CHAMBER
APPLICATION
MWAYERA
JA:
This
is an opposed chamber application for condonation and extension of
time within which to note an appeal in terms of Rule 43 of the
Supreme Court Rules 2018. The applicant intends to appeal against the
whole judgment of the High Court handed down on 7 July 2017.
FACTUAL
BACKGROUND
The
brief background of the matter has to be put into perspective. In
December 2015 the first respondent sought an order of ejectment and
an interdict against the applicant and the second to the twenty-first
respondents from Dorithmore and Stanley Farms. The applicant and
second to twenty-first respondents unsuccessfully opposed the
application which was granted by the High Court.
The
first respondent is by virtue of an offer letter from the relevant
ministry, the lessee of Dorithmore Farm measuring 3149.506 hectares
in extent and Stanley Farm measuring 5631.007 hectares in extent.
The
applicant and second to twenty first respondents were held to be
illegally occupying the first respondent's farms since they did not
have any offer letters, permits or lease agreements authorising them
to occupy the land in question.
The
twenty first respondent Mr Livingston Nyamadzawo was the only
respondent with an offer letter. The offer letter however related to
a different piece of land and not the first respondent's farms. The
said offer letter issued to the twenty first respondent was in
respect of subdivision 1 of Clinton Farm measuring 46.88 hectares and
was subsequently withdrawn.
Thus
nothing entitled the applicant, the twenty first respondent and the
second to twentieth respondents to occupy the first respondent's
Farms.
The
court a
quo
made a finding that the reliance on the withdrawn offer letter which
related to a different piece of land other than that of the first
respondent was not tenable.
The
applicant and second to twenty first respondents had no offer
letters, or permits or lease agreements entitling them to remain in
occupation of Stanley Farm.
The
court a
quo
thus held the applicant and second to twenty first respondents to be
unlawfully encroaching and occupying the first respondent's
property.
The
court a
quo
on that premise granted the application for ejectment and interdicted
the applicant and second to twenty first respondents and all those
claiming occupation through them from entering the first respondent's
farms.
The
applicant was irked by the decision of the court a
quo
and thus instructed his erstwhile legal practitioners to note an
appeal on his behalf.
The
appeal was not noted and upon realising the anomaly that no appeal
had been lodged timeously, the applicant filed the present
application for condonation of non-compliance with the rules and
extension of time within which to note an appeal.
On
the date of hearing the first respondent's counsel, Mr Tundu
raised the issue about the delay in filing the answering affidavit by
the applicant. Mr Sithole
for the applicant conceded that the answering affidavit had been
filed out of time (4–5 days late).
By
consent the parties agreed that condonation for the late filling of
the answering affidavit be granted. In view of the satisfactory
explanation for the delay coupled with the fact that the delay was
just by a few days the court acceded and condoned the late filing of
the answering affidavit.
APPLICANT'S
SUBMISSIONS
Mr
Sithole
for the applicant submitted that although the applicant was about 4
years late in noting his appeal he should be condoned as he met all
the requirements for condonation.
Counsel
argued that the delay was not deliberate but occasioned by the fact
that Mr Mutebere
the
applicant's erstwhile legal practitioner who had been instructed to
note an appeal, did not do so. The applicant subsequently lodged a
complaint to the Law Society of Zimbabwe registering his concerns on
Mr Mutebere's
conduct.
According
to the applicant Mr Mutebere
had
ditched him at the last minute resulting in proceedings a
quo
being conducted with the applicant as a self-actor.
The
applicant upon losing the case instructed Mr Mutebere
to note an appeal and was unaware that his instructions for an appeal
to be noted had not been pursued and only became aware at the time of
eviction.
Further,
in argument the applicant's counsel submitted that the explanation
for the delay was reasonable considering that it was not of the
applicant's own making but rather the negligence of his then legal
practitioner.
He
also submitted that the application should be granted as the
applicant has prospects of success on appeal.
Mr
Tundu
for the first respondent contended that the delay of 4 years was
inordinate. He pointed out that the applicant's explanation was not
genuine. The applicant was aware of the decision of the court a
quo
but did not note an appeal. Even if he had instructed his erstwhile
counsel to note the appeal and same did not pursue the client's
instruction he had thereafter become aware that no appeal had been
noted as far back as June 2017 when eviction was effected by the
Sheriff. When the applicant and others reinvaded the farms, contempt
of court proceedings were instituted and the applicant instructed new
legal practitioners Messrs Chambati,
Mataka and Makonese.
All
these events, he submitted were a clear indication that no appeal had
been lodged against the judgment a
quo
and that judgment was not suspended.
The
first respondent's counsel in short submitted that it follows that
the applicant was aware that no appeal had been lodged. In the
circumstance hiding behind the fact that Mr Mutebere
was
later deregistered by the Law Society cannot be a reasonable
explanation for non-compliance with the rules.
Mr
Tundu
further argued on behalf of the first respondent that the applicant
enjoyed no prospects of success at all on appeal. He further
submitted that from the factual background, it is clear that the
applicant and second to twenty first respondents have no legal basis
to be on respondent's farms or to interfere with the farms. The
first respondent has an offer letter confirming entitlement to the
farms in question whereas the applicant has no offer letter, permit
or lease agreement justifying occupation of the first respondent's
farm.
The
first respondent's argument that the applicant enjoys no prospects
of success on appeal was thus anchored on the factual background as
chronicled by the court
a quo
in its judgment ejecting the applicant, the second to twenty first
respondents and others claiming occupation through them from the
farms.
The
Issue
The
issue that falls for determination in this application is whether or
not the applicant has met the requirements for the granting of
condonation and extension of time within which to appeal. Put
differently the question really is whether or not the applicant has
established sufficient cause warranting this Court to grant the order
sought.
APPLICATION
OF THE LAW TO THE FACTS
In
considering whether or not to grant the indulgence sought, the court
has to consider the following established factors cumulatively:
1.
The extent of the delay.
2.
The reasonableness of the explanation for the delay.
3.
The prospects of success.
4.
The interests of administration of justice.
These
factors are clearly set out in a number of cases in this
jurisdiction. In Mzite
v Damafalls Investments (Pvt) Ltd and Anor
SC21/18 BHUNU JA echoed the same requirements as outlined in Kombayi
v Berkhout
1988 (1) ZLR 53 (S).
Herbstein
and Van Winsen in The
Civil Practice of The Supreme Court of South Africa
4th
ed by Van Winsen, Cilliers and Loots pp897-898 set out the
requirements as follows:
“Condonation
of non-observance of 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 mere
asking but proper judicial discretion and upon sufficient and
satisfactory grounds being shown by the applicant.
(underlining my emphasis)
In
the determination whether sufficient cause has been shown, the basic
principle is that the court has a discretion to be exercised
judiciously upon consideration of all the 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 interest of justice.
The
factors usually weighed by the court in considering applications for
condonation include;
(i)
the degree of non-compliance;
(ii)
the explanation for it;
(iii)
the importance of the case;
(iv)
the respondent's interests in the finality if its judgment;
(v)
the convenience of the court; and
(vi)
avoidance of unnecessary delay in the administration of justice.”
Having
spelt out the relevant considerations in an application for
condonation what remains is for me to relate the requirements to the
facts of the matter at hand.
1.
THE EXTENT OF THE DELAY AND EXPLANATION THEREOF
The
applicant's application for condonation and extension of time was
filed on 10 May 2021 a period of almost 4 years from the date of
judgment.
The
explanation proferred by the applicant that he was not aware that his
lawyer had not filed the appeal is discarded as not being genuine.
It
is common cause that the noting of an appeal against the High Court
order would have the automatic effect of suspending the order.
The
fact that the applicant and the other respondents were ejected in
compliance with the order and that the applicant further re-invaded
the first respondent's farms is a clear indication that there was
no appeal noted much to the full knowledge of the applicant.
The
reinvasion after ejectment was followed by contempt of court
proceedings which the applicant contested.
The
contempt of court proceedings were actuated by none compliance with
the extant court order.
All
these factors display that the applicant was not being sincere with
the court when he stated that he was not aware that his then legal
practitioner had not noted an appeal against the ejectment and
interdict order.
In
the circumstances the delay of almost 4 years is certainly
inordinate. The applicant has not been candid with the court
regarding the 4 years delay.
2.
PROSPECTS OF SUCCESS ON APPEAL
It
is settled in applications for condonation that the delay,
explanation thereof and prospects of success on appeal should be
holistically considered by the court exercising discretion whether or
not to grant the indulgence.
Prospects
of success entail that there is a reasonably arguable case depicted
from the grounds of appeal. The prospects of success on appeal have
to be realistic and not remote. Once there is a sound, and rational
basis that the case is arguable on appeal then there are prospects of
success warranting the indulgence to be granted.
In
casu
the main issue for determination is whether or not the court a
quo
erred in issuing an order of ejectment and an interdict against the
applicant and those claiming occupation through him.
It
is apparent from the factual background of the matter that the
applicant has no basis for being on the first respondent's farms.
The applicant has no offer letter, lease agreement or permit
entitling him to the applicant's farms. It is clear that the
applicant sought to ride on an affidavit by the twenty first
respondent Livingstone Nyamadzawo whose offer letter related to
a different piece of land and had been withdrawn as at the time of
hearing in the court a
quo.
The
applicant simply has no legal basis to cling on to and interfere with
first respondent's farms.
The
court a
quo
rightly and correctly found no reason not to grant ejectment.
Considering the circumstances of the matter the applicant does not
enjoy any prospects of success on appeal.
Upon
considering the period of delay of noting the appeal of almost 4
years together with the totality of the circumstances one cannot fail
to note that the delay was inordinate and the explanation for the
delay unreasonable. That, coupled with the fact that the applicant
has no legal basis for being on first respondent's farms is a clear
indication that the intended appeal enjoys no prospects of success.
The application must fail. Costs will follow the cause.
DISPOSITION
Accordingly
it is ordered that:
The
application for condonation of non-compliance with Rule 43 of the
Supreme Court Rules 2018 and extension of time within which to appeal
be and is hereby dismissed with costs.
Makiya
& Partners,
appellant's legal practitioners
Chihambakwe
Mutizwa & Partners,
1st
respondent's legal practitioners
Civil
Division of the Attorney General's Office,
22nd
respondent's legal practitioners
