Opposed
Application
MUZENDA
J:
This
is an application for condonation for late filing of notice of appeal
against a judgement handed down at Rusape magistrate court on 20 June
2018 where the court a
quo
granted an interdict to the application and ordered her not to
encroach with the respondent's plot 5 Lot 1 Chimbi Source and
barring applicant from interfering with farming activities of the
respondents at that plot. Appellant was also ordered to remove her
structures she had erected in plot 5 forthwith.
The
application was filed with this court on 24 August 2018.
The
respondent is opposing the application.
The
applicant in her affidavit states that she instructed a fraudster who
was masquerading as a legal practitioner and appeared on her behalf
at court.
A
perusal of the record of proceedings before the magistrate shows that
a notice of opposition was properly filed and the application was
represented on the date of hearing and she was also represented in
this application. She lost the matter in the court a
quo
and
sought a new legal representative to prepare the appeal as well as
this application for condonation.
In
her application for condonation she stated in her affidavit that she
fell ill and sought assistance from her church.
The
affidavit falls short for detail pertaining to the date she fell ill,
the date she learned about the judgement, the date she recovered, the
date she consulted her legal practitioners to prepare the appeal and
condonation, the date she was advised of the legal fees required by
the lawyers as well as the date her children assisted her with the
required fees.
All
this information is scanty from the record.
This
information would assist this court to determine the reasonableness
of the explanation for delay.
The
heads of argument filed on behalf of the applicant equally came too
short on that aspect and the initial greater part of the heads seem
to be addressing issues and law relating to the appeal against the
court a quo which appeal is not yet before this court.
Such
arguments should have properly been dealt with under the heading of
prospects of success on appeal.
The
important subject of condonation was contained on the last 2 pages of
the heads, yet that topic should have occupied the greater part of
the heads for condonation.
The
applicant has failed to properly explain the time aspect which is
central to the application for condonation. I have found that such a
failure goes to the root of the application and it ought to fail.
On
the aspect of the probability of success on the merits of the appeal,
after reading the draft notice of appeal and record of proceedings,
the court a quo clearly ruled that the focal point of dispute between
the parties relates to the boundaries of Plot 5 and Plot 24.
That
issue can best be resolved by the Ministry of Lands and Makoni Rural
District Council who can intervene and show both parties the extent
of their plots and the importance of protecting the boundaries of the
dam.
Hence
the probability of success on the merit does not favour the
applicant.
I
discern no misdirection in the judgement of the court a quo which
concluded that the requirements of an interdict application were met
by the respondent herein.
As
a result the following order is returned:
The
application is dismissed with no order as to costs.
Messrs
Bvuma and Associates,
applicant's legal practitioners
Messrs
Khupe Chijara Law Chambers,
respondent's legal practitioners
