i)
The extent of the delay;
(ii)
The reasonableness of the explanation proffers for the delay; and
(iii)
The prospects of success on appeal.”
See
also Susan Chipo Vera v Mitsuli and Company Limited SC32-04.
I
now propose to deal with these requirements in detail taking into
account the circumstances of this case.
THE
EXTENT OF THE DELAY
I
accept that the applicant ought to have filed the receipt with the
Registrar for security for costs by 15 June 2018 and that the
applicant's attention was drawn to this on 25 June 2018. As soon as
the applicant was notified of the abandonment of the appeal, the
applicant immediately filed this application.
I
consider the delay not to be inordinate.
THE
REASONABLENESS OF THE EXPLANATION FOR THE DELAY
The
reason given for non-compliance with Rule 12(3) of
the Supreme Court Rules, 2018 was
the alleged mis-communication between the legal practitioner and his
clerk.
While
the explanation might be genuine, it tends to lean on hearsay
evidence given the absence of the clerk's supporting affidavit
confirming what is now being attributed to her. This position was
re-stated in the case of Mafo v Ncube & Anor HB04-16 where the
court held that in such situations an affidavit from the person on
whom blame is placed must be filed to give credence to the story told
in respect of that person. In the absence of such an affidavit, the
explanation remains highly improbable for it is easier for one to
mess up and then look for a fictitious scapegoat.
PROSPECTS
OF SUCCESS ON APPEAL
I
consider this to be the greatest hurdle the applicant has to deal
with in an application of this nature. To earn the sympathy or
indulgence of the court the applicant must demonstrate that the
desired appeal has prospects of success.
See
Songore v Olivine Industries (Pvt) Ltd
1988
(2) ZLR 210 (S).
The
applicant alleged a litany of omissions on the part of the court a
quo in its decision to register the arbitral award in the High Court
in order to pave way for execution.
It
was stated that the court a quo did not furnish reasons for its
decision to register the award.
In
my view, this averment by the applicant is simply not true and was
raised in a desperate effort to cast aspersions on the court a quo.
The court a quo gave a fairly detailed and reasoned judgement
explaining why it registered the arbitral
award in favour of the respondent. The court considered the issues
now being raised by the applicant and made specific findings of fact
against the applicant. In its judgment, the court a quo dealt, at
length, with the numerous attempts made by the applicant in its stout
effort to delay the smooth conclusion of the arbitral
proceedings by mounting one application after the other - a large
number of which were never prosecuted to finality. On page 14 of the
judgment, the court concluded as follows:
“In
conclusion, refusing to recognize the award in the present case will
be allowing the respondent to take advantage of the situation it
deliberately engineered. It deliberately chose not to proceed with
the matter despite being given an opportunity to present its case.
There was no breach of the rules of natural justice, and, as such,
the award is not contrary to public policy. The award is binding on
the parties.”…,.
What
is most significant in the judgment of the court a quo is the
undeniable fact that it made findings of fact which this court can
only interfere with if it is demonstrated that such findings are
coloured by irrationality or unreasonableness. This position of our
law has stood the test of time. KORSAH JA put the test as follows, in
the case of Hama v National Railways of Zimbabwe
1996
(1) ZLR 664…,;
“The
general rule of law, as regards irrationality, is that an Appellate
Court will not interfere with a decision of a trial court based
purely on a finding of fact unless it is satisfied that, having
regard to evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic or accepted
moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at such a
conclusion…,.”
See
also the case of ZB Bank v Maria Masunda SC48-16…, per ZIYAMBI JA,
and Barnos & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, per GUBBAY
CJ.
A
proper reading of the respondent's notice of opposition, and, in
particular, paragraph 5 thereof, demonstrates the applicant's
well-calculated attempt to tirelessly work towards the obstruction of
the smooth conclusion of the arbitral
proceedings. The court a quo properly dealt with these manoeuvres
in its judgment and it is not possible for this Court to interfere
with such findings of fact.
In
my well-considered view, deriving from a global perception of this
case, it would be a serious miscarriage of justice if the applicant
were to be granted condonation for the re-instatement of its appeal
which is clearly grounded in hopelessness.
It
was for these reasons that I gave the order of 27 July 2018 in
chambers.
