Opposed
Matter
MANGOTA
J: I
set HC6264/21 down for hearing. The hearing was scheduled for 20
June, 2022. At the hearing, the applicant which was the respondent in
the case raised a preliminary point. It did so through counsel.
Its
in
limine
matter was that the first respondent (“the respondent”) which was
the applicant in the court a
quo
did not file its Heads within the dies
which TSANGA J issued to the parties on 4 February, 2022. It insisted
that the respondent was barred and could not, therefore, be heard
until it unbarred itself.
The
respondent opposed the preliminary point which the applicant raised.
It
admitted that it did not file its Heads within the dies.
It claimed that it had agreed with the applicant that both parties
would file their respective Heads outside the order which the court
issued to them.
It
unsuccessfully applied to uplift the bar.
Following
the submissions of the parties, I remained of the view that both of
them flouted the order of TSANGA J.
I
decided that they were both barred and were, therefore, improperly
before me. I, accordingly, struck HC6264/21 off the roll and ordered
that each party meets its own costs.
The
decision which I made constitutes the applicant's cause of action.
It filed this application for leave to appeal the same.
It
attached to the application its draft notice and grounds of appeal.
It remains of the view that I should not have made a finding which
was/is to the effect that it was barred. It insists that it could not
file its Heads without the respondent having filed its Heads first.
It claims that, once the respondent was barred, it no longer had any
obligation to file Heads or any further pleading other than to apply
that default judgment be entered against the respondent.
It,
accordingly, moves me to grant leave to it to appeal.
The
respondent opposes the application for leave to appeal. It insists
that the appeal has no merit and therefore has no reasonable
prospects of success.
It
alleges that both the applicant and it were improperly before the
court. Both parties, it asserts, were in contempt of court by virtue
of not obeying the court order which directed them to file their
respective Heads within certain time–frames.
It
argued, through counsel, that Part XVI of the High Court Rules, 2021
deals with such applications as the one which the applicant placed
before me. It placed reliance on Rule 94(8) as read with sub-rules
(1) and (2) of the same rule of court which sub-rules it claims are
peremptory. It asserts that the application for leave which,
according to it, does not comply with the mandatory rules of court,
is fatally defective and must therefore be dismissed with costs.
An
application for leave to appeal places the judge before whom it is
placed in an invidious position.
The
applicant, it would appear, will be inviting the judge to review his
own decision.
The
judge who takes the position of reviewing his own work falls into an
unfortunate situation where, at the hearing, he is tempted to make
common cause with the respondent.
He
should make every effort not to be tempted to agree with the
respondent at the detriment of the applicant. He should, at all
times, endeavor to be as objective as he humanly can.
His
guiding rod in the determination of such an application as the
present one is whether or not the applicant has reasonable prospects
of success on appeal: Pichanic
N.O. v Paterson,
1993 (2) ZLR 163 (H); Afrikaanse
Pers Beperk v Oliver,
1949 (2) SA 890.
Whether
or not the application is defective on the alleged ground which is to
the effect that the applicant did not comply with Rule 94 of the
rules of court will unfold itself upon an analysis of the said rule
as well as on a proper interpretation of the same.
Sub-rule
(8) of Rule 94 of the rules of court is relevant.
Its
import is that, where leave to appeal is necessary in respect of a
judgment given in a civil court, sub-rules 1–7 of the rule shall
apply to an application for leave to appeal….as if the words
'Prosecutor-General' there were substituted the word
'respondent'.
Sub-rule
(1) of Rule 94 stipulates that where leave to appeal is sought the
applicant:
(a)
may
apply orally immediately after judgment has been entered against it:
and
(b)
should state his grounds for the application.
Sub-rule
(2) of Rule 94 is to the effect that, where the applicant has not
made an oral application in terms of sub-rule (1), he may
file with the registrar a written application within twelve days of
the date of the judgment. The written application must, according to
the proviso which is in the sub-rule, state the reasons why the
application was not made in terms of sub-rule (1) of Rule 94 of the
rules of court.
It
is on the strength of the abovementioned sub-rules of Rule 94 of the
High Court Rules, 2021 that the respondent argued that the
application was/is defective.
It
submitted that the applicant violated sub-rules (1) and (2) as well
as the proviso to sub-rule (2) of Rule 94. It insists that both
sub-rules are peremptory and should, therefore, have been complied
with to the letter and spirit.
The
respondent's contention, it has been observed, is that the
application for leave is defective.
I
disagree.
Whilst
it is agreed that Rule 94 relates to applications for leave to
appeal, the rule is not peremptory as the respondent would have me
believe. It is optional or discretionary. Its use of the word 'may'
in each sub-rule says it all.
It
only becomes peremptory in paragraph (b) of sub-rule (1).
It
becomes mandatory in the sense that, once the applicant has taken the
option to apply orally for leave to appeal, he is enjoined by the
rule to state as well as record his grounds of the application as
part of the record. The net effect of paragraph (a) of sub-rule (1)
of Rule 94 is that he is at liberty to apply or not to apply orally
for leave to appeal.
Equally
of importance to the applicant is the discretion which sub-rule (2)
of Rule 94 confers upon him.
He
may,
or may
not,
file a written application with the registrar where he has not
exercised his right to apply for leave to appeal under sub-rule (1)
of Rule 94 of the rules of court. However, where he chooses to
exercise his right in terms of Rule 94(2), the proviso to the rule
imposes upon him certain conditions which he must comply with. He
must, for instance, state the reason why he refrained from exercising
his option in terms of sub-rule (1) of Rule 94. He must also state
the proposed grounds upon which he contends that leave to appeal
should be granted to him.
What
is evident, from a reading of sub-rules (1) and (2) of Rule 94 of the
rules of court is that the applicant has a choice to pursue his
options under either of the sub-rules but not both. What is also
clear is that, the moment he takes the one or the other sub-rule, his
performance under his chosen sub-rule becomes peremptory
leaving him with no choice but to act in accordance with the route
which he has taken.
The
rule remains silent where he does not pursue his rights in terms of
either sub-rule (1) or sub-rule (2).
It
follows, in my view that he can choose not to follow the one or the
other of the two sub-rules as the applicant did in
casu
and still be able to apply for leave to appeal under the common law.
The question which begs the answer is: can the application which he
filed outside Rule 94 of the rules of court be suggested to be
defective?
I
think cannot.
The
application remains as valid as the one which an applicant files
under Rule 94 of the High Court Rules, 2021. This application cannot,
therefore, be said to be defective. It is within the law, so to
speak.
For
the applicant to succeed in its application for leave to appeal, it
must demonstrate that it has reasonable prospects of success on
appeal.
In
laying down the test of reasonable prospects of success, the
authorities were only stating the obvious. The obvious is that it
would be a waste of the time of the court and that of the respondent
if the applicant were to appeal just for the fun of it. An appeal
which is filed without the applicant's serious intention to test
the correctness or otherwise of the decision of the court a
quo
is frivolous and vexatious. No court will sanction an application
which relates to such an appeal.
The
context of this application is relevant.
The
context is that, on 4 February 2022, Tsanga J before whom the parties
appeared set specific time-lines within which they were to file their
respective papers in preparation for the hearing of the matter. This
was scheduled to take place at 10am of 28 March, 2022. The learned
judge directed, among other directions, that:
(a)……………………………………
(b)………………………………………
(c)
the applicant a
quo
shall file its Heads on 16 February, 2022; and
(d)
the respondent a
quo
(applicant in
casu)
shall file its Heads on 2 March, 2022.
That
both parties filed their respective Heads outside the above-mentioned
time-lines requires little, if any, debate.
In
deciding as I did, I remained alive to the fact that the directions
of TSANGA J are, no doubt, an order of court which the parties had no
choice but to obey.
I
was further persuaded by case authority which discussed the issue
which the parties had placed before me.
It
is, for instance, trite that when a court order provides a time limit
within which to do something…such time limits ought to be followed.
Failure to comply with such time limits leads to lapsing of the
rights conferred therein: The
Sheriff of the High Court of Zimbabwe v Madziro
& Ors, HH670/15.
It
is a plain and unqualified obligation of every person against, or in
respect of whom the order is made by the court of competent
jurisdiction to obey it, unless and until that order is discharged;
and, as is known, two consequences flow from that obligation:
(i)
The first one is that anyone who disobeys an order of court is in
contempt and may be punished by committal or attachment or otherwise.
(ii)
The second is that no application to court by such person will be
entertained unless he has purged himself of his contempt: Artiknson
v Artkinson
(1952) 2 All ER 567 (CA).
By
not complying with the order of TSANGA J, both the applicant and the
respondent were, no doubt, in contempt of the court order.
None
of them could therefore be heard unless it purged itself of the
contempt.
I
found the applicant's finger-pointing at the respondent to have
been made without any serious intention on its part. This was a
fortiori
the case given that it did not, on its part, make any effort to live
within the four corners of the court order which the learned judge
issued to the respondent and it.
The
applicant premised the preliminary point which it raised on the order
of TSANGA J. It did not rest it on the rules of court as it seems to
suggest in its Heads. It submitted that the respondent did not comply
with the order of TSANGA J.
Its
reliance on Rule 59(21) of the rules of court is, therefore,
misplaced.
Because
it referred me to the order of the learned judge, the decision which
I made was not premised on the rules of court. It rested on the order
of the court.
The
specific time-lines which the learned judge dished out to the parties
aimed, in my view, at preparing them for the hearing which had been
scheduled for 28 March, 2022 at 10am. Their belated filing of Heads
had an adverse effect on the hearing of the application. It was only
fortuitous that it was not heard on the date to which it had been set
down. I found the conduct of the parties both of whom were/are ably
legally represented to be wanting in the extreme sense of the word.
The
applicant's reference to Rule 59(21) of the rules of court imports
a new dimension into the equation of the decision which I made in
June, 2022.
The
dimension centers on what parties to a case should comply with
between an order which the court properly constituted issues to them
and the law as stipulated in the rules of court. Which of the two
laws, in other words, must give way to the other.
The
dimension raises jurisprudential issues which only the superior court
can clarify for the benefit not only of the court but also of
litigants.
It
is on the mentioned score that I remained persuaded to grant leave to
the applicant to prosecute its appeal. The prosecution of the same
will, no doubt, enhance the development of the law and the court's
appreciation of the same.
The
application is, in the premise, granted as prayed.
Chambati
Mataka Attorneys at Law,
for the applicant
Atherstone
& Cook,
for the respondent
