IN
CHAMBERS
CHITAKUNYE
AJA: This
is an opposed chamber application for condonation of non-compliance
with the Supreme Court Rules, 2018 and for extension of time within
which to appeal.
Though
at the outset the applicant did not state the rule that was not
complied with and the rule under which this application is brought,
it is apparent from the founding papers that the rule not complied
with is r38(1)(a) and the application is in terms of r43(1) of the
aforesaid rules.
The
intended appeal is against a judgment of the High Court handed down
on 29 October 2020 upholding special pleas and dismissing the
applicant's claim.
The
applicant seeks an order in the following terms:
1.
The application for condonation for non-compliance with the Supreme
Court Rules, 2018 be and is hereby granted.
2.
That the application for extension of time within which to file and
serve the appeal in terms of the rules be and is hereby granted.
3.
The appeal shall be deemed to have been filed on the date of this
order.
4.
There will be no order as to costs.
BACKGROUND
The
applicant issued summons against the respondents on 9 June 2020
seeking an order:
(a)
that the agreement of sale between the applicant and the first
respondent be declared valid and still operational;
(b)
declaring the agreement of sale that was entered into between the
first, second and third respondents null and void;
(c)
nullifying the transfer of title of land by the fourth respondent
into the third respondent's name; and
(d)
that respondents pay costs of suit.
The
facts giving rise to the above claim may be encapsulated as follows:
The
applicant entered into an agreement of sale with the sellers of an
immovable property described as Lot number 17 Weirmouth Small
Holdings of Weirmouth on 23 June 2014, namely Laureen Tatenda Mvududu
and Maureen Mazviita Middleton.
The
first and second respondents acted as agents for the sellers in the
transaction.
The
agreement was in the names of the sellers.
The
agreement of sale was subsequently cancelled and the applicant was
advised of the same on 14 September 2015.
On
22 January 2016 that same property was sold to the third respondent
through the agency of the first and second respondents.
Transfer
was subsequently effected to the third respondent in that same year.
In
his suit the applicant did not cite the sellers upon whose mandate
the first and second respondents acted.
The
three cited respondents filed special pleas seeking the dismissal of
the applicant's claim.
The
first and second respondents sought the dismissal of the claim on the
grounds that the claim had prescribed, that they had been wrongly
cited, that the matter was res
judicata
and lis
pendens.
The
third respondent also sought the dismissal of the claim on the
grounds that the claim had prescribed, the matter was res
judicata
and that the applicant was estopped from claiming the setting aside
of the third respondent's title deeds.
The
applicant argued that the claim has not prescribed and that the
matter was neither res
judicata
nor lis
pendens.
He
also argued that the sale to the third respondent was not above
board. He alleged that the sale to the third respondent was
fraudulent since there was no proper cancellation or termination of
the sale agreement between him and the sellers.
The
issues for determination on the special pleas were as follows:
(i)
Whether or not the claim had prescribed;
(ii)
Whether or not the matter was res
judicata;
(iii)
Whether or not the matter is lis
pendens;
(iv)
Whether or not the non-joinder of the former registered owners who
sold the immovable property to the third respondent was fatal to the
claim; and
(v)
Whether or not the applicant was estopped from claiming the setting
aside of third respondent's title deeds.
After
hearing submissions on the special pleas, the court a
quo
noted that the issue of lis
pendens
was not persisted with as the case that had given rise to it namely
HC67/2020 had since been withdrawn by the applicant.
The
court a
quo
proceeded to make a determination on the other grounds.
It
held that the first and second respondents, being the agents who
facilitated the sale and subsequent transfer of property to the third
respondent for and on behalf of their principals, were unnecessarily
joined to the action procedure.
The
sellers and transferors having been known their non-joinder in the
case was thus fatal.
The
non-joinder was coupled with misjoinder of the first and the second
respondents who were discharging legal functions for and on behalf of
their principals; there was therefore no valid claim against them.
The
court further held that, in terms of the Prescription Act [Chapter
8:11]
section 15(d), the claim should have been made within 3 years of the
cause of action.
The
judge a
quo
reasoned that the cause of action arose in 2015 when the applicant
was notified of the cancellation of his agreement of sale with the
sellers. It was also noted that despite knowledge that the property
had subsequently been sold and transferred to the third respondent in
2016, the applicant had not acted to protect his perceived interests
till June 2020 when he issued the summons in question.
In
upholding the special pleas the court a
quo
stated thus:
“Considering
the totality of submissions it is clear that the cancellation of the
sale agreement between the Plaintiff and the first and second
defendants principals was communicated as early as 2015. Further
communication in 2016 and subsequent sale of the property to third
defendant, culminating in transfer in 2016 was to the knowledge of
the Plaintiff. The Plaintiff despite the knowledge did not take
action until June 2020 when he issued summons. The Defendants special
plea that the Plaintiff's claim must be dismissed on the basis of
prescription, estoppel, non-joinder and misjoinder is well supported
by the facts of this matter. The special pleas must succeed.”
Accordingly,
the applicant's claim was dismissed.
The
applicant was aggrieved by the decision of the court a
quo.
In
terms of r38(1)(a) he ought to have noted his appeal within 15 days
from the date of judgment. He was unable to do so hence this
application for condonation of non-compliance with the rule and
extension of time within which to appeal.
APPLICANT'S
SUBMISSIONS
The
applicant submitted that he only became aware of the judgment on 2
November 2020.
He
further submitted that the reason for the late noting of the appeal
was that he had assumed that he could file the appeal within 30 days
of that date. As a result of that assumption he attested to the
founding affidavit on 21 December 2020. When he later approached
court to inquire on the matter he was informed that he was out of
time as the dies
induciae
was 15 days.
The
applicant did not, however, disclose the date he approached court.
It
could certainly not have been before 21 December 2020.
He
conceded that he had failed to give a reasonable explanation for the
delay between 21 December 2020, when he attested to the affidavit,
and 31 March 2021 when he filed the present application.
He,
in fact, acknowledged that he had not rendered any explanation for
that latter period of the delay.
The
applicant averred that he, however, had bright prospects of success
on appeal because the court a
quo
had failed to deal with the issues on the merits.
RESPONDENTS
SUBMISSIONS
All
the respondents opposed the application and contended that the delay
was inordinate and the applicant had not proffered a reasonable
explanation for the delay.
They
also contended that there were no prospects of success on appeal as
not only were the grounds of appeal defective but they, in fact, did
not impugn the decision of the court a
quo
in upholding the special pleas.
As
far as the respondents were concerned the applicant has not met the
requirements for condonation of failure to file the appeal in time
and for an extension of time within which to file the notice of
appeal.
Both
Counsel for the respondents were in unison on these submissions.
Counsel
also submitted that the applicant had approached the court on the
wrong rule, as he had made reference to rr30 and 38 in the
application.
They
further submitted that the applicant had been very provocative in his
language and relentless in the manner in which he approached the
courts, which amounts to an abuse of court process.
The
applicant had virtually attacked court officials including the Judge
a
quo
on matters that had not been placed before that court.
They
thus prayed that the application be dismissed with costs on a higher
scale as a measure of censure and to caution the applicant to take
court business seriously and desist from bitter and paranoid conduct.
ISSUE
FOR DETERMINATION
The
issue for determination is whether or not the applicant has
established sufficient cause for the grant of the order sought.
APPLICATION
OF THE LAW TO THE FACTS
It
is trite that where a litigant realises that they have fallen foul of
court rules, they ought to apply for condonation without delay. The
litigant must give an acceptable explanation for the failure to
comply with the particular rule and for the delay in approaching
court seeking condonation. See Viking
Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited
1998 (2) ZLR 249 (S) at 251.
One
must be candid with the court in their explanation in order to
satisfy the court that the explanation is reasonable and deserves the
court's empathy and that there are prospects of success on appeal
if granted the indulgence.
In
Kodzwa
v Secretary for Health & Anor
1999 (1) ZLR 313 (S) at 315B-E, the court aptly indicated that:
“The
factors which the court should consider in determining an application
for condonation are clearly set out in Herbstein
& van Winsen's The Civil Practice of the Supreme Court of South
Africa 4ed by van Winsen, Cilliers
and Loots at pp897-898 as follows:
'Condonation
of the non-observance of the rules is by no means a mere formality.
It is for the applicant to satisfy the court that there is sufficient
cause to excuse him from compliance...
The
court's power to grant relief should not be exercised arbitrarily and
upon the mere asking, but with proper judicial discretion and upon
sufficient and satisfactory grounds being shown by the applicant.
In
the determination whether sufficient cause has been shown, the basic
principle is that the court has a discretion, to be exercised
judicially upon a consideration of all facts, and in essence, it is a
matter of fairness to both sides in which the court will endeavour to
reach a conclusion that will be in the best interests of justice.
The
factors usually weighed by the court in considering applications for
condonation… include; the degree of non-compliance; the explanation
for it; the importance of the case; the prospects of success; the
respondent's interest in the finality of his judgment; the
convenience of the court; and the avoidance of unnecessary delay in
the administration of justice.'”
In
Bessie
Maheya v Independent Africa Church
SC58-07, MALABA JA (as he then was) at p5 reiterated the position as
follows:
“In
considering applications for condonation of non-compliance with its
Rules, the Court has a discretion which it has to exercise judicially
in the sense that it has to consider all the facts and apply
established principles bearing in mind that it has to do justice.
Some of the relevant factors that may be considered and weighed one
against the other are: the degree of non-compliance; the explanation
therefor; the prospects of success on appeal; the importance of the
case; the respondent's interests in the finality of the judgment;
the convenience to the Court and the avoidance of unnecessary delays
in the administration of justice.”
It
is pertinent that the application must be bona
fide
and be premised on relevant factors. The applicant must be candid
with the court on the factors he/she seeks to rely on in the
application. In casu,
the applicant sought to rely on:
(i)
the extent of the delay, which he deemed not inordinate;
(ii)
the explanation for the delay; and
(iii)
prospects of success.
These
factors must be considered in their proper perspective.
EXTENT
OF THE DELAY AND THE EXPLANATION THEREOF
The
applicant intends to appeal against an order handed down
on
29 October 2020. He was supposed to file his notice of appeal within
fifteen days of that date. The dies
induciae
fell on 19 November 2020.
He
failed to note the appeal by that date.
The
applicant avers that he only became aware of the judgment on 2
November 2020. The present application for condonation was filed on
31 March 2021, 4 months 8 days out of time.
It
was incumbent upon the applicant to explain the delay in noting the
appeal and in filing this application for condonation.
The
applicant's explanation as noted above was that he assumed he had
thirty days within which to file his appeal. He did not, however,
state the basis for that assumption. Other than that, he also did not
explain why he did not note the appeal or even attempt to file the
notice of appeal within his assumed 30 days which lapsed on 14
December 2020.
Instead
he confirms by virtue of his founding affidavit that he only took
action after the 30 day period when he attested to the founding
affidavit on 21 December 2020.
He
did not proffer any explanation for the period after his 30 days
lapsed to 21 December 2020 and the further delay from 21 December
2020 to 31 March 2021 when he filed the present application.
When
asked about the lack of explanation for this period, the applicant
could not provide any.
In
my view, the applicant was not being candid with court in his
explanation for the delay hence he could not account for the periods
in question. In the circumstances the extent of the delay in bringing
this application is inordinate and the explanation tendered for the
delay is also unreasonable.
PROSPECTS
OF SUCCESS ON APPEAL
It
is settled that where no acceptable explanation for non-compliance
with the rules has been given by an applicant seeking condonation for
the late noting of an appeal, one must at the very least show very
good prospects of success if the indulgence is to be granted. See
Mahachi
v
Barclays
Bank of Zimbabwe
SC6/06;
and Kombayi
v Berkout
1988 (1) ZLR 53 (SC).
The
applicant is required to show that he has an arguable case on appeal.
In
Essop
v S
[2014]
ZASCA 114, the court aptly stated the following at para 6:
“What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court.
In
order to succeed, therefore, the appellant must convince this Court
on proper
grounds that he has prospects of success on appeal
and
that those prospects are
not
remote, but have a realistic chance of succeeding.
More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that the case
cannot be categorised as hopeless. There must, in other words, be a
sound, rational basis for the conclusion that there are prospects of
success on appeal.”(my emphasis)
See
Dzvairo v Kango Products
SC35/17.
In
casu,
the main issue for determination is whether or not the court a
quo
erred in upholding the special plea and dismissing the claim as a
result.
For
an appeal to enjoy any prospects of success it must attack the
findings of the court a
quo
on the issues before it for determination. Grounds of appeal that do
not address or attack the findings upon which the determination was
made would have no prospects of success at all.
In
casu,
the court a
quo's
determination was on the special plea.
The
court a
quo
upheld the special plea and dismissed the applicant's claim on the
grounds that the claim had prescribed; that there was non-joinder and
misjoinder; and that the applicant was estopped from seeking the
setting aside of third respondent's title.
The
applicant's grounds of appeal do not attack any of the above
findings by the court a
quo.
Instead the purported grounds of appeal, defective as they are,
pertain to issues that were not argued before the court a
quo.
The
grounds of appeal are crafted as follows:
“1.
Non-Refund of the applicant's deposit of US$35,000 binds parties to
this agreement.
2.
The court a
quo
deliberately violated s74 of the Constitution. No competent court
ever heard this case which then ordered the cancellation of the
agreement of sale.
3.
Third respondent is a criminal accomplice as he bought a disputed
property well aware a dispute existed.
4.
The court a
quo
erred at law for deliberately non recuse (sic)
of herself in a case (the Judge) has interest in, second respondent
is an agent of the High Court Sheriff at Mutare High Court, fair
judgment is impossible.
5.
Conflict of interest as second respondent's duties as an Estate
Agent and an Agent of the Sheriff of the High Court are in conflict.
6.
Gross misconduct and criminal abuse of office by the Judge to preside
in a case she has interest in.
7.
Deliberate violations of the agreement of sale by the Judge, second
respondent has no power of attorney, the purported cancellation by
second respondent is unlawful and of no effect or force.
8.
The court a
quo
deliberately ignores double sale by first and second respondents to
third respondent.
9.
The court a
quo
cannot prove a breach, neither do respondents.
10.
The court a
quo
erred by assuming this case was brought to court in June 2020, when
in fact it was at the courts in August 2017. See annexure E.
11.
Fraudulent court orders, Annexures 'J' 0224983 and 'K'
HC2042/19 are a result of a fraudulent, Notice of set down urgent
chamber application Annexure 'I' HC1377/19 as it is not served on
the applicant. It has a wrong surname, wrong address and faxed at odd
hours of business, 2:11am.”
The
grounds of appeal do not challenge findings that he was advised of
the cancellation of the agreement of sale in 2015 hence when he filed
the summons in issue on 9 June 2020 a period of more than 3 years had
lapsed; that the first and second respondents were merely acting as
agents for the owners of the property who were known to the applicant
and so could not be sued in place of known principals; and that he
knew about the sale and transfer to the third respondent in 2016 and
so by the time he issued the summons in question a period of three
years had lapsed.
It
may also be noted that the relief that he seeks on appeal is on the
merits and is the same as in the summons.
The
relief is thus incompetent as it is premised on the merits of the
matter when the intended appeal ought to have been on the
determination on the special pleas.
Clearly
the applicant has lamentably failed to establish an arguable case on
appeal for which I can grant the order sought.
There
are no prospects of success at all.
The
respondents Counsel, in seeking costs on the higher scale, alluded to
the litigious nature of the applicant in spite of extant court orders
against him which he has not challenged and the fact that the
property in question was transferred to the third respondent in 2016
to his knowledge. Transfer
to the third respondent was effected more than three years ago yet
the applicant still drags respondents to court on unsustainable
claims.
In
this regard they submitted that the applicant has been constantly in
and out of the courts in a plethora of matters some of which were
referred to as case numbers HC1236/17, HC8602/17, HC1377/19,
HC2042/19, MUTP 3015-16/18, Mutare Magistrates Court 2102/17, not to
mention open files before the anti-corruption court, the Law Society
of Zimbabwe and the Judicial Service Commission Secretariat.
The
applicant clearly is very litigious and unrelenting despite advice
that his complaints were not sustainable.
It
is in the interests of justice that court proceedings be brought to
finality.
Competent
orders affording real rights to the third respondent remain extant as
the applicant has not appealed against them. They thus submitted that
applicant be mulcted with costs on a higher scale.
I
am inclined to agree with the respondents on this point.
The
applicant's Achilles' heel is his failure to seek appropriate
legal advice in pursuit of litigation. In the result, he has pursued
wrong causes just as in this case, whereby instead of appealing
against the findings by the court a
quo
on the special plea, he opted to attack issues that were not
determined by the court a
quo.
In
this regard during the hearing effort was made to direct him to the
real issues at hand as he had submitted heads of arguments unrelated
to the findings on the special plea.
The
applicant seems to be confused as to the extent of the issues he can
raise on appeal. He appears headstrong that this Court, if it is to
condone his non-compliance, should proceed to hear his cause on the
issues the court a
quo
did not hear at all.
The
inevitable consequence is that he has caused the respondents to
defend the spurious processes thus incurring unnecessary costs. The
respondents were thus justified in seeking costs on a punitive scale.
DISPOSITION
Accordingly,
it is ordered that -
The
application for condonation of non-compliance with the rules and
extension of time within which to appeal be and is hereby dismissed
with costs on the legal practitioner and client scale.
Henning
and Lock,
1st
and 2nd
respondent's
legal practitioners
Khupe
& Chijara Law Chambers,
3rd
respondent's legal practitioners
