Before: MALABA DCJ, in chambers.
This
is a matter which reflects a high degree of negligence on the part of the legal
practitioners who handled the applicant's appeal. The appeal was noted out of time about eight
years ago on 13 February 2004. The
judgment of the court appealed against had been given on 14 January 2004.
All
this time there has been no appeal against that judgment. The application for condonation of
non-compliance with the rules of court is made and there is no explanation at
all as to why the notice of appeal was filed out of time. There is no affidavit from the legal
practitioner who filed the notice out of time.
To
make matters worse Mr Mudambanuki did
not file heads of argument. He was made
aware of the points taken on behalf of the respondent in the heads of argument
that he admitted receiving. When asked
why there was no affidavit from the legal practitioner who filed the notice of
appeal out of time. Mr Mudambanuki could not give an
answer. He asked that the applicant be
given another chance to get the affidavit in question.
The
point he failed to appreciate is that there was no explanation let alone an
acceptable one for the failure to comply with the rules. There cannot be condonation of non-compliance
with the rules on the application which the applicant deliberately brought to
court seeking the relief she clearly was not entitled to obtain. Any legal practitioner must know the basic
requirements for an application for condonation of failure to comply with the
rules of Court and extension of time within which to appeal.
It
is clear that there is a point at which this Court cannot tolerate the degree
of lack of diligence by a legal practitioner. The applicant cannot escape the
consequences of the negligence of her legal practitioners.
This
is a case in which it is not necessary to consider the issue of prospects of
success. There is just no explanation of
non-compliance with the rules to consider.
In any case it is a matter of exercise of discretion by the court a quo.
There is no evidence that the court a
quo misdirected itself.
The
application is dismissed with costs.
Mudambanuki
& Associates, applicant's legal practitioners
Debwe & Partners, respondent's legal practitioners
