Before: SANDURA JA, In Chambers, in terms of
r 31(1) of the Rules of the Supreme Court, 1964
This is an application
for an extension of time within which to appeal against a judgment of the High
Court.
The essential facts are
as follows -
1. On
14 March 2007 the applicant ("Mosi") made an ex parte application in the magistrate's court, for a
provisional order interdicting the first respondent ("Joina") and the second
respondent ("Ellis") from letting a certain shop ("the property") to any person
other than Mosi. The provisional order
was granted.
2. On
10 May 2007 the magistrate's court confirmed the provisional order and
granted an order in the following terms:
"(a) (That) the lease
agreement entered into by the applicant and (the) first respondent on
28 October 2003 (be and is hereby) declared valid and binding on both
parties.
(b) (That) in the event that
(the) respondents, both or one of them, had entered into any other lease
agreements with any other parties, such agreements (be and are hereby) declared
null and void.
(c) (That the) second
respondent (should bear) the costs of suit."
3. On
22 May 2007 Joina and Ellis filed a notice of appeal in the High Court,
challenging the order granted by the magistrate's court on 10 May 2007.
4. On
10 July 2008 the High Court heard the appeal and reserved its judgment.
5. On
6 August 2008 judgment was handed down, but Mosi was not aware of that
fact until 8 September 2008 when it was informed by its legal
practitioners that the High Court had set aside the order granted by the
magistrate's court.
6. On
10 September 2008 Mosi filed a notice of appeal in this Court, challenging
the High Court's decision. The notice
of appeal was filed long after the fifteen day period within which it should
have been filed had expired. No
extension of time within which to note the appeal had been granted.
7. On
11 September 2008 Mosi filed the present Chamber application for an
extension of time within which to appeal against the High Court judgment. A copy of the application was served on
Joina's legal practitioners on the same day.
8. On
1 October 2008 Joina filed its opposing affidavit and served it on
Mosi. The opposing affidavit was filed
long after the three day period within which it should have been filed in terms
of r 31(5) of the Rules of the Supreme Court, 1964 ("the Rules") had
expired. No extension of the period
within which to file the affidavit had been sought or granted. Although this was brought to the attention
of Joina's legal practitioners on 2 October 2008, no extension of time in
which to file the affidavit was sought.
When the matter came
before me for hearing on 17 October 2008, Mr Gama, who appeared for Mosi, raised a point in limine and submitted that Joina was not properly before me
because its opposing affidavit had not been filed timeously.
After hearing both
counsel on the point in limine
and on the main application, I reserved my decision.
It is clear from the
provisions of r 31(5) of the Rules and from the facts set out above that
Joina's opposing affidavit was not filed timeously, and that notwithstanding
the fact that this was brought to the attention of Joina's legal practitioners
on 2 October 2008, nothing was done about the failure to comply with the
rule until 17 October 2008 when Joina's legal practitioner made an oral
application after the point in limine
had been raised.
In
my view, Mr Gama's submission on
the point in limine is
unassailable. Before the hearing of the
Chamber application Joina did not seek, nor was it granted, an extension of
time in which to file the affidavit.
Mosi's Chamber application was, therefore, unopposed and Joina was not
properly before me at the hearing of the Chamber application.
However, even if the
opposing affidavit had been filed timeously I would have granted Mosi's
application for an extension of the time within which to appeal. I say
so because Mosi gave a reasonable explanation for its failure to note the
appeal timeously. The explanation was
that its lawyers had not been notified of the date when the judgment was to be
handed down. Consequently, neither Mosi
nor its lawyers knew that the judgment had been handed down until long after
the fifteen day period had expired.
As far as the merits of
the appeal are concerned, the issue between the parties is whether a lease
agreement was concluded between them.
Mosi alleges that it was, but Joina alleges that it was not.
However, having listened
to counsel's submissions, I cannot say that the appeal is unarguable.
In the circumstances, it
is ordered -
1. That
the delay by the applicant in filing its notice of appeal be and is hereby
condoned.
2. That
there be no order as to costs.
Madzivanzira, Gama & Associates,
applicant's legal practitioners
Atherstone & Cook, first respondent's legal practitioners