IN
CHAMBERS
KUDYA
AJA:
This
is an application for condonation of failure to file a notice of
appeal within the time prescribed by Rule 38 of the Supreme Court
Rules, 2018 and extension of time within which to appeal.
THE
FACTS
The
applicant is a charitable trust of a public character. It was
registered with the Registrar of Deeds in terms of section 5(b) and
(m) of the Deeds Registry Act [Chapter
20:05]
under a notarial deed of trust number MA NO 2079/2019 on 25 September
2019.
Thereafter
the applicant lodged a chamber application for the registration and
certification of the same trust with the High Court.
On
2 January 2020, a judge in chambers granted the following order:
“On
payment of the appropriate fees provided for in SI 187/2019 (item 12
of Schedule r2) the Notarial Deed of Trust MA. NO. 20179/2019 be and
is hereby registered with the court and a copy thereof shall be
retained by the Registrar who shall issue a Registration Certificate
of the Trust.”
The
Registrar of the High Court failed to effect the order.
She
sought directions from the presiding judge.
Only
then did it dawn upon the judge that the order lacked a legal basis
to stand on.
The
presiding judge invoked the provisions of Order 49 Rule 449 of the
High Court Rules, 1971 and sought to rescind the order.
The
appropriate notice of her intention to revoke the order was duly
served on the applicant.
On
the date of hearing, counsel for the applicant argued in support of
the order. Judgment was reserved.
The
judgment, HMT 59/20, was released on 15 September 2020. The order of
2 January 2020 was revoked in its entirety on the basis that it was
“erroneously sought and erroneously granted”. The applicant's
counsel collected it on 17 September 2020.
The
applicant sought to appeal against the judgment on 7 October 2020,
which turned out to be a day after the dies
induciae
for doing so had lapsed.
It
filed the initial application for condonation and extension of time
within which to note an appeal under Rule 61 instead of Rule 43 of
the rules of this Court.
That
application was removed from the roll for that reason on 28 October
2020.
The
present application was filed on 19 November 2020. It was set down on
12 March 2021 for hearing before me in chambers on 30 March 2021.
On
the date of hearing, I postponed the application to 12 May 2021 to
enable the applicant to file heads of argument to address the
propriety of lodging the application for a prospective appeal to this
Court, without a respondent.
The
applicant's counsel duly did so on 30 April 2021.
On
the date of hearing, I directed counsel to address me on both the
preliminary point and the merits of the application and thereafter
reserved judgment.
I
am grateful to counsel's industry on the preliminary point.
I
now turn to deal with the preliminary point.
Whether
an appeal can properly be filed to this court without a respondent
THE
LAW
The
Supreme Court Rules, 2018, do not expressly deal with a situation,
such as the present one, where an appeal is sought to be lodged
against an order or judgment of a subordinate court or tribunal,
without a corresponding respondent.
However,
Rule 73, incorporates by reference the position that relates to the
High Court.
It
is for this reason that the High Court Rules are the default rules
that cover the procedural gaps in the Supreme Court Rules.
Regarding
chamber applications, Rule 39(4) of the Supreme Court Rules 2018
reads as follows:
“(4)
Applications referred to in rules 43, 48, 49, 53 and 55 shall be by
way of chamber application as regulated, mutatis
mutandis,
by the High Court Rules.”
An
application in which only one party approaches a court for relief
without a corresponding respondent falls into the category of ex
parte
applications.
TJM
Paterson in Eckard's
Principles of Civil Procedure in Magistrates Court
5th
ed Juta 2010 states that:
“The
ex
parte
applications may be used in the following cases; (inter
alia)
when the applicant is the only person with an interest in the case.”
In
the same vein is Herbstein
and Van Winsen, the Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
by CILLIERS, LOOTS and NEL, 5th
ed at p421:
“An
ex
parte
application
is an application brought without notice to anyone, either
because
no relief of a final nature is sought against any person, or
because notice might defeat the object of the application or the
matter is one of extreme urgency. It has also been described as an
application of which notice has as
a fact
not been given to the person against whom some relief is claimed in
his absence. Where relief is claimed against another party in an ex
parte
application, the application must be 'addressed' to that party
but need not be served on that party.”
On
the same page, in note 7, the learned authors rely on Development
Bank of Southern Africa Ltd v Van Rensburg
[2002] 5 SA 425 (SCA) at 443 and Ghomeshi-Bozorg
v Yousefi
1998 (1) SA 692 (W) at 696 to underscore that:
“An
order granted ex
parte
is by nature provisional, irrespective of the form which it takes.”
In
our law, in terms of Order 32 Rule 226(1) of the High Court Rules,
1971 applications fall into two separate and distinct groups.
(i)
The first relates to court applications, which are made in writing to
a court on notice to interested parties.
Rule
226(2)(d) prescribes that:
“(2)
An application shall not be made as a chamber application unless —
(d)
the relief sought is for a default judgment or a final order where —
(ii)
there is no other interested party to the application; or”
Again
Rule 241(1) contemplates the absence of a respondent by prescribing
that a chamber application that is not going to be served on an
interested party be filed under Form 29B.
Rule
242(1)(a), however, contemplates the existence of a respondent to
whom the applicant is precluded from serving a chamber application
because he “reasonably believes that the matter is uncontentious in
that no person other than the applicant can reasonably be expected to
be affected by the order sought or object to it”.
In
our procedural law, unlike in South Africa, therefore, an ex
parte
application filed in terms of Rule 226(2)(d)(ii) may be made for a
final order in circumstances where there is no other interested party
to the application.
A
general perusal of our law reports shows that ex
parte
cases have been determined by this Court.
The
obvious case that comes to mind, where the High Court mero
motu
refused to register a legal practitioner “on the basis of a
long-standing rule of practice adopted and enforced in this country
that members of the legal profession who appear to present cases must
be formally dressed, tidy and well groomed” is In
re Chikweche
1995 (1) ZLR 235 (S).
My
researches have shown that between 1992 and 2009 all the In
re
cases such as In
re Hoggart
1992 (1) ZLR 195 (S) (immigration); In re
Wood & Anor
1994 (2) ZLR 155 (S) (immigration); In
re Kwenda
1997 (1) ZLR 116 (S) (Criminal offences); In re
Munhumeso & Ors
1994 (1) ZLR 49 (S) (Law and Order Maintenance Act); In
re Ndimande: A-G v Ndimande (criminal)
1992 (2) ZLR 259 (S); In
re Patrick Chinamasa
SC 113/2000 (contempt of court); and In
re Hativagone & Ors
2004 (2) ZLR 133 (S) (fraud permanent stay under section 24(2) of the
old Constitution) that came before this Court were constitutional
challenges.
I
was unable to find a case on all fours with the present matter.
That
an appeal can be lodged in the Supreme Court without a respondent is
implicitly stated in section 43 of the High Court Act [Chapter
7:06].
It reads:
“43
Right of appeal from High Court in civil cases
(1)
Subject to this section, an appeal in any civil case shall lie to the
Supreme Court from any judgment of the High Court, whether in the
exercise of its original or its appellate jurisdiction.”
Any
judgment of the High Court that is not specifically excluded by subs
(2) of section 43 of the High Court Act is therefore appealable.
The
present judgment is not excluded so it would be appealable.
To
the same effect is section 21 of the Supreme Court Act [Chapter
7:13],
which provides that:
“21
Jurisdiction in appeals in civil cases
(1)
The Supreme Court shall have jurisdiction to hear and determine an
appeal in any civil case from the judgment of any court or tribunal
from which, in terms of any other enactment, an appeal lies to the
Supreme Court.
(2)
Unless provision to the contrary is made in any other enactment, the
Supreme Court shall hear and determine and shall exercise powers in
respect of an appeal referred to in subsection (1) in accordance with
this Act.”
The
provisions of Rules 37(2), 37(3) and 43(4) of the Supreme Court Rules
2018, which require that a copy of the appeal and chamber application
shall be served on a respondent, would therefore be inapplicable in a
case such as the present one.
I
am satisfied that the present application in which the applicant
seeks to appeal without citing a respondent is contemplated by the
Supreme Court Rules 2018 as read with the above cited provisions of
the High Court Rules, 1971.
I
find the application to be properly before me.
I
now proceed to determine whether the applicant is entitled to the
relief it seeks.
It
is trite that the general requirements for an application for
condonation and extension of time to note an appeal are the length of
the delay, the reasonableness of the explanation for the delay and
the prospects of success on appeal. These factors must be considered
cumulatively and not individually. See Ester
Mzite v Damafalls Investments (Pvt) Ltd
SC 21/18.
THE
EXTENT DELAY AND THE REASONS THEREOF
In
the present matter, the applicant was required to file its notice of
appeal by 6 October 2020. It filed the present application on 19
November 2020.
This
was a delay of 6 weeks.
It
was not an inordinate delay regard being had to the explanation
provided by its erstwhile legal practitioner. She filed the founding
affidavit for the applicant and took personal responsibility for
failing to compute the dies
induciae
from the ex
facie
date of judgment and for basing the initial application on Rule 61
instead of Rule 43.
This
Court has in numerous cases emphasized that the duty of a legal
practitioner is to be knowledgeable about the rules of this Court. It
is not to make excuses, based on their ignorance of the rules of
court, on behalf of the clients.
These
were, however, minor bleeps and blunders that could have been avoided
with a small measure of diligence. I, however, accept the explanation
proffered as reasonable.
PROSPECTS
OF SUCCESS
The
application revolves upon the prospects of success on appeal.
THE
JUDGMENT A QUO
The
learned judge a
quo
relied on Rule 449(1)(a) of the High Court Rules, 1971 to revoke the
judgment.
The
presiding judge held that the High Court did not have the
jurisdiction to either register or issue a certificate of
registration to the applicant. And, further, held that the absence of
an enabling statutory framework precluded the Registrar of the High
Court from enforcing or implementing the order of 2 January 2020.
The
presiding judge further held that as the applicant had already been
registered by the appropriate authority, it could not properly seek a
second registration and certification from the High Court.
All
that the High Court could do was to issue a mandatory interdict, for
good cause, against the Registrar of Deeds to register and
certificate the applicant had he declined to do so.
The
judge a
quo
also relied on the case of Veritas
v Zimbabwe Electoral Commission & Ors
SC103/20
to hold that the applicant was not a legal person and as such it
could not invoke its inherent powers codified in section 13 of the
High Court Act to give it access to address a wrong or enforce civil
remedies.
THE
PROSPECTIVE GROUNDS OF APPEAL
The
applicant intends to raise three grounds of appeal, which are worded
as follows:
“1.
The court a
quo
erred in law by applying subs (sic) (1)(a) of Order 49 Rule 449 of
the High Court Rules to the facts at hand, in that the order was not
erroneously sought nor was it erroneously granted.
2.
The court a
quo
erred in law and in fact in holding that the order granted was
incapable of enforcement when the actual issue before the court had
not been enforcement but registration.
3.
The court a
quo
erred in law and fact in concluding that the court had no
jurisdiction to register the trust by virtue of it having been
registered with the Deeds Registry Office when there is no law or
practice barring such registration with the High Court.
The
applicant will seek that the appeal be allowed, the judgment a
quo
be set aside and substituted with the initial order granted on 2
January 2020.”
It
is clear from the grounds of appeal as worded that the applicant
seeks to impugn all the other legal and factual findings of the court
a
quo
other than the legal finding that it does not have legal standing to
sue in its own name.
APPLICATION
OF THE LAW TO THE GROUNDS OF APPEAL
The
first ground of appeal, which mirrors the averment made by the
applicant in para 14.1 of its founding affidavit, specifically limits
the attack to the construction of Rule 449(1)(a) to the finding that
the initial order “was erroneously sought or erroneously granted”.
It
does not further impugn the inapplicability of this subrule to
circumstances where there is an absent party adversely affected by
the order.
However,
in oral argument, Mr Kafesu,
for the applicant, argued that as there was no respondent a
quo,
the order could not conceivably have been “granted in the absence
of any party affected thereby”.
He
contended that the only party affected by the order was the
applicant, which through the chamber application, was present and not
absent before the High Court. He therefore submitted that the
revocation could not properly be done under Rule 449(1)(a).
He
further contended that the High Court had jurisdiction to register
the applicant notwithstanding that this had already been done by the
Registrar of Deeds.
Lastly,
he argued that the learned judge erred in holding that the order was
incapable of enforcement when the actual issue before the Court was
registration.
Rule
449 reads as follows:
“449.
Correction, variation and rescission of judgments and orders
(1)
The court or a judge may, in addition to any other power it or he may
have, mero
motu
or
upon the application of any party affected, correct, rescind, or vary
any judgment or order —
(a)
that
was erroneously sought or erroneously granted in the absence of any
party affected thereby; or
(b)
in which there is an ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error or omission; or
(c)
that was granted as the result of a mistake common to the parties.
(2)
The court or a judge shall not make any order correcting, rescinding
or varying a judgment or order unless satisfied that all parties
whose interests may be affected have had notice of the order
proposed.”
The
meaning of Rule 449(1)(a) was rendered in Grantully
(Pvt) Ltd & Anor v UDC Ltd
SC17/2000 (2000 (1) ZLR 361 (S)). This Court said at pp3 and 5 that:
“Rule
449 is one of the exceptions to the general principle that once a
court has pronounced a final judgment or order it is functus
officio
and has itself no authority to correct, alter or supplement it.
Moreover,
the specific reference in Rule 449(1)(a) to a judgment or order
granted 'in the absence of any party affected thereby' envisages
such a party being able to place facts before the correcting,
rescinding or varying court, which had not been before the court
granting the judgment or order. I think the Rule goes beyond the
ambit of mere formal or technical defects in the judgment or order.”
The
purpose of Rule 449 is to prevent the continued existence and
perpetuation of an obvious judicial injustice by correcting or
setting it aside. See Tiriboyi
v Jani & Anor
2004 (1) ZLR 470 (H) at 472D-F.
The
three conjunctive pre-requisites for invoking Rule 449(1)(a) were
rendered by GOWORA JA in Maxwell
Matsvimbo Sibanda v Zambe Nyika Gwasira & Ors
SC14/21 at para [26]. They are that:
“(a)
The judgment must have been erroneously sought or granted;
(b)
The judgment must have been granted in the absence of the applicant;
and
(c)
The applicant's rights or interests must be affected by the
judgment. See Mashingaidze
v Chipunza & Others
HH688/15.”
Mr
Kafesu
strongly argued that there was not another party interested or
affected by the order other than the applicant.
The
relief sought by the applicant demonstrates his patent error.
In
terms of the relief sought, the Registrar was required:
(i)
Firstly, to accept the appropriate fee provided for in para 12 to the
Second Schedule of the High Court (Fees) (Civil Cases) (Amendment)
Rules, SI 187/2019;
(ii)
Secondly, to register the notarial deed with the court;
(iii)
thirdly, to retain a copy thereof; and
(iv)
lastly to issue a registration certificate of the trust to the
applicant.
The
Registrar was therefore a party with a direct and substantial
interest in the order sought. Indeed, the fact that when confronted
with the order, the Registrar was unable to implement it clearly
shows that he was an interested party.
There
is no doubt in my mind that the applicant failed to cite the
Registrar as a party who had a direct and substantial interest in the
application.
The
further and alternative argument by Mr Kafesu
was that, as the application was addressed to the Registrar of the
High Court, he cannot be said to have been absent.
It
is correct that every application lodged in the High Court is by
operation of law addressed to the Registrar of that court.
Herbstein
and van Winsen, supra,
at p421, makes the same point in the following words:
“In
an ex
parte
application the notice of motion is addressed to the registrar. It
must be supported by an affidavit as to the facts upon which the
applicant relies for relief.”
The
same procedural requirement to address every application to the
Registrar of the court a
quo
and then to other interested parties is prescribed by both Form 29
and 29B.
It
is, however, noteworthy that such an address does not signify the
service of the application upon the Registrar.
Rather,
it is an administrative device that allows the Registrar to file the
issued pleading in a court record opened at the institution of the
relevant proceedings. It does not, therefore, denote service of the
relevant pleading on the Registrar.
In
any event, it would be well-nigh impossible for the Registrar to
ferret through every pleading to determine whether or not he is being
addressed as a litigant or as an administrator.
Where,
therefore, an applicant wishes to sue the Registrar, he or she or it
must treat him as befitting of every other respondent by specifically
citing him on the face of the application, utilizing the appropriate
form and serving him with the application.
It
seems to me that it was important and necessary for the applicant to
specifically follow the relevant requirements prescribed in the
rules.
This
was because the applicant was not only seeking relief from the
Registrar but was also seeking novel relief at that.
In
these circumstances, a relevant and necessary respondent was not
cited.
The
vacated order was given in favour of the applicant in the absence of
a party who was duly affected by it. See Kufakwazvino
v Mutandwa & Ors
SC29/07.
The
further question raised by the prospective first ground of appeal is
whether the vacated order was erroneously sought or erroneously
granted.
Mr
Kafesu
contended that the vacated order was neither erroneously sought nor
erroneously granted. He premised his argument on two grounds:
(i)
The first was that the High Courts in South Africa are imbued by
section 4 of the Republic of South Africa's Trust Property Control
Act (No.57/1988) with the authority to register Trusts similar to the
applicant. He equated this power with the one conferred on the High
Court to charge the specified fee for “Registration Certificate”
by para 12 of Statutory Instrument SI 187/2019.
He,
therefore, premised his second contention on that Statutory
Instrument.
He
argued that the High Court had the power to issue, register and
certify the applicant as a Trust under the same provision.
He
further argued that the provision drew its force from the inherent
power of the High Court codified in section 13 of the High Court Act.
Counsel
submitted that these were arguable propositions which stood a
reasonable possibility of success on appeal to the Supreme Court.
The
contentions by Mr Kafesu
are patently fallacious.
He
was unable to pinpoint local legislation similar to the South African
one which confers such power on the High Court.
The
registration and concomitant certification of Trusts is not a mere
matter of form but is one of substance.
In
Zimbabwe, the process is governed by the Deeds Registries Act
[Chapter
20:05].
In
terms of section 5(b) as read with section 70A of that Act, it is
preceded by an examination of the deed or other documents submitted
to the Registrar of Deeds for execution or registration, who may for
prescribed reasons reject the documents and therefore the
registration and certification of the Trust.
The
registration and certification is then undertaken by the Registrar of
Deeds in terms of section 5(m) as read with (r1) and recorded in the
appropriate register opened for that purpose in terms of section 5(w)
of the same Act.
The
specific details regarding the examination and registration are
provided in the Deeds Registry Regulations RGN 349/1977, promulgated
by the Minister of Justice, Legal and Parliamentary Affairs in terms
section 87(1)(c1) and (2)(a) of the Act.
These
statutory powers are not conferred on the High Court or its
Registrar, who in any event, as this application demonstrates would
not know how to deal with such an application.
The
High Court is clothed with the power to enforce the rectification of
such deeds in terms of section 6(b)(ii) and (v) of the Deeds
Registries Act against a recalcitrant interested person. This is in
addition to the power to cancel real rights in land provided for in
section 8(1) of the same Act.
The
registration and certification by the Registrar of Deeds has the
imprimatur of law.
Indeed
section 24(1) and (2) of the Interpretation Act [Chapter
1:01]
confers and imposes on a regulatory authority such as the Registrar
of Deeds the necessary powers, jurisdiction or right to effectuate
the powers bestowed upon it by its enabling enactment.
The
applicant was in the same vein, thus, given the power to activate the
provisions of the Trust Deed by the registration thereof by the
Registrar of Deeds. It did not require any added legitimacy to
operate from the High Court or its Registrar.
It,
therefore, lacked a cause of action to approach the High Court to
seek the relief that was initially granted on 2 January 2020 and duly
revoked on 15 September 2020. See Wector
Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd
SC31/15.
SI
187/19 was promulgated in terms of section 57 of High Court Act. The
section provides that:
“57
Regulatory power to fix fees
The
Minister may make regulations providing for the fees which shall be
payable in respect of instruments, services or other matters
received, issued, provided or otherwise dealt with by the Registrar
or Sheriff or any other officer to the High Court in the course of
his duties or in the office of such officer.”
Paragraph
12 of the Schedule to the Fees enactment covers the instruments,
services or other matters received issued, provided or otherwise
dealt with by the Registrar or Sheriff or any other officer to the
High Court in the course of his or her duties.
The
only registration certificate that is issued by the Registrar I am
aware of is the certificate of registration as a legal practitioner,
conveyancer and notary public.
This
is issued in terms of section 5(1) of the Legal Practitioners Act
[Chapter 27:07] to persons who qualify to be so registered.
In
terms of section 3(1) of the same Act, the Registrar is mandated to
keep a register of registered legal practitioners. Coincidentally,
the Registrar of Deeds is also mandated to keep such a register by
section 59 of the Deeds Registries Regulations RGN 349/1977.
It
is not part of the legal duties and responsibilities of the Registrar
of the High Court to register certificates of registration of trusts.
The regulations thus made in terms of section 57 of the High Court
Act would, therefore, not apply to such registrations.
Lastly,
Mr Kafesu
sought to link para 12 to the Schedule of SI 187/19 to the inherent
power of the High Court to determine controversies between litigants,
which is codified in section 13 of the High Court Act.
It
seems to me that the inherent power of the High Court, if any, to
register trusts has been attenuated by the Deeds Registry Act.
This
is patently clear from the opening words of section 13 “subject to
this Act and any other law” which subordinates the inherent powers
of the High Court, inter
alia,
to any other law.
The
exercise of the High Court's inherent jurisdiction over the
registration and certification of Trusts is, therefore, made subject
to the provisions of the Deeds Registries Act by the opening words in
section 13 of the High Court Act.
In
the circumstances, I am satisfied that the vacated order was
erroneously sought and erroneously granted in the absence of a party
affected by it.
I,
therefore, find the prospective first ground of appeal will unlikely
succeed on appeal.
The
second ground of appeal need not detain me.
It
seeks to distinguish registration from enforcement. I find this to be
a puerile play of semantics. The practical reality is that the
cumulative effect of the relief sought is the enforcement by the
Registrar of the High Court of the vacated order that the applicant
seeks reinstated on appeal. That ground of appeal is therefore
unlikely to succeed.
In
dealing with the prospects of success of the first ground of appeal I
have already answered the issues raised in the third ground. The High
Court does not have the power to grant the order sought. Such power
is reposed in the Registrar of Deeds.
The
third ground is therefore not arguable. It is thus unlikely to
succeed on appeal.
In
my view, the arguments advanced a
quo
and rehashed in this application are unlikely to succeed on appeal.
They are simply not arguable. There are, therefore, no prospects of
success on appeal.
In
our law, as espoused in
Crundall
Bros (Pvt) Ltd v Lazarus NO & Anor
1991 (2) ZLR 125 (S) at 128F a “trust is not a person”. It must
be represented by a trustee or trustees, nomine
officii.
This
position is affirmed in the Veritas
case, supra para
[20] and Chiite
& 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central
Trust
CCZ 10/17.
These
authorities and in particular the Veritas
case, supra,
also lay down the principle that the founding affidavit of a Trust
suing in its name must be deposed to by an authorized trustee and not
by an employee of the trustee/s and not in the trade name of the
Trust to satisfy the requirement that it is the “Trust” that is
before the court.
I
am aware that this Court in the recent judgment of Sharadkumah
Patel & Anor v The Cosmo Trust & Ors
SC165/21 at para [44] held that a Trust has the legal capacity to sue
in its own name or in the name of a trustee.
That
finding does not appear to affect the principle raised in the above
cited cases that the founding affidavit of an application of such a
Trust must be deposed to by a trustee to render the application
valid.
The
prospective grounds of appeal do not impugn this finding. There is no
likelihood that the appeal, which does not additionally attack this
very fundamental finding that goes to the very root of the
application, would succeed.
DISPOSITION
The
original application a
quo
was misconceived. Thus even if Rule 449(1)(a) were inapplicable, I
would have invoked the powers vested in me by section 25(2) of the
Supreme Court Act [Chapter7:13]
to review the initial proceedings and the judgment sought to be
appealed.
The
section provides that:
“Review
Powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction, and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction, and authority conferred by subs (1) may be
exercised whenever it comes to the notice of the Supreme Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.”
In
view of the reasons alluded to above, this would have been a proper
case for me to exercise my review powers in terms of section 25(2) of
the Supreme Court Act, to set aside both the judgment No. HMT59/20
dated 15 September 2020 and the original order in HC342/19 dated 2
January 2020.
The
present application is, however, devoid of merit and ought to be
dismissed.
In
the circumstances, it is ordered that:
1.
The application be and is hereby dismissed.
2.
There shall be no order as to costs.
Henning
Lock,
applicant's legal practitioners
