Before:
CHIDYAUSIKU CJ, In Chambers, in terms of Rule 31 of the Rules of the
Supreme Court
This
is a Chamber application for the condonation of the late noting of an
appeal. Although the applicant does not specifically aver this, I
shall assume that the application is made in terms of Rule 31 of the
Supreme Court Rules (“the Rules”).
On
25 July 2005 SANDURA JA, sitting with MALABA JA and NDOU AJA, issued
the following order:
“WHEREUPON,
after reading documents filed of record and hearing counsel, IT
IS ORDERED THAT:
The
matter be struck off the roll with costs.”
The
record reveals that both parties were present, and the record of
SANDURA JA, who presided over the matter, indicates that the matter
was struck off the roll because the notice of appeal was filed out of
time and no application for condonation had been made.
Because
of the multiplicity of cases involving the same parties, it is
important to understand that the Court was seized with appeal case
no. SC236/2000, which was an appeal against judgment no. HB-44/2000.
Where
an appeal is noted out of time, before the matter can be heard by
this Court an application for condonation has to be made and such
condonation granted before the appeal can be entertained. A matter
that is set down for hearing without condonation being first granted
will be struck off the roll, as happened in this case.
On
14 and 18 July 2000 the applicant filed a Chamber application for
directions before KAMOCHA J. He handed down judgment dismissing the
application on 20 July 2000. The judgment is judgment number
HB44/2000.
Over
a year after the handing down of the judgment, on 21 August 2001, the
applicant filed a notice of appeal against the judgment of KAMOCHA J.
The headnote of that notice of appeal reads as follows:
“Take
notice that the applicant hereby appeals against the judgment of the
High Court No. HB-44/2000, in terms of which the Honourable Judge
dismissed the applicant's application for discharge of the
provisional order in case number HC5207/99 with costs on the grounds
and reasons detailed below.”
Apart
from the fact that the above notice of appeal does not comply with
the Rules, in particular Rule 29(a) and (c) in that it does not give
the date when the judgment was delivered nor state whether the appeal
is against the whole or part of the judgment, and is therefore
invalid, it was filed way out of time.
The
applicant was appealing against the judgment of KAMOCHA J (no.
HB44/2000) which had been handed down on 20 July 2000 and not any of
the other judgments involving the same parties of which there are
several. Thus the Court was seized with an appeal against judgment
no. HB44/2000 and no other matter.
The
applicant in his submissions to the Court alleges that he filed a
notice of appeal against this judgment, no. HB44/2000, on 15 August
2000 and that the above notice of appeal of 21 August 2001 was an
amendment to the notice of appeal filed on 15 August 2000.
The
alleged notice of appeal of 15 August 2000 is not on the record.
The
notice of appeal of 21 August 2001, cited above, is not an amendment
but a notice of appeal on its own.
However,
even if I were to accept that the applicant did file a notice of
appeal on 15 August 2000, that notice of appeal would have been out
of time. Judgment HB44/2000 was handed down on 20 July 2000, and,
according to my calculations, the dies
induciae
for
noting an appeal expired on 10 August 2000.
Thus,
the notice of appeal filed on 15 August 2000 was outside the fifteen
days prescribed by the Rules of the Supreme Court.
Thus,
whichever of the two dates one accepts as the date for the filing of
the notice of appeal makes no difference. Both dates were outside the
dies
induciae.
Consequently,
the striking off of the matter from the roll admits no doubt.
The
applicant contends that the matter should not have been struck off
the roll and impugns the integrity of the Court for striking the
matter off the roll. I shall revert to this aspect of the matter
later.
Ten
months after the appeal was struck off the roll, on 17 May 2006, the
applicant filed the present application for condonation of the late
noting of an appeal.
The
Rules of this Court provide that condonation for the late noting of
an appeal can be granted upon the establishment of a good cause.
It
is well settled that the essential elements of a good cause are:
(a)
a reasonable explanation for the failure to file the notice of appeal
within the prescribed period;
(b)
some prospect of success on the merits; and
(c)
the bona
fides
of
the application.
REASONABLE
EXPLANATION FOR THE FAILURE TO NOTE THE APPEAL IN TIME
The
applicant's application for condonation in this case consists of
unwieldy voluminous affidavits, submissions and attached documents.
The voluminous application for condonation does not provide the one
thing that is critical to the applicant's case, namely the
explanation for the applicant's failure to file the notice of
appeal in the time prescribed by the Rules.
Without
such an explanation it is difficult to see how a Judge can grant the
applicant the indulgence or condonation sought.
The
applicant in para 7.4 of the founding affidavit makes the following
averment:
“The
Appellate Judge did not appreciate the fact that judgment Number
HB44/2000 was uplifted on 3 August 2000; that the original Notice of
Appeal in SC236/00 was filed on 15 August 2000; that the notice of
amendment of the grounds of appeal was filed on 3 August 2001 and the
fact that the Appeal Number is SC236/00 and not SCA236/01.
The
Appellate Judge did not appreciate the fact that the main action
matter number HC4295/98 and its allied application HC5207/99 were
consolidated into one matter and that condensed arguments in both
applications were presented on 14 July 2000. Therefore there was no
need to apply for leave to appeal or for condonation to appeal out of
time, as there was nothing interlocutory about HC5207/99 and since
the CHEDA J (as he then was) Orders and Judgments must not have been
at all, as the respondent had recovered her $20,384.”
The
applicant suggests the matters between the parties had been
consolidated. The record shows no order consolidating the cases.
Cases
do not consolidate on the mere say so of the litigant.
This
near meaningless averment is the nearest that can be described as an
explanation proffered by the applicant for the failure to file the
notice of appeal on time.
The
above averment falls far short of discharging the onus
on
the applicant to provide a reasonable explanation for his failure to
comply with the Rules. In my view, the above averment is no
explanation at all. If anything, the suggestion in para 7.4 is that
dies
induciae
should
run from 3 August 2000 because that is when the applicant became
aware of the judgment.
That
contention is untenable and unacceptable.
The
applicant has not provided an acceptable reason for his failure to
comply with the Rules and on this basis alone the application for
condonation must fail.
However,
even if I were to accept that the applicant filed his alleged notice
of appeal, which is not on the record, within five days of the dies
induciae,
and therefore should be given some latitude, I would still dismiss
this application on the basis that it has no prospects of success on
the merits.
PROSPECTS
OF SUCCESS ON THE MERITS
As
I have already stated, the appeal that was before the Court and that
was struck off the roll was the appeal against judgment no.
HB44/2000. In that judgment KAMOCHA J dismissed a Chamber application
for directions by the applicant.
Judgment
no. HB-44/2000 is very brief and to the point.
The
judgment very ably sets out the facts of this case and the reasoning
behind the learned Judge's conclusion. I can do no better than
refer to it extensively. It reads in part as follows:
“For
convenience, the parties in this matter will be referred to as Fuyana
and Ntombaza.
On
14 October 1998 Ntombaza obtained a provisional order whose terms
inter
alia
barred
Fuyana from taking transfer of Stand Number 11747 Nkulumane from one
William Ndlovu who had allegedly sold the same property to Ntombaza
using Fuyana as his agent. Ntombaza was also granted rights to
re-occupy the house as she had been in occupation before the said
house had been damaged by one Jericho Maphosa.
Fuyana
filed his notice of opposition but did not anticipate the return
date.
Exactly
a year later, on 14 October 1999, Ntombaza made an ex
parte
application
seeking for (sic)
an order converting the papers in the first application to pleadings
and the matter (to be) referred to trial. The parties were allowed to
file further pleadings within fourteen days of the order if they so
desired.
This
application to refer the matter to trial was served on the legal
practitioners of Fuyana on 8 October 1999.
There
seemed to be no opposition from Fuyana's legal practitioners and
the application was granted six days after it had been served.
To
illustrate the confusion that reigned in Fuyana's camp a belated
attempt to oppose the application was made by Fuyana himself, not
through his lawyers.
Ntombaza
asserted that Fuyana's legal practitioners had agreed that the
matter be referred to trial.
I
am inclined to agree with her because if what she asserted was not
true Fuyana's legal practitioners would have filed an affidavit
denying that they had agreed to the matter being referred to trial
with the terms of the provisional order standing.
When
the court granted the application it must have been satisfied that
the matter was not capable of being resolved on the papers filed of
record. It then issued an order which has not been rescinded. The
matter has been settled and yet Fuyana still calls upon the court to
interfere.
The
court had concluded that a robust approach could not be adopted in
this particular case to resolve the matter on the papers in the light
of the numerous disputes of fact therein. But Fuyana still lodged
this application requesting the court to discharge the provisional
order in question. He also wanted Ntombaza and all persons claiming
through her to be ordered to vacate Stand 11747 Nkulumane within
forty-eight hours of service on them of the order, failing which the
Deputy Sheriff be ordered to evict them and their possessions.
Fuyana
is clearly abusing court process and this court should express its
displeasure by ordering him to pay punitive costs.
In
the result, the application is dismissed with costs on an
attorney/client scale.”
It
is difficult to see on what possible basis a Court of Appeal can
interfere with the above judgment more so having regard to the
grounds of appeal contained in the notice of appeal.
The
reasoning and the conclusion of the learned Judge, in my view, are
flawless and there is no prospect of an Appeal Court differing from
the learned Judge. The notice of appeal filed by the applicant is no
more than a series of senseless assertions that the learned Judge
misdirected himself on this fact or on that point of law. The notice
of appeal raises nothing worth serious comment or consideration.
I
would also add that KAMOCHA J was dealing with an application for
directions by the applicant.
The
heading of the application specifically indicates that the
application before the learned Judge was one for directions. An
application for directions, as the word implies, is an application
seeking directions on how to proceed in the main proceedings, usually
the trial. Order 23 and Rule 152 clearly set out the purpose and
content of an application for directions.
The
application before KAMOCHA J, although headed application for
directions, sought to canvass issues between the same persons
referred to trial by another judge. The draft order attached to the
application for directions sought substantive and not procedural
relief.
In
my view, an application for directions that seeks in its draft order
the eviction of the respondent from the premises is totally
misconceived and should have been dismissed on that basis alone
without much ado.
The
merits of the case involving the agreement of sale which the
applicant is harping on ad
nauseum
could
only be resolved properly at a trial. The judge in the previous
proceedings was quite correct in referring the issues for trial. This
was done with the consent of the applicant's legal practitioner and
therefore with the consent of the appellant. The learned Judge, in my
view, was correct in ordering the matter to go to trial.
It
would appear from the record that the trial did not take place
because the applicant was in default.
Where
a default judgment has been granted, the recourse open to an
aggrieved party is to apply for rescission of the judgment.
It
may well be that the applicant applied for rescission of the
judgment; that is not very clear on the record. But whatever the
applicant's grievance may have been in respect of those
proceedings, they are totally irrelevant to the filing of an appeal
against the judgment of KAMOCHA J.
I
am satisfied that the applicant has no prospects of successfully
appealing against the judgment of KAMOCHA J, No. HB44/2000. On that
basis alone, even if I were to forego the failure to note an appeal
on time, this application must fail.
Before
concluding, I would like to make the following observations:
voluminous submissions, affidavits and documents relating to the
validity or otherwise of an agreement of sale and the issue and
status of the agreement of sale, were filed in this application for
condonation. These were totally irrelevant to the issues I need to
determine in this case, namely, whether or not KAMOCHA J was correct
in dismissing an application for directions seeking the discharge of
a provisional order which had already been referred to trial by
another Judge.
It
is trite that supporting affidavits in an application should contain
essential averments in support of the relief claimed.
The
papers filed in this case bear no resemblance to the above
requirement. For instance, the founding affidavit and its attachments
run into some forty pages, yet there is no explanation as to why the
notice of appeal was not filed in time. Further, as part of the
application a bundle of documents of about seventy pages headed
'Evidence' was filed. Another bundle of documents entitled
'Supporting Heads of Argument', consisting of not less than
fifty-five pages was also filed. A good part of the so-called
'Supplementary Heads of Argument' is devoted to principles of
what the applicant called 'Advocacy', 'Advocacy A Code of
Conduct', 'Objections in
limine'.
A
long list of the cases that were cited and summarised in the
supplementary heads of argument had no bearing on the application for
condonation of the late noting of an appeal.
There
was also another bundle of documents filed in this application headed
'Civil Appeal'. This bundle of documents amounted to some forty
pages and consisted of what the applicant called 'Opening Speech',
'Consolidated Heads' and 'Closing Speech'.
In
brief, this application was overloaded with rubbish.
Worse
still, after hearing this matter I reserved judgment. The applicant,
without the leave of the Judge, filed yet another lengthy document,
in which he sought to explain why the notice of appeal was not filed
on time and to lecture me on how a CHIEF JUSTICE should discharge his
duties and his intention to write a book about this case.
I
have completely disregarded this document, as it was improperly
placed before me. The application stands or falls on the founding
affidavit. It is not open to litigants to file affidavits in complete
disregard of the Rules.
Apart
from this, the applicant has impugned the integrity of virtually all
the Judges who handled this case.
There
is absolutely no basis for impugning the integrity of the Judges who
have handled this case. This case constitutes the most blatant abuse
of court process I have ever come across. This kind of abuse of court
process is unacceptable.
It
is also apparent from the record that the applicant was imprisoned
for contempt of court for refusing to obey a court order in respect
of proceedings involving the same parties to this application. The
inescapable inference is that the applicant has very little regard
for court process.
It
is quite apparent from the nature of the documents filed in these
proceedings that the applicant is conducting himself in this manner
at the instance of or with the assistance of some 'bush lawyer'
with very limited knowledge of the law and the procedures of the
courts.
Be
that as it may, I hold the applicant accountable for this abuse of
court process and warn him of the risk of an order of perpetual
silence.
In
the meantime there is need for the Court to protect its process from
this kind of abuse.
The
Court has inherent jurisdiction to regulate its own processes, which
it can use to protect its process from abuse. See De
Villiers and Anor v McIntyre NO
1921
AD 435.
In
the exercise of that jurisdiction, I will therefore issue the
following directive:
“THAT
the applicant is barred from commencing any litigation concerning the
disputed sale of Stand No. 11747 Nkulumane, Bulawayo, without first
obtaining the leave of a Judge of the High Court or this Court.”
For
the foregoing reasons, the application is dismissed. There will be no
order as to costs as none was asked for.
