CHAMBER
APPLICATION
GUVAVA
JA:
This
is a chamber application made in terms of Rule 12 of the Supreme
Court Rules, 1964.
The
brief background to this application may be summarised as follows:
The
applicants are husband and wife. They approached the court a
quo,
by way of urgent chamber application, seeking a stay of execution and
return of goods which had been removed pursuant to a writ of
execution following a default judgment which was granted in favour of
the second respondent.
The
default judgment, related to a claim by the second respondent, who
was the legal practitioner for the second applicant, claiming unpaid
legal fees for services rendered to the second
applicant
and his political colleagues.
On
2 March 2017, the High Court granted a provisional order, for the
return of all the goods that had been attached and removed in
execution. The court also ordered first and second applicants to
refrain from selling the goods until the dispute between the parties
had been resolved.
On
3 March 2017 the second respondent filed an appeal against the
judgment of the court a
quo.
The applicants contend that the legal practitioners, should not have
successfully filed the appeal without the leave of the court. It was
their contention that as the order related to an interim order, the
second respondent should have sought leave from the court a quo in
compliance with section 43 of the High Court Act [Chapter
7:06].
They
thus sought an order setting aside the decision of the Registrar
accepting the notice of appeal and an order declaring the appeal that
was before the Supreme Court a nullity.
The
Registrar filed a report in terms of Rule 12 of the Supreme Court
Rules 1964 stating that they had accepted the notice of appeal as the
order which had been granted was in the form of a mandatory interdict
and thus did not require the leave of the court a
quo.
The
second respondent denied that they required leave to appeal from the
court a
quo.
He also argued that the matter was not properly before the court as
the order sought could not be granted by a single judge in chambers.
The second respondent also raised the point that the applicants were
in fact seeking a declaratur and this could not be granted.
It
is trite that when the Supreme Court is seized with an appeal, such
an appeal cannot be struck off the roll by one Judge in Chambers.
In
the case of Blue
Rangers Estates (Pvt) Ltd v Muduviri 2009
(1) ZLR 376 (SC), an applicant approached a single Supreme Court
judge in Chambers seeking the relief that the matter be struck off
the roll. Applicant therein alleged that the matter for which notice
had been filed was interlocutory in nature and required leave to
appeal in terms of section 43 of the High Court Act. It was counsel's
contention that without leave to appeal nothing was pending before
the court. MALABA DCJ, as he was then, stated the following:
“I
agree with Mr Mlotshwa
that
a
single Judge of the Supreme Court sitting in chambers has no power
derived from any provision of the relevant statutes, to
make an order striking an appeal pending in the Supreme Court off the
roll.
The answer to the question whether a single Judge sitting in chambers
has power to hear and determine an application for an order striking
an appeal off the roll lies in the relevant provisions of the Statute
in terms of which the Supreme Court was created and the Rules
regulating its proceedings. It is also necessary to take into account
provisions of the enactments by which the right of access to the
Supreme Court on appeal is given.” [My
emphasis]
Mr.
Mwonzora
for the applicants submitted that the above cited case could be
distinguished from the present matter as they were seeking an order
that the notice of appeal be declared a nullity on the basis that the
Registrar should not have accepted it in the first place. He sought
to make the distinction that this was not an application for the
striking off of an appeal which was on the Supreme Court roll, but
for the setting aside of a decision of the Registrar who had
improperly accept such notice of appeal.
In
my view this point brings to the fore the question of the role of the
Registrar when accepting process.
The
Registrar's office is established by section 169(4) of the
Constitution. The provision provides:
“An
Act of Parliament may provide for the conferring, by way of rules of
court, upon a registrar of the Supreme Court, duly appointed thereto,
of the jurisdiction and powers of the Supreme Court in civil cases in
respect of —
(a)
the making of orders in uncontested cases, other than orders
affecting status or the custody or guardianship of children;
(b)
deciding preliminary or interlocutory matters, including applications
for directions but not including matters affecting the liberty of the
subject.”
Section
33 of the Supreme Court Act establishes the officers of the Registrar
in compliance with the Constitution. It provides:
“(1)
There shall be a registrar of the Supreme Court and such deputy
registrars, assistant registrars and other officers of the Supreme
Court as may be required, whose offices shall be public offices and
shall form part of the Judicial Service.”
The
role of the Registrar is set out by the authors Herbstein
and Van Winsen, The Civil Practice of Superior Courts of South
Africa, (3rd
ed, Juta and Co Ltd, Cape Town) at p.35 as follows:
“The
Registrar is an official of the court, responsible for the smooth
functioning of the court and is charged with multifarious duties
which duties are administrative in nature. For the purposes of
clarity, these duties include but are not limited to the issue of
process, recording, preserving and directing the flow of all
documents filed by the litigants. The Registrar is also responsible
for the setting down of cases and issuance of court orders. It is
common cause that the Supreme Court is a court of record and the
Registrar is the custodian of all court records. Case management
which includes maintaining records and scheduling hearings is also
the Registrar's prerogative.”
From
the above, it is clear that the Registrar provides a full range of
administrative and support services to the Judges by managing cases
coming to court. However, he or she can also perform quasi-judicial
functions but only in limited circumstances that are prescribed by
statute.
An
examination of the Supreme Court Act and Rules clearly illustrates
that it is not one of the functions of the Registrar to decline a
Notice of Appeal which has been filed in time. Where a Notice of
Appeal is defective for whatever reason it is for the court seized
with the matter to make such a determination.
The
Registrar cannot refuse to receive a notice of appeal on the basis
that it is defective, in the sense that it does not comply with Rule
29 of the Supreme Court Rules. The Registrar may suggest to a party
that their document is defective in order for them to make the
necessary amendments and bring the document back for filing. However,
because of the administrative nature of the Registrar's duties, if
a party insists on filing its document as it is after such direction
has been offered, the Registrar is obliged to accept the document.
The
rationale is that a Registrar does not have the power to prevent a
litigant from filing their court process, if it is filed within the
times prescribed in the Rules, as this falls outside the ambit of the
Registrar's mandate.
This
is not a situation that is peculiar to this jurisdiction only but is
found in a number of jurisdictions. I have examined the practice in
various jurisdictions and found that it is the same. The Registrar of
the Supreme Court of Canada exercises the following functions:
(i)
Processing, recording, preserving and directing the flow of all
documents filed by parties and recording all proceedings which take
place during the life of a case.
(ii)
Providing information to litigants, the media and the public on the
court's processes and activities and scheduling of cases.
(iii)
Maintaining the court library and providing a full range of library
and information services to judges, staff of the court and legal
researchers.
(iv)
Publishing the Supreme Court reports.
(v)
Providing administrative and operational support to the judges and
court staff.
(vi)
Providing protocol services to the judges.
In
Nigeria the duties of the Registrars are also administrative in
nature. Through these functions they aide in quick dispensation of
justice, and this includes but is not limited to the following:
(i)
As the head of the registry, he ensures proper day to day
administration of the court registry.
(ii)
He co-ordinates the handling of all court processes e.g. issuance of
hearing notices, warrant of arrest, summons.
(iii)
He undertakes supervision of work of all staff deployed on litigation
duties.
(iv)
He makes arrangement for court sitting and give necessary assistance
to the judge in the open court.
(v)
He helps in the administration of Oath and Affirmation on witnesses
appearing in court.
(vi)
He maintains record books in accordance with the rules of court and
preparation of the court proceedings eg. rulings and judgments for
interested litigants and lawyers in addition to when such matter is
going on appeal.
(vii)
He must ensure proper maintenance and disposal of attached property
and exhibits in his custody.
(viii)
He must ensure the preparation of quarterly returns of cases filed
and disposed.
(ix)
He must see to the execution of court judgments and orders.
It
should be noted that once a notice of appeal has been filed with the
Registrar of this court, the appeal is, from that point, pending
before the Supreme Court.
In
my view once the second respondent filed the notice of appeal within
the prescribed time, it ceased to be an issue upon which the
Registrar's decision could be questioned or one where a single
judge of the Supreme Court could declare a nullity.
I
was thus not convinced by the argument that there was a distinction
between this case and the Blue Rangers Case (supra)
as the net effect of such an order would be the same.
If
the matter, were to be struck off the roll, it would no longer be
before the court. Similarly, if the Registrar's decision accepting
the notice of appeal were to be set aside on the basis that it did
not comply with section 43 of the High Court Act, the matter would no
longer be before the court.
In
any event, as I have stated above, it should be stressed that once a
matter has been filed with the Registrar only that court can remove
it from the roll on the basis that it does not comply either with the
rules of the court or a statute.
In
instances where the Registrar has been granted quasi-judicial
functions these are specifically spelt out either in the relevant
legislation or the rules of this court.
For
instance where a party is called upon to inspect a record and he
fails to do so within the prescribed time Rule 15(8a) of the Supreme
Court Rules specifically authorizes the Registrar to deem the appeal
abandoned. The Rule also specifies the remedy that the party has
against the decision of the Registrar.
In
relation to the point raised on whether or not the Supreme Court has
the jurisdiction to issue a declaratur in the first instance, the
point has already been determined.
In
Guwa
v Willoughby's Investments (Pvt) Ltd 2009
(1) LR 368 (S) a litigant approached a single Judge of the Supreme
Court in Chambers seeking a notice of appeal to be set aside as a
nullity. It was not disputed by the respondent that the notice of
appeal was fatally defective, and the court stated that there was in
effect nothing pending before the Supreme Court. However, in spite of
this being apparent to both parties, the single Judge approached in
Chambers made the point that the Supreme Court does not have the
jurisdiction to make a declaration in the first instance.
The
Supreme Court is a creature of statute and as such is governed by the
Statute that established it – the Supreme Court Act. Such courts
are distinct from courts of original jurisdiction such as the High
Court. A statutory body can only act within the confines of its
enabling Act, and nowhere in the Supreme Court Act, is the Supreme
Court given the jurisdiction to entertain, in the first instance, an
application for a declaratur.
In
this case, the court stated that the Supreme Court, as an Appellate
Court, cannot act in the first instance and issue such a declaratur,
in spite of the parties accepting the notice of appeal to be invalid.
On that basis the court declined to grant the relief sought as it
highlighted that the court is not clothed with that authority and
stated as follows:
“In
other words, whilst the Supreme Court may do nothing that the law
does not permit, the High Court may do anything that the law does not
forbid.”
Clearly
the Supreme Court cannot grant a declaratur in the first instance,
even where the parties may be in agreement and approach the court by
consent seeking an order beyond the courts' jurisdiction, such
consent does not and cannot compel a judge to issue an order beyond
his or her jurisdictional authority.
This
application cannot therefore succeed.
The
Blue Rangers case presented the option for a respondent in an appeal
to raise its opposition to a notice of appeal by way of a point in
limine
before the court. This application therefore was ill-founded and
premature. The parties should have waited for their day in court to
raise their objections to the notice of appeal.
Ms
Mahere
applied to be awarded costs on a legal practitioner scale, on the
basis that the case was ill conceived as the issues had already been
determined by this court.
Mr
Mwonzora
submitted that the applicant should not be visited with costs on a
punitive scale as it was not clear from the rules that they could not
approach a judge in chambers to impugn the Registrar's decision.
I
was inclined to agree with him that there was no decision dealing
with the role of the Registrar. However, in respect to the other
points I was of the view that after the case authorities were
highlighted to him he should not have persisted. Thus whilst I am not
inclined to award costs on a punitive scale, I take the view that the
second respondent has been successful in defending the application.
He should be awarded costs on the ordinary scale.
For
the reasons given above, the application is dismissed with costs.
Mwonzora
& Associates, Applicants Legal Practitioners
Nyakutombwa,
Mugabe Legal Counsel, 2nd
Respondent's Legal Practitioners
