CHEDA JA: In Chambers, in terms of r 31 of the Supreme
Court Rules.
This is an application
for an extension of time in which to note an appeal in terms of r 31 of the
Supreme Court Rules.
On 27 August 2008 the
respondent obtained judgment against the applicant for the return of a number
of vehicles listed in the order together with costs of suit.
On 18 September the
applicant filed a notice of appeal against that judgment. The notice of appeal was defective in that it
did not give the date of the judgment concerned. When the respondent was served with this
application it filed its opposition to it.
The respondent pointed
out that the applicant had not given a reasonable explanation for the delay and
reasonable prospects of success. The
respondent also pointed out that applicant admitted that it uplifted the
judgment on 1 September 2008, yet the judgment was delivered in Motion Court on 27
August 2008.
The applicant, in its
affidavit sworn to by Mr Narotam, only referred to an affidavit by Mr Lloyd and
said the applicant was not manifestly in wilful default.
On the prospects of
success, again Mr Narotam only referred to Annexures D & E and said the
directors and shareholders of Continental Securities Trading (Pvt) Ltd were all
perfectly aware of the terms of the contractual arrangements which had been entered
into which resulted in the motor vehicles in question remaining in the possession
of the applicant. Annexure D is referred
to in the Index as a Notice of Appeal on pages 16-18 on the papers. Annexure E is a Notice of Appeal which is an
amended Notice of Appeal.
Reference to the Notice
of Appeal is inadequate as it only tells the Court the findings against which
an appeal is made. It does not deal with
the prospects of success required in the procedure for this type of
application.
It is a requirement in
our law that the affidavit should deal with this aspect of the application,
that is, the prospects of success.
The respondent, in
opposing the application, raised these issues, and, in addition, pointed out
that the applicant only instituted the application when a writ of execution was
served.
It also pointed out that
the applicant sought to blame its legal practitioners instead by reference to
the fact that the matter was to be dealt with by Mr Lloyd who later declined
saying he was about to leave the country.
In Director of Civil Aviation v Hall 1920 (2) ZLR 354 it was pointed
out that the prima facie prospects of success needed to be set out in the
application.
The judgment which the
applicant seeks to have set aside raises an important point, which is that the
applicant could not deal with company property as if it was its own when it is
a shareholder.
In response to that, the
applicant then attempted to counter that by giving a history of the matter
which was never raised in the papers.
These are matters that
the applicant had the opportunity to deal with in its affidavit. They were not part of the grounds of appeal
either.
Once it was noted that
the matter was opposed, both Mr Narotam and Mr Lloyd filed replying affidavits.
Mr Narotam submitted
that it was not necessary to argue in detail the question of prospects of
success on appeal. He said the Notice of
Appeal speaks for itself and argument would be addressed at the hearing of the
application. This is clearly the
opposite of what the Rules say. The end
result is that the applicant was not willing to say anything about its prospects
of success.
Mr Lloyd also said
absolutely nothing about the prospects of success. Instead he said the failure to act timeously
rested with the applicant's advisors.
The fact that the applicant was only a shareholder and should not have dealt
with the company property as its own was not challenged.
The fact that in so
doing the applicant had ignored the interest of the other shareholders was not
challenged. It is difficult to see how,
in such a situation, the applicant believed that there were prospects of
success.
In conclusion, the
application fails on the basis that no reasonable explanation for the delay was
given, and no attempt was made to proffer any prospects of success.
The application is
therefore dismissed with costs.
Gill, Godlonton & Gerrans,
applicant's legal practitioners
Mutamangira &
Associates, respondent's legal practitioners