MATHONSI
J: This
is
essentially
an application for condonation of the late noting of an appeal
against the judgment of the Magistrates Court sitting at Kwekwe
handed down on 9 January 2013 in terms of which it ordered the
applicant, as the executrix of the estate of her husband, the late
David Nyirenda, to transfer House Number 544/3 Mbizo, Kwekwe to the
first respondent.
The
court made a finding that the said house had been sold by the
deceased to the first respondent before he passed away on 27 June
2008.
The
applicant, who had earlier on in 2009 been issued with a certificate
of authority by the Additional Master to transfer the same house,
surprisingly valued at $1,000-00, to her own name, was understandably
gutted. She purported to file an appeal but in the wrong court namely
the Magistrates Court in Kwekwe on 21 February 2013. She says that
when she tried to file the appeal in this court she was stopped dead
in her tracks, the time within which to appeal having expired.
The
applicant says as a lay person she was vexed by that sudden turn of
events and sought assistance from “the Zimbabwe Human Rights
Association who kept (her) documents for months” without acting on
them. They later returned the documents to her without an
explanation. At that stage she decided to report the matter to the
police alleging forgery of her deceased husband's signature on the
agreement of sale purportedly entered into between the deceased and
the first respondent. She does not say what became of the police
case. She however places the blame for failure to act timeously on
the Zimbabwe Human Rights Association completely oblivious of the
fact that she was already out of time to launch an appeal when she
tried to do so in February 2013 and does not even begin to proffer
any explanation for that initial delay.
In
addition, she does not take the court into confidence as to when
exactly she consulted that organization, the name of the lawyer she
dealt with and when she eventually got her documents back. Needless
to say there has been no supporting affidavit from whoever was
consulted at that organization confirming the delay.
Whatever
the case, this application for condonation was only filed on 29
December 2014 almost 2 years after the impugned judgment was handed
down.
Regarding
her prospects of success on appeal the applicant asserts that those
are very bright because the agreement of sale relied upon by the
first respondent “appear(s) to have been forged” and her late
husband never sold the house.
The
fact that the applicant's papers are in shambles with affidavits
and other documents being filed all over the place and willy nilly
without any regard to rules of procedure and without filing the
record of proceedings in the Magistrates Court which are being
contested, may be attributable to the fact that initially the
applicant was a self-actor. However there can be no justification
whatsoever of the fact that the papers have been allowed to remain in
that shambolic state throughout regard being had that the applicant's
legal practitioners, who prosecuted the application, assumed agency
on her behalf a long time before the matter was set down. Their
notice of assumption of agency was filed on 3 March 2017 and they
requested a set down of the matter on 20 February 2018.
There
is also no justification whatsoever for their filing of heads of
argument that do not address the issues to be determined. In fact a
tangent is taken in the heads of argument which address the appeal
proper without attempting to deal with the issue of the delay. Mr
Siziba
who
appeared for the applicant instructed by Mhaka Attorneys conceded
that indeed the heads of argument, which were not prepared by himself
of course, were not helpful at all. Unfortunately Mr Siziba
did
not file his own heads of argument ahead of the set down.
In
his opposing affidavit, the first respondent expressed reservations
on the veracity of the applicant's story that she consulted lawyers
who let her down because there is no confirmation from the said
lawyers that such consultation ever took place. He stated that
although a report was made to the police by the applicant, it yielded
nothing. No explanation for the delay has been proffered in the
entire application which, in the first respondent's view, is an
abuse of the process of the court.
Let
me state from the onset that in motion proceedings an application
stands or fails on its founding affidavit. If the founding affidavit
does not make a case for the relief sought, it does not matter that
the applicant files additional affidavits unprocedurally or attempts
to make a case in the answering affidavit. The application will fail
as no case would be made in the founding affidavit. See Mobil
Oil Zimbabwe (Pvt) Ltd v
Travel
Forum (Pvt) Ltd
1990 (1) ZLR 67 (H) at 70.
The
founding affidavit does not explain why the applicant attempted to
file an appeal in February 2013 well out of time, the judgment having
been handed down on 9 January 2013.
Whenever
a litigant realizes that he or she has not complied with a rule of
court he or she should apply for condonation without delay. If the
litigant does not do so, he or she should give an acceptable
explanation, not only for the delay in the filing of the notice of
appeal, but also the delay in seeking condonation. What calls for
some acceptable explanation is not only the delay in noting the
appeal but also the delay in seeking condonation. There are therefore
two hurdles to overcome in an application of this nature. See Viking
Woodwork (Pvt) Ltd
v Blue
Bells Enterprises (Pvt) Ltd
1998 (2) ZLR 249 (S) at 251 C-D; Saloojee
and Another NNO
v Minister
of Community Development
1965 (2) SA 135 (A) at 138H.
As
I have said the applicant has not given any explanation as to why she
found herself out of time to note an appeal. In addition, even the
explanation for the delay of well over a year in bringing this
application for condonation is, to say the least, tenuous indeed,
premised as it is on the unsubstantiated blame on an organization
called Zimbabwe Human Rights Association whose existence is as
obscure as the story itself.
It
is settled in this jurisdiction that where the explanation for the
delay is unsatisfactory then the prospects of success of the appeal
must be really great before the court can exercise its discretion to
condone the non-compliance. As stated by BEADLE
CJ in
Kuszaba-Dabrowski
et uxor
v Steel
N.O
1966 RLR 60 (AD) at 64;
“----
the more unsatisfactory the explanation for the delay, so much
greater must be the prospects of success of the appeal be, before the
delay will be condoned and the converse must of course be equally
true, the more satisfactory are the explanations for the delay, the
more easily will the court be inclined to condone the delay provided
it thinks there is prospects of the appeal succeeding.”
See
also Maheya
v Independent
African Church
2007 (2) ZLR 319 (S) at 323 B-C; Khumalo
v Mandeya
and Another
2008 (2) ZLR 203 (S) at 208 B; Musemburi
and Another
v Tshuma
2013 (1) ZLR 526 (S).
In
the present matter the application fails on both fronts.
The
explanations for the two delays, that is in noting the appeal and in
bringing this application for condonation, the latter one being quite
inordinate indeed, are extremely pathetic if not non-existent at all.
On
the prospects of success the application is also very poor.
I
say so because the applicant appears intent on appealing the decision
of the court a
quo
merely on the basis of a suspicion. In her own words she seeks to
challenge the sale agreement between her late husband and the
applicant because it “appear(s) to have been forged.” In my view,
that is not enough.
If
the applicant was unable to establish the forgery, not only at the
trial but also to the police where she reported it, surely she cannot
establish it on appeal. This is so because it is trite that an appeal
is determined on the four corners of the appeal record. If the
evidence of forgery was not submitted to the court of first instance,
it will still not be there on appeal. In fact Mr Siziba
conceded
that, without leading fresh evidence, the applicant cannot prove
forgery.
The
grant of condonation involves the exercise of judicial discretion,
which the court is required to exercise judiciously of course. The
court cannot condone a delay where it is apparent that there will be
no success at all merely to baby sit a litigant's ego. That would
be an injudicious exercise of discretion. I am therefore unable to
grant condonation in this matter.
In
the result, the application is hereby dismissed with costs.
Mhaka
Attorneys,
applicant's legal practitioners
Magodora
and Partners c/o Mabhikwa and Partners,
respondent's legal practitioners
