IN
CHAMBERS
MATHONSI
JA: This
is a chamber application made in terms of Rule 13(1) of the Supreme
Court Rules, 2018 (“the Rules”).
The
applicant seeks the review of a decision of the first respondent, the
Registrar of this Court, that deemed an application for condonation
for the late filing of an appeal abandoned and dismissed it.
After
hearing the parties, I issued the following order:
“IT
IS ORDERED THAT:
1.
The decision of the first respondent of the 21st
of October 2021 to regard as abandoned and to dismiss a chamber
application for condonation for late noting of an appeal and for
extension of time within which to appeal filed in SC362/21 be and is
hereby declared to have been in error and is hereby set aside.
2.
The applicant's application for condonation of non-compliance with
Rule 37(1) and Rule 38(1) of the Supreme Court Rules lodged in case
number SC362/21 be and is hereby reinstated.
3.
Each party shall bear its own costs.”
I
indicated that the full reasons for my decision would follow. What
follows hereunder are those reasons.
THE
FACTS
On
5 October 2021, the applicant filed an application for condonation of
the late noting of an appeal under case number SC362/21. The
application was served on the second and third respondents on that
date and on the fourth respondent on 7 October 2021. It is common
cause that the certificates of service were only filed on 12 October
2021.
Despite
the filing of the proof of service on 12 October 2021, by a letter
date-stamped 21 October 2021, the Registrar notified the applicant
that in terms of Rule 39(2) of the Rules, the application under
SC362/21 had been regarded as abandoned and dismissed.
Due
to its importance in the resolution of the present application, I
reproduce the letter hereunder:
“RE:
JOHN BASERA VS SAMUEL TENDAI MUVUTI AND 2 OTHERS SC 362/21
Reference
is made to a Chamber Application you filed on the 5th
of October 2021. It is noted that you did not serve your application
to the respondents in terms of Rule 39(2) of the Supreme Court Rules
(2018).
In
terms of the aforementioned rule, the application is regarded as
abandoned and is hereby dismissed.”
In
response, the applicant's legal practitioners wrote a letter to the
Registrar contending that her decision had been made erroneously and
requesting her to rectify it because the application had been served
on the respondents.
Indeed,
the Registrar appeared to acknowledge the error in her letter dated 5
November 2021. The Registrar, however, advised the applicant that she
could not review her own decision and, thus, invited the applicant to
proceed in terms of Rule 13 of the Rules, which he has done.
In
his founding affidavit, the applicant asserted that the chamber
application under case number SC362/21 was filed and served within
three days. He stated that Rule 43 of the Rules does not make the
filing of certificates of service peremptory. He further averred that
the Registrar erred by dismissing his application in terms of Rule 39
rather than in terms of Rule 43 of the Rules.
Significantly,
in her report prepared in terms of Rule 13(3) in respect of the
present application, the Registrar rendered two conflicting reasons
for dismissing the application.
First,
she stated that she dismissed the application on the basis that the
applicant had not served the application on the respondents within
three days of filing or furnished proof of such service. Second, she
stated that “the applicant filed proof of service of the
application on the 12th
of
October, 2021. The delay is the basis of the Registrar's decision.”
SUBMISSIONS
BY THE PARTIES
Mr
Dzvetero
for the applicant motivated the application on three grounds.
(i)
Firstly, he submitted that the application was, as a matter of fact,
filed and served on the respondents within three days. He referred to
the certificates of service that were filed of record as proof of
this fact.
(ii)
Secondly, he submitted that there is no requirement in Rule 39(2) for
proof of service to be filed within the three days of the filing of
the application. This would not only be impossible, so it was argued
but also impractical.
(iii)
Thirdly, he argued that the decision of the Registrar was erroneous
because Rule 39(2) was inapplicable in the circumstances of this
case, the application having been filed in terms of Rule 43(4). It
could only be regarded as abandoned and deemed to have been dismissed
under that subrule.
Ms
Garise-nheta
indicated
that the fourth respondent was not opposed to the application. As
such, she did not make any submissions.
THE
LAW
A
review application under Rule 13 of the Rules is equivalent to what
INNES CJ termed “review by motion” in the case of Johannesburg
Consolidated Investment Co v Johannesburg Town Council
1903
TS 111
at
114.
Under
this form of review, and as INNES CJ stated, a Court or a Judge
reviews the proceedings or decisions complained of and sets them
aside or corrects them, if:
(a)
a public official disregards important provisions of a statute that
imposes obligations on him or her;
(b)
a public official is guilty of gross irregularity.
It
is settled law that a decision will be irregular and irrational,
where the decision-making body has arrived at a decision “so
outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to
be decided could have arrived at it.”
See
Secretary
for Transport & Anor v Makwavarara
1991
(1) ZLR 18 (S) at 20.
A
decision would also be irrational if it is irreconcilable with the
facts that were before the decision-maker.
(c)
there is clear illegality in the performance of a duty.
Illegality
arises where the decision-making authority has been guilty of an
error in law: see Secretary
for Transport
case
supra.
See
also Affretair
(Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd
1996
(2) ZLR 15 (S).
Although
the above list is not exhaustive, where any of the above grounds are
established, a Judge is bestowed with discretion regarding the
appropriate order to make. He or she may amend, confirm or set aside
the decision of the public official, in this case the Registrar, or
give any other order as he or she thinks fit.
See
Rule 13(4) of the Rules and section 169(4) of the Constitution of
Zimbabwe, 2013.
ANALYSIS
This
application turns on the simple question whether or not the applicant
failed to comply with Rule 43(4) of the Rules as to attract the
consequence of the application being regarded as abandoned and
therefore dismissed.
Rule
43(4) provides that:
“(4)
An application in terms of this rule and accompanying documents shall
be filed with a registrar and thereafter served on the respondent
within three days, failing which the application shall be regarded as
abandoned and deemed to have been dismissed.”
The
resolution of the matter involves a purely interpretative exercise.
On
a literal interpretation “if
the words of a statute are clear then one must follow them even if
they lead to a manifest absurdity. The court has nothing to do with
the question whether the legislature has committed an absurdity.”
See
R
v Judge of the City of London Court
[1892]
1 QB 273
at
290; and Chegutu
Municipality v Manyora 1996
(1) ZLR 262 (S) at 264D-E.
By
applying a literal interpretation to the provision in question, the
following requirements emerge:
(a)
an application under Rule 43 must be filed with the Registrar of the
Supreme Court;
(b)
the application must be served on the respondent within three days of
filing; and
(c)
if the application is not served on the respondent within three days
of filing, it is regarded as abandoned and deemed to be dismissed.
Evidently,
the literal interpretation of the rule does not make it peremptory
for an applicant to file proof of service within three days of filing
the application.
It
however makes it abundantly clear that if an application is not
served on the respondent within three days of filing, it is regarded
as abandoned and deemed to be dismissed.
That
ought to be the end of the matter.
There
is nothing in the rule, in terms of which the Registrar acted, which
empowers the Registrar to dismiss an application because of the delay
in filing proof of service.
Indeed,
the reason given by the Registrar in her notice to the parties dated
20 October 2021 was that the application was being regarded as
abandoned and therefore dismissed because the application had not
been served within three days.
The
dismissal, as communicated to the parties, was not for failure to
file proof of service.
It
was factually incorrect because, to the full knowledge of the
Registrar, the application had been served within time. To that
extent, the aspect of a delayed filing of a certificate of service
pales to insignificance.
It
was not open to the Registrar to revise her reasons for deeming the
application as abandoned in her report filed in response to this
application.
Not
that it would have made a difference because nowhere in the rules is
it provided that an application can be deemed abandoned and dismissed
for failure to file a certificate of service within three days of its
filing.
It
is only a failure to serve the application that forms the basis for a
dismissal.
While
Rule 11(2) requires proof of service to be filed, it does not fix a
time frame for such filing. Even if one were to interpret the rules
as requiring proof of service to be filed, surely such a generous
interpretation cannot extend to requiring proof of service to be
filed within three days as well.
In
that regard, I agree with Mr Dzvetero
that
it would not be practical to comply with such a requirement.
A
certificate of service is usually prepared and signed by both the
legal practitioner and his or her messenger or clerk, after service
has been effected. The legal practitioner signs it after satisfying
himself or herself from inquiry with the messenger or clerk that
service has been effected at the given address on a given date and
time.
It
may, however, be alluring to believe that the literal and grammatical
interpretation of the subrule does not adequately amplify the meaning
of the rule.
But
even by applying the mischief rule or by taking a purposive approach,
there still would not be an imperative in terms of Rule 43(4) to file
proof of service within three days.
In
the case of Zimbabwe
Electoral Commission & Anor v Commissioner-General, Zimbabwe
Republic Police & Others
2014
(1) ZLR 405 (S)
at
413B–C, this Court remarked:
“Another
rule of construction, the mischief rule, can be called in aid at this
juncture. In order to assist the court in deciding on the true
intention of the legislature, the court may have regard to 'the
mischief' that the Act was designed to remedy. Thus the court may
look not only at the language of the statute, but also at the
surrounding circumstances, and may consider its objects, its
mischiefs, and its consequences.”
In
the case of S
v Meredith
1981
ZLR 123 (AD) at pp.127–128, BARON JA accepted that the existing
state of the law and other statutes in pari
materia
may
be relied on to discern what a provision was intended to remedy.
In
Chihava
& Anor v The Provincial Magistrate & Anor
2015
(2) ZLR 31 (CC)
at
37C the state of the law in place before the enactment which is the
subject of interpretation was regarded as a useful aid in
ascertaining the legislative purpose and intention.
A
comparison of Rule 31(4) of the Supreme Court Rules, 1964 and Rule
43(4) reveals that the first part of Rule 43(4) of the Supreme Court
Rules, 2018 and the entire Rule 31(4) of the Supreme Court Rules,
1964 are, in essence, the same.
Rule
31(4) was couched as follows:
“(4)
A notice of motion in terms of this rule and accompanying documents
shall be served on a registrar and copies thereof shall be served on
the respondent.”
The
only significant difference arises in that Rule 43(4) of the Supreme
Court Rules, 2018 has the following additional prescription:
“… within
three days, failing which the application shall be regarded as
abandoned and deemed to have been dismissed.”
Under
the repealed rules, the failure to serve on a respondent an
application for condonation and extension of time within which to
appeal would not cause the application to be regarded as abandoned
and deemed to have been dismissed.
There
was no time limit for serving the application.
Rule
43(4) does, however, cause an application that has not been served on
the respondent within three days to be regarded as abandoned and
deemed to have been dismissed.
In
my view the addition of a deeming provision, is indicative of the
draughtsman's intention to render non-compliance with the rule
fatal.
Resultantly,
it is only the failure to serve an application made in terms of Rule
43 on the respondent that is fatal to the application and not the
filing of proof of service.
In
Harare
Wetlands Trust v Minister of Environment Tourism & Ors
S–141–20,
this Court made the point that the use of the word “within” in a
provision relative to time signifies that the provision is
peremptory.
Therefore,
the mischief behind the inclusion of a time limit in Rule 43(4) is to
curtail unnecessary delays in serving applications for condonation
which affects speedy finalisation of litigation.
Applications
for condonation should be prosecuted expeditiously.
I
reiterate that the provision of proof of service which, for all
intents and purposes, is clerical does not affect the speedy movement
of cases.
I
come to conclusion that the decision taken by the Registrar was
erroneously made and should be vacated.
Having
said that, I must sound a word of caution to legal practitioners and
litigants in general, that this should not be regarded as carte
blanche
allowing
them to sit on certificates of service. The rules require service of
applications within three days. They also require the filing of a
certificate of service.
Clearly
time is of the essence in this procedure. As such the prompt filing
of a certificate of service is required.
Considering
that Rule 11 is silent on the time frame for the filing of a
certificate of service, it must be interpreted to mean that
compliance should be made within a reasonable time.
In
appropriate cases, where there has been an unreasonable delay in
complying, the Registrar may be entitled to regard the application
abandoned and dismiss it.
I
mention for completeness that Mr Dzvetero
abandoned
the argument that Rule 39(2) was not applicable in the circumstances
of this case.
It
is a concession that was properly made because the Registrar
correctly relied on the subrule. This is because Rule 39 employs the
words “subject to”. The
words “subject to” are used to denote the dominant provision
where there is a conflict between two related provisions.
The
meaning of that phrase was considered in the South African case of
Zantsi
v The Council of State & Ors
1995
ZACC 9
at
par. 27 where the court said:
“I
respectfully agree with, and adopt, what Miller JA said in the
following passage in S
v Marwane
1982 (3) SA 717 (A), 747H to 748A, namely -
'The
purpose of the phrase 'subject to' in such a context is to
establish what is dominant and what [is] subordinate or subservient;
that to which a provision is 'subject' is dominant - in case of
conflict it prevails over that which is subject to it.'”
To
the extent that Rule 39 is not in conflict with Rule 43, it follows
that its provisions are generally applicable to applications under
Rule 43. However, where there is a conflict, the provisions of Rule
43 will be dominant.
See
National
Social Security Authority v Housing Cooperation Zimbabwe (Pvt) Ltd &
Anor
S–20–22
at p.2 where MAVANGIRA JA held that “Rule 39 does not override Rule
41. It applies to applications in general.”
Accordingly,
Mr Dzvetero
was
right
to abandon his arguments on the applicability of Rule 39 of the
Rules.
DISPOSITION
In
conclusion, let me underscore the fact that effective access to
justice is the underlying consideration in the application of our
procedural jurisprudence.
The
subrule under interpretation is itself a result of the shared
objective by those charged with the administration of justice and
those seeking it, to ensure efficient justice delivery. The rules of
court must always be interpreted in a way that gives effect to the
scales of justice that they are designed to balance.
It
is therefore unnecessary, if not undesirable, to read into both Rule
39(2) and Rule 43(4) conditions tending to stifle access to justice
which they do not impose.
Mr
Dzvetero
having
abandoned
the prayer for costs, I granted the order set out above for the
foregoing reasons.
Antonio
& Dzvetero,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
fourth respondent's legal practitioners
