This
is a chamber application for the condonation of non-compliance with
the Rules of this Court and for an extension of time within which to
note an appeal against the judgment of the High Court in Case No.
HC5315/07, handed down on 19 February 2015 as Judgment No. HH150-15.
On
9 March 2015, the applicant, who is employed in the Zimbabwe National
Army as a Lieutenant-Colonel, noted an appeal against the judgment of
the High Court. He was a self actor at that time. In September 2015,
he was despatched to China on official duty for a period of about two
years, which period was extended for a further one year. He returned
to Zimbabwe on 30 October 2017. He then enquired with the Registrar
as to the status of his appeal and was advised that the appeal was
deemed to have lapsed because of his failure to make any arrangements
for the preparation of the record. The relevant correspondence from
the Registrar had been written during his absence from the country.
On
28 September 2018, the applicant filed a chamber application for
condonation and extension of time in Case No. SC709/18. This
application was dismissed on 15 February 2019 in default of his
appearance at the hearing of the matter. He avers that he did not
receive the notice of set down for the hearing. He has now filed the
present chamber application for condonation and extension of time on
13 March 2019.
The
application is strenuously opposed by the respondent.
In
an application for condonation and extension of time to appeal the
applicant is required to provide a reasonable explanation for his
failure to prosecute the matter timeously and to demonstrate that he
has reasonable prospects of success on appeal.
The
applicant has conceded that he has no reasonable explanation for the
delay between the dismissal of his earlier chamber application for
condonation by reason of his default on 15 February 2019 and the
filing of the present application on 13 March 2019. More importantly,
he has proffered no explanation whatsoever for the failure to
prosecute his intended appeal from the date of his return to this
country on 30 October 2017 and the date when he filed his first
chamber application on 28 September 2018 - a period of inaction of
almost eleven months.
However,
that is not the end of the matter.
In
considering his prospects of success on appeal, it is reasonably
clear that he had agreed, at the pre-trial conference stage in the
proceedings a quo, to pay the school fees for the four children of
the marriage. However, there is nothing to show that he agreed to pay
any specific amounts for those fees or the monthly rate at which
would be required to reimburse the respondent for the fees that she
had already paid or would continue to pay thereafter. The court a quo
ordered that the applicant should pay the current school fees for all
four children and that he should also reimburse the respondent at the
rate of US$1,000= per month in respect of an unspecified total amount
to be repaid. In making this order, the court did not take into
account the current financial standing of the parties.
In
my view, the court a quo was required, in making an order that is
just and equitable, to have due regard to the respective earnings of
the parties, and, in particular, to the earnings of the applicant
himself. At the relevant time, his net monthly salary appears to have
been in the region of US$1,300=. If this is correct, and the
respondent has not attempted to dispute the figure, the order granted
by the court a quo was clearly unrealistic and incapable of practical
fulfilment. It would then follow that the court erred and misdirected
itself in failing to take the applicant's earnings into account in
determining the monthly sums that he should be ordered to pay for
past and current school fees.
In
the event, although the applicant has failed to provide reasonable
explanations for the two delays that I have adverted to, he has
demonstrated a very arguable case on appeal in respect of the
monetary amounts that he was ordered to pay by the court a quo.
The
application should therefore be granted.
However,
because of the applicant's failure to prosecute the matter
diligently and timeously, he should be mulcted with an order for
costs on a punitive scale, such costs to be paid as a precondition to
his being allowed to proceed with his appeal. Indeed, the applicant
himself was not averse to such order being made so as to enable him
to pursue his appeal.
In
the result, it is ordered that:
1.
The application for condonation for non-compliance with the Rules be
and is hereby granted.
2.
The applicant be and is hereby granted an extension of time within
which to file and serve his notice of appeal.
3.
The applicant shall file and serve the notice of appeal within ten
days from the date of this order.
4.
The applicant shall pay the costs of this application on a legal
practitioner and client scale within ten days from the date of this
order.
5.
In the event that the applicant fails to comply with paragraph 4
above, this order shall lapse ipso facto on the last day for
compliance with that paragraph and this application shall be deemed
to have been dismissed on the same day.
