CHAMBER
APPLICATION
CHATUKUTA
JA:
This is an opposed chamber application for condonation of
non-compliance with the rules and extension of time in which to
appeal in terms of Rule 43(1) of the Supreme Court Rules, 2018 (the
rules).
The
application was filed on 6 October 2021. The applicant intends to
appeal against the whole judgment of the High Court handed down on 12
December 2019 under HB196/19.
BACKGROUND
FACTS
The
following facts are largely common cause.
On
11 January 2019, the applicant signed an acknowledgment of debt in
favour of the respondent in the sum of USD$384,177. The applicant
undertook to pay the amount by 20 March 2019.
He
failed to pay the debt.
The
respondent issued summons against the applicant on the basis of the
acknowledgement of debt.
On
12 December 2019, summary judgment was entered in the respondent's
favour for payment of the sum of US$384,177.00, or its equivalent
with interest at the prevailing interbank rate.
The
applicant timeously noted an appeal against that judgment to this
Court on 17 December 2019 under SCB48/19.
On
6 February 2020, the respondent was granted by the High Court leave
to execute the summary judgment pending the appeal.
On
2 March 2020, the applicant was called upon by the Registrar of the
High Court to pay costs for the preparation of the appeal record.
The
applicant, acting on advice from his legal practitioners, decided not
to pay the costs.
He
instead took a decision to abandon the appeal and settle the judgment
debt. He deposited an amount of ZW$384,177.00 into the respondent's
attorneys trust account on 17 March 2020.
The
payment was at the parity rate of 1:1 notwithstanding the order by
the court a
quo
that the rate to be applied was the prevailing interbank rate.
On
7 July 2020, the Registrar of the Supreme Court, acting in terms of
Rule 46(5) of the Supreme Court Rules, 2018 wrote to the applicant's
legal practitioners advising them that the appeal had been deemed to
have lapsed.
On
24 March 2020 the applicant unsuccessfully sought an interim order
for stay of execution of the judgment under HB196/19 and, as final
relief, a declaratur that he had acquitted his indebtedness by paying
the amount of ZW$384,177.00.
The
applicant noted an appeal under SC117/20 against the dismissal of his
application.
The
matter was struck off the roll on 19 July 2021 for the reason that
the appeal was fatally defective.
Undeterred,
the applicant sought condonation of non-compliance with the rules and
extension of time in which to appeal on 28 August 2021 under
SCB35/21.
The
application was dismissed on 8 November 2021 in SC142/21.
The
respondent thereafter commenced civil imprisonment proceedings
against the applicant. This prompted the applicant to file the
present application on 6 October 2021.
ISSUE
FOR DETERMINATION
The
issue for determination in my view is whether the applicant has
satisfied the requirements for an application for condonation for the
late noting of an appeal and extension of time in which to appeal.
SUBMISSIONS
BY THE PARTIES
Applicant's
Submissions
Miss
Dube,
for the applicant, conceded that there has been an inordinate delay
in seeking the condonation. She conceded that the applicant's legal
practitioners took a deliberate decision to abandon the appeal. She
further conceded that the
explanation
tendered by the applicant was evidently unreasonable in view of the
deliberate abandonment of the appeal. She also conceded that the
applicant ought to have proceeded in terms of Rule 48 of the Supreme
Court Rules, 2018 which rule sets out the procedure which an
appellant should follow if he/she/it chooses to abandon an appeal.
She
conceded
that the applicant's conduct was indefensible.
Miss
Dube
submitted that in spite of the concessions regarding the applicant's
infractions, this Court ought to grant the application for
condonation nonetheless on the basis that the applicant has prospects
of success on appeal.
She
submitted that the applicant intends to raise an unassailable point
of law in his prospective appeal.
The
point had not been raised before the lower court and would be raised
in the intended appeal as a new point of law.
She
further argued that the other prospective grounds of appeal in the
draft notice of appeal raise arguable issues warranting the granting
of the condonation.
She
however conceded that punitive costs as prayed for by the respondent
were warranted even if the applicant succeeds in this appeal.
Respondent's
Submissions
Riding
on the concessions by Miss Dube,
Mr Samukange,
for the respondent, submitted that the applicant was not entitled to
the relief sought.
He
submitted that the requirements for such an application must be
considered cumulatively. He also submitted that the applicant would
not be entitled to the indulgence of the court in light of the
concessions made. Furthermore, that the applicant does not have
prospects of success on appeal and that the application should be
dismissed with costs on a punitive scale.
Mr
Samukange
however
raised other issues which in my view are irrelevant to the
determination of the application in view of the concessions by the
applicant.
THE
LAW
The
requirements for an application of this nature are well established.
They are:
1.
The extent of the delay;
2.
The reasonableness of the explanation for the delay;
3.
The prospects of success on appeal;
4.
Respondent's interest in the finality of the judgment in
his/her/its favour;
5.
Convenience of the court; and
6.
Avoidance of unnecessary delay in the administration of justice.
See
Kombayi
v Berkhout
1988
(1) ZLR 53 (S)
57G-58A; Herbstein
& Van Winsen The Civil Practice of the Supreme Court of South
Africa
4th
ed at p898.
The
requirements were rehashed by ZIYAMBI JA in Zimslate
Quartzite (Pvt) Ltd & Ors v Central African Building Society
SC
34/17 where she held at p7 that:
“An
applicant, who has infringed the rules of the court before which he
appears, must apply for condonation and in that application explain
the reasons for the infraction. He must take the court into his
confidence and give an honest account of his default in order to
enable the court to arrive at a decision as to whether to grant the
indulgence sought. An
applicant who takes the attitude that indulgences, including that of
condonation, are there for the asking does himself a disservice as he
takes the risk of having his application dismissed.”(own
emphasis)
Therefore,
in considering whether or not the Court should grant the applicant in
casu,
the indulgence sought, I have to consider the reasons advanced by the
applicant in his explanation for the failure to comply with the
rules.
The
court retains a discretion on whether to condone the non-compliance
with the rules taking into account the principles of justice, fair
play and the established factors that have to be considered in the
exercise of this discretion.
A
party seeking condonation and extension of time must satisfy the
court that a valid and justifiable reason exists as to why compliance
did not occur and why non-compliance should be condoned.
Further,
regardless of the prospects of success, a court may decline to grant
condonation where it considers the explanation for failure to comply
with the rules unacceptable.
It
was stated in Kodzwa
v Secretary for Health & Anor
1999
(1) ZLR 313 at
315F-H (S)
that:
“Whilst
the presence of reasonable prospects of success on appeal is an
important consideration which is relevant to the granting of
condonation, it
is not necessarily decisive. Thus
in the case of a flagrant breach of the rules, particularly where
there is no acceptable explanation for it, the indulgence of
condonation may be refused, whatever the merits of the appeal may be.
This was made clear by Muller JA in PE
Bosman Transport Works Committee & Ors v Piet Bosman Transport
(Pty) Ltd
1980 (4) SA 794 (A) at 799D-E, where the learned Judge of Appeal
said:
'In
a case such as the present, where
there has been a flagrant breach of the Rules of this court in more
than one respect, and where in addition there is no acceptable
explanation for some periods of delay and, indeed, in respect of
other periods of delay, no explanation at all, the application
should, in my opinion, not be granted whatever the prospects of
success may be.'
The
same point was made by Hoexter JA in Rennie
v Kamby Farms (Pty) Ltd
1989 (2) SA 124 (A) at 131G-J where the learned Judge of Appeal said:
'In
applications of this sort, the prospects of success are in general an
important, although not decisive, consideration. It has been pointed
out (Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & Ors
1985 (4) SA 773 (A) at 789C) that
the
court is bound to make an assessment of the petitioner's prospects
of success as one of the factors relevant to the exercise of the
court's discretion unless the cumulative effect of the other
relevant factors in the case is such as to render the application for
condonation obviously unworthy of consideration.
It
seems to me that in the instant case the cumulative effect of the
factors which I have summarised… above is by itself sufficient to
render the application unworthy of consideration; and that this
is a case in which the court should refuse the application
irrespective of the prospects of success.'”
(own emphasis)
See
also
Jaison
Kokerai Machaya v Lameck Nkiwane Muyambi
SC
4/05.
APPLICATION
OF THE LAW
Extent
of the delay
The
judgment under HB196/19 that the applicant seeks to appeal against
was handed down on 12 December 2019.
The
applicant was required to have noted the appeal on or before 9
January 2020.
This
application was filed 21 months out of time.
The
notice of appeal that was timeously filed under SCB48/19 was deemed
to have lapsed on 7 July 2020.
The
present application was filed 15 months after the lapse of the
appeal.
The
inordinate delay has been properly conceded by the applicant.
REASONABLENESS
OF THE EXPLANATION FOR THE DELAY
It
is the applicant's submission that the reason for his delay was
that he had received advice, which advice he accepted, from one of
the senior partners at the firm of his legal practitioners, to settle
the debt in accordance with the dictates of the case of Zambezi
Gas
v
N.R Barber and Anor
SC 3/20.
He
paid the debt in Zimbabwean dollars which the respondent did not
accept on the grounds that the applicant was required to pay the debt
at the prevailing interbank rate or in US dollars as ordered in
HB196-19.
The
applicant contended that he instructed his legal practitioner to
brief counsel to review his case. It is then that it became clear to
him that any argument on the invalidity of a judgment under SC 48/19
would best be made in an appeal against the judgment itself.
He
discovered that his original notice of appeal was not in accordance
with the rules as it did not clearly and concisely state the grounds
of appeal and the exact prayer sought. He then decided not to seek
the reinstatement of the appeal and opted to pursue the present
route.
Miss
Dube
conceded that the explanation was not satisfactory.
In
spite of the concession, it is necessary to interrogate the
explanation as it must be considered cumulatively with the other
requirements.
The
reason for the delay proffered by the applicant is very simple.
It
is that he took a deliberate decision not to pay costs for the
preparation of the record of appeal upon being requested to do so by
the Registrar. Instead of pursuing the appeal under SC 48/19, he
sought to pursue other options to satisfy the judgment debt.
To
say the explanation was not satisfactory is an understatement. The
explanation was hopelessly unsatisfactory for a number of reasons:
(i)
Firstly, the applicant made a calculated decision not to pursue the
appeal. He decided to settle the judgment debt at the parity rate in
spite of the dictates of the judgement which required him to pay the
debt at the interbank rate.
The
import of the decision he took is that the applicant chose to
disregard a court judgment which was extant.
The
judgment remained binding because the applicant deliberately chose
not to test the correctness of the judgment that he now seeks to
appeal against.
He
instead decided to apply his own rate to pay off the judgment debt
which was contrary to the rate prescribed in the judgment.
This
was a clear disdain and open defiance of an order of court as it
was incumbent upon the applicant to pay at the prevailing interbank
rate.
(ii)
Secondly, after the applicant opted on a rate to apply other than the
interbank rate, he hit a brick wall when the respondent indicated
that he had not fully discharged the judgment debt.
He
decided to seek a stay of execution in circumstances where the
respondent had successfully obtained an order for execution of the
judgment pending appeal under HB196/19.
Leave
to execute had in fact been granted unopposed.
The
application for stay of execution was filed on 24 March 2021, a year
after the Registrar had requested the applicant to pay costs for
preparation of the appeal record.
The
appeal under SC 48/19 had been deemed by virtue of Rule 46(5) of the
Rules, to have lapsed by operation of law.
The
application for stay of execution was therefore launched
notwithstanding
the fact that there was no pending appeal against the judgment
HB196/19 which appeal the applicant had unilaterally and
intentionally abandoned.
There
was no legal basis for the application for stay as there was no
pending appeal.
The
applicant further sought a declaratur as the final relief on the
basis that he had discharged his indebtedness by paying the judgment
debt at the parity rate.
This
again was notwithstanding the extant judgment under HB196/19
which stipulated that payment be at the interbank rate.
In
essence, the applicant was seeking in the final order to set aside
the judgment under HB196/19 through an urgent chamber application.
The final relief sought was therefore not competent.
(iii)
Thirdly, the applicant was not a self-actor. He was represented by
counsel at all times. He disregarded the rules of court on the advice
of his legal practitioners. He stated in para 16 of the founding
affidavit that:
“16.
The understanding of my legal practitioners, which I share, was that,
in the wake of the judgment of this Honourable Court in the Zambezi
Gas case, and given the date of the debt in this matter, I was
entitled to pay ZW384,177.00 as the parity rate applied to the debt.”
The
applicant agreed
with the advice given by his legal practitioners. He is
therefore not blameless. The
applicant, being represented, ought to have known of the probable
ramifications that could arise due to his abandonment of the appeal.
(iv)
Fourthly, instead of pursuing an appeal against the judgment under
HB196/19, the applicant, acting on the advice of counsel,
unsuccessfully sought to challenge the judgment by the High Court
dismissing his application for stay of execution not only once but
twice.
(v)
Fifthly, the decision to pursue his appeal again was only prompted by
the respondent's decision to institute civil imprisonment
proceedings. It is only then that he decided to have counsel briefed.
Prior to the civil imprisonment proceedings, the applicant was happy
to delay the execution of the judgment under HB196/19 by pursuing
incompetent proceedings a
quo
and before this Court.
In
spite of the concession by the applicant that the delay is inordinate
and that the explanation for the delay is unsatisfactory, a litigant
who wantonly disregards the rules of this court (and brazenly states
so in his founding affidavit) does not deserve the indulgence of the
court.
The
indulgence of the court should be reserved for parties who
inadvertently do not comply with the rules.
In
Ndebele
v Ncube
1992
(1) ZLR 288 (S) at 290C-D it was held that:
“It
is the policy of the law that there should be finality in litigation.
On the other hand one does not want to do injustice to litigants. But
it must be observed that in recent years applications for rescission,
for condonation, for leave to apply or appeal out of time, and for
other relief arising out of delays either by the individual or his
lawyer, have rocketed in numbers. We are bombarded with excuses for
failure to act. We are beginning to hear more appeals for charity
than for justice. Incompetence is becoming a growth industry. Petty
disputes are argued and then re-argued until the costs far exceed the
capital amount in dispute.……………”
It
was further held at 290E-F that:
“There
will always be cases where the delay is due to some reasonable
incapacity to act in time, or to some understandable oversight such
as the misfiling, or misplacing of a document. This is not such a
case.……. The time had come to call a halt to the throwing of good
money after bad.”(own
emphasis)
The
import of the averments by the applicant is that despite having
deliberately disregarded the rules on the advice of counsel, he can
come back two years later to seek the indulgence of this Court.
The
impression created by the applicant's averments and concessions is
that condonation is for the asking solely on the basis that the
applicant's appeal is arguable.
To
extend indulgence under the present circumstances would, in my view,
bring the administration of justice into disrepute.
INTEREST
OF THE RESPONDENT IN THE FINALITY TO LITIGATION
One
of the considerations in deciding whether or not to grant condonation
is the respondent's interest in the finality of the judgment of the
court.
The
respondent obtained judgment on 12 December 2019. After the applicant
noted an appeal against the judgment, the respondent obtained an
order for leave to execute on 6 February 2020.
The
respondent caused the execution of the judgment. He successfully
opposed the application by the applicant for stay of execution. He
resisted the appeal under SC117/20. He opposed the application for
condonation for late noting of appeal under SCB35/21. He instituted
civil imprisonment proceedings against the applicant.
The
respondent has clearly exhibited an interest in the finality of the
litigation between him and the applicant.
The
respondent has obviously proceeded for the past two years under the
impression that the applicant no longer intends to pursue the appeal
only to be landed with an application to resuscitate the appeal
wilfully abandoned two years ago.
In
order to forestall the civil proceedings instituted by the
respondent, the applicant now wishes to appeal against the judgment
granted in 2019.
As
stated in Jaison
Kokerai Machaya v Lameck Nkiwane Muyambi (supra)
at p5:
“The
notion that condonation of a breach of the Rules is there for the
asking ought to be dispelled. And, there must be finality to
litigation. It
is an injustice to a party who has been waiting to execute his
judgment to be forced to suffer the effects of the disregard by the
other party's legal practitioners of the Rules of Court, namely,
the delaying of the execution of his judgment.”
It
appears the applicant's attitude is that the longer it takes for
the respondent to enjoy the benefits of the judgment under HH196/19
the better for him. This cannot be countenanced by the law as there
must be finality to litigation.
PROSPECTS
OF SUCCESS
The
applicant argued that he intends to introduce new points of law in
his intended appeal. I have therefore considered that the question
whether the applicant has prospects of success is not decisive. (See
Kodzwa
v Secretary for Health & Anor,
supra).
The
applicant could have prosecuted his appeal under SC 48/19 and raised
in that appeal the very point of law in that appeal which it now
seeks to raise in the proposed appeal.
In
The
Ampthill Peerage [1977]
AC
547 at 569 LORD WILBERFORCE remarked as follows:
“Any
determination of dispute of fact may, the law recognises, be
imperfect; the law aims at providing the best and safest conclusion
compatible with human fallibility, and having reached that solution
it closes the book. The law knows. And we all know, that sometimes
fresh material may be found, which perhaps might lead to a different
result, but, in the interest of peace, certainty and security it
prevents further inquiry.”
The
prospects of success or lack thereof of the applicant's prospective
appeal are outweighed by the other requirements for condonation.
This
is borne out by Miss Dube's
concession that the applicant's infractions warrant an order of
punitive costs.
COSTS
Costs
follow the cause. Miss Dube
conceded
that punitive costs were warranted in the present case.
DISPOSITION
The
application is beset by infractions of the rules of this Court. The
delay by the applicant in seeking the condonation is considerable and
clearly inordinate. The explanation tendered in support of the
application is also unsatisfactory especially when considering the
concession by the applicant's counsel that the infraction was
deliberate. The applicant does not deserve the indulgence of the
court.
In
the result, the application is dismissed with costs on a legal
practitioner and client scale.
Ncube
Attorneys,
applicant's legal practitioners
Samukange
Hungwe Legal Practitioners,
respondent's legal practitioners
