CHAMBER
APPLICATION
CHITAKUNYE
JA:
This
is an opposed chamber application for condonation of non-compliance
with Rule 38(1)(a) and extension of time within which to note an
appeal made in terms of Rule 43(3) of the Supreme Court Rules, 2018.
FACTUAL
BACKGROUND
In
August 2022, the applicant filed an urgent chamber application for an
interdict against the respondents in the High Court, Bulawayo. In the
application, the applicant sought to interdict the first and second
respondents from carrying out any mining activities on the
applicant's mining claims; namely - Berea 17, Berea 18 and Site 232
within certain coordinates.
The
applicant, on the one hand, and the first and second respondents, on
the other, have been involved in a dispute over mining claims
boundaries for some time. The dispute has been before the High Court
from as far back as March 2014 when the applicant approached the High
Court in an urgent chamber application in HC 386/14 seeking a
provisional order against the respondents. On 3 March 2014 the High
Court granted an order in these terms:
1.
The court orders and directs the fourth respondent to engage the
Regional Mining Surveyor to conduct and prepare a comprehensive
report pertaining to the dispute under Case No.HC 386/14.
2.
The matter be and is hereby postponed pending production of the
report in para 1 above.
The
fourth respondent was the Mining Commissioner N.O. (Masvingo Mining
District).
On
14 August 2014 the Principal Mining Surveyor, in the Regional Mining
Engineer's office, submitted his report to the Chief Government
Mining Engineer in compliance with the above court order.
That
report noted a number of irregularities in the disputed claims. These
included that whilst the claim numbers remained the same, the sizes
of the claims had been adjusted by enlarging some of them leading to
claims encroaching into each other. The report therefore recommended
that the claims should be adjusted down to the original sizes as at
the time of initial registration and that, in the process, the
principle of priority rights should be applied.
A
final order was granted in that case almost 6 years later on the 24
February 2020 in the following terms:
1.
The fourth respondent be and is hereby directed to implement the
findings and remove encroachments on the disputed claims in terms of
the survey report dated 14 August 2014 within 14 days of
this order.
On
4 June 2021, the Chief Government Mining Engineer (CGME),
M J Munodawafa, prepared his report on how the findings of
14 August 2014 as mandated by the court order of 24 February 2020
were to be implemented by reverting to the original claim boundaries
as at the time of original registration of the parties respective
claims. That report included a map and an explanation of how each
claim was to be affected.
The
parties were duly advised of the CGME's report on the
implementation of the resolution to the dispute by letter dated 31
January 2022.
On
28 August 2022 (or 22 August 2022 as contended by the respondents)
the applicant filed another urgent chamber application in the court a
quo
seeking to interdict the first and second respondents from conducting
mining activities on the disputed claims.
The
application was opposed by the first and second respondents and
judgment thereof was rendered on 20 October 2022 in the
presence of counsel for the contesting parties. The applicant was
also present when judgment was handed down.
The
judgment having been handed down on 20 October 2022, any
aggrieved party had 15 days from that date within which to note an
appeal in terms of Rule 38(1)(a) of the Supreme Court Rules, 2018.
That
period lapsed on 10 November 2022 and by that time no party had
filed or noted an appeal. When the applicant sought to appeal against
that judgment, she was out of time hence this application for
condonation and extension of time within which to appeal which was
issued on 5 December 2022.
In
making this application the applicant alleged that
judgment in the matter was handed down on 21 October 2022. Upon
requesting the written judgment, the applicant's legal
practitioners were initially advised that the record was with the
judge who had handed down the judgment, and later on, that the
judgment was available on the
Integrated Electronic Case Management System (IECMS)
platform.
The
applicant alleged that her legal practitioner's efforts to log in
to the system and retrieve the said judgment were futile. On 2
November 2022, efforts were made to obtain a copy of the judgment
from the first respondent's legal practitioner but only a part of
the judgment was availed.
The
applicant further alleged that her legal practitioners only managed
to get the written judgment on 7 November 2022, which judgment
she became aware of on 8 November 2022. Thereafter she met
her legal practitioners on 12 November 2022 and instructed them to
appeal against the court a
quo's decision.
This was, however, after the expiry of the dies
induciae on 10
November 2022, thus necessitating the filing of this application.
She
also alleged that
her legal practitioners unsuccessfully tried to upload the current
application on the IECMS platform on 21 November 2022. The
application was only successfully uploaded on the platform on
5 December 2022 due to technical breakdowns within the IECMS
platform.
The
application is opposed by the first and second respondents.
The
first respondent, in its opposing affidavit, contended that the
applicant did not file her urgent chamber application for an
interdict on 28 August 2022 but on 22 August 2022, with the
judgment being handed down on 20 October 2022, and not on 21 October
as submitted by the applicant.
The
first respondent averred that its legal practitioners got a copy of
the judgment from the High Court Civil Registry on 21 October on
which date the applicant's legal practitioners could also have
obtained the judgment.
It
contended that there is no evidence to prove the assertion that the
applicant was advised by the registrar of the court a
quo
that
the record was still before the judge who had delivered the judgment.
The
first respondent contended that the applicant was only trying to file
the appeal in light of the fact that the first and second respondents
started mining operations in November 2022, which the applicant
seeks to stop.
It
further contended that the applicant is misleading the court by
stating that her legal practitioners tried to access the judgment on
the IECMS platform as she does not have substantive evidence to
support her claim. In any case the matter had not been filed through
the IECMS platform.
There
was thus no reasonable explanation why they obtained the judgment on
7 November 2022 despite being aware of its existence prior to that
date and that the first respondent's legal practitioner had
obtained the judgment a day after the handing down on 20 October
2022.
On
the assertion that the first respondent's legal practitioners had
given applicant's legal practitioner a part of the judgment, Mr
Davira,
for the first and second respondents, deposed to an affidavit
refuting such allegation. He denied being approached by the applicant
or her legal practitioners for a copy of the judgment.
On
prospects of success of the appeal, the first respondent contended
that the applicant's intended appeal had no prospects of success as
the dispute between the parties was resolved. It thus prayed for the
dismissal of the applicant's application.
The
second respondent associated itself with the averments of the first
respondent.
The
two respondents also averred that a large chunk of the applicant's
founding affidavit comprised inadmissible hearsay.
They
contended that once that chunk is expunged there is virtually no
explanation for the delay in noting the appeal within the stipulated
period.
Equally,
there is no explanation for the delay in filing this application upon
realising that she was out of time.
The
two respondents contended that the applicant's legal practitioner
ought to have deposed to an affidavit confirming the challenges
alluded to by the applicant in obtaining the judgment and in noting
the appeal.
THE
LAW
It
is trite that for an application for condonation for non-compliance
with the rules and for extension of time within which to note an
appeal to succeed, the applicant should satisfy the court that he or
she has a reasonable explanation for the delay and non-compliance
with the rules and also establish that there are prospects of success
of the appeal.
This
position was reiterated in Forestry
Commission v Moyo 1997 (1) ZLR 254 (S) at 260E-G
wherein
Gubbay CJ set out factors to be considered in such an application as
follows:
“(a)
that the delay involved was not inordinate, having regard to the
circumstances of the case;
(b)
that there is a reasonable explanation for the delay;
(c)
that the prospects of success should the application be granted are
good; and
(d)
the possible prejudice to the other party should the application be
granted.”
See
also: Kombayi
v Berkout
1988
(1) ZLR 53 (SC);
Ester
Mzite v Damafalls
Investments
(Pvt) Ltd
SC
21/18.
It
is important to note that these factors are not individually decisive
on whether the application for condonation for late noting of appeal
and extension of time within which to appeal is granted. They are
considered conjunctively.
In
Kodzwa
v Secretary
for
Health & Anor
1999
(1) ZLR 313 (S), Sandura JA remarked as follows:
“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.”
See
also: Director
of Civil Aviation v Hall
1990
(2) ZLR 354 (S) at 357D-G.
APPLICATION
OF THE LAW TO THE FACTS
1.
Extent and reasonableness of explanation for the delay
The
judgment which the applicant intends to appeal against was handed
down on 20 October 2022. This current application was filed on 5
December 2022. The dies
induciae
to
note the appeal expired on 10 November 2022. The applicant is thus 17
days out of time. The delay in making this application is inordinate
given the circumstances of the case.
The
explanation given by the applicant for the failure to timeously note
the appeal is that her legal practitioners encountered difficulties
in obtaining the court a
quo's
judgment. The applicant also stated that her legal practitioners
advised her that they had managed to get the judgment on 8 November
2022, although she could not meet with them to discuss the judgment
as she had to attend a funeral in Chipinge. She avers that she only
gave them instructions to note an appeal on 12 November 2022.
There
appears to be a bit of confusion as to when the applicant obtained
the judgment in question.
In
her founding affidavit, the applicant stated that her legal
practitioners obtained the judgment on 7 November 2022 after having
failed to get it on 20 October, 25 October and 2 November 2022.
However, in her answering affidavit, she stated that her legal
practitioners got the judgment on 2 November 2022.
It
is common cause that, by her version, the applicant obtained the
judgment a few days before the dies
induciae
for
filing an appeal had expired. She, however, did not state when she
attended the funeral in Chipinge such that she could not meet with
her legal practitioners in order to map the way forward.
Of
interest is the fact that she also alleged that she got delayed in
making this application as a result of the malfunctioning of the
IECMS platform. It was her assertion that her legal practitioners
fruitlessly tried to upload the application from 21 November 2022
until 5 December 2022 when it was actually uploaded.
In
Chiutsi
v The Sheriff of the High Court and Ors
S-2–19
at
p3 this Court stated that:
“A
litigant's explanation for his or her non–compliance must be
devoid of any undertones of a complacency regarding the observance of
the rules of court and it must be adequate and tolerable.”
In
casu,
the applicant's explanation for the delay is difficult to believe.
This
is because the applicant is not certain on when her legal
practitioners obtained the court a quo's
judgment. The fact that the first and second respondents managed to
get the same judgment on 21 October 2022 without encountering all
these problems which allegedly bedevilled the applicant does not help
the applicant's cause.
In
addition, if the applicant's legal practitioners truly experienced
challenges in accessing the judgment and in uploading the application
on the IECMS platform, they ought to have deposed to an affidavit in
support of the applicant's assertions on the difficulties they
encountered.
Their
failure to do so suggests their lack of confidence in the story being
sold by their client. Such a conclusion is not farfetched in that
during the hearing of the application, the applicant's legal
practitioner conceded that the delay in successfully uploading the
application from 21 November to 5 December 2022 was because they
had not paid the required fees yet the applicant had not alluded to
this. She had instead stated that it was due to the malfunctioning of
the IECMS platform.
It
is apposite to note that paragraphs 12 to 16 and 28 of the
applicant's founding affidavit comprise hearsay evidence.
The
fruitless efforts to obtain a copy of the judgment and in uploading
the current application on the IECMS were allegedly encountered by
the applicant's legal practitioners in the absence and without the
participation of the applicant save for the events of the date of
handing down the judgment.
It
was therefore imperative for the applicant's legal practitioners to
depose to a supporting affidavit on the challenges alluded to by the
applicant in her founding affidavit if such assertions were to have
any probative value.
In
the absence of such a deposition, only the paragraphs that do not
contain hearsay evidence will be considered.
It
is trite that hearsay evidence in an affidavit is inadmissible in the
absence of an explanation as to why direct evidence is unavailable.
In
casu,
there was no explanation as to why the applicant's legal
practitioners could not depose to an affidavit on the challenges, if
any, they encountered in accessing the judgment and in uploading this
application on the IECMS platform. They are the same legal
practitioners who have been representing the applicant in this case.
Clearly, the explanation for failure to note the appeal within the
dies
induciae
and for the delay in applying for condonation after the expiry of the
dies
induciae
is without merit.
2.
Whether or not the Appeal has good prospects of success
Prospects
of success refers to the question of whether the applicant has an
arguable case on appeal.
In
Essop
v S
[2016]
ZASCA 114, the Court in defining prospects of success held that:
“What
the test for reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of success on appeal.”
In
casu,
the applicant avers that the intended appeal has good prospects of
success.
The
applicant alleged that the court a
quo
erred
by finding that she had no prima
facie
right
entitling her to the relief that she sought. The applicant's
counsel submitted that in terms of the order granted under HC 386/14,
which order was based on a survey report dated 14 August 2014,
she had been declared the legal owner of the mine in dispute and it
had been found that the respondents were encroaching on her legally
registered mine.
He
further submitted that the court a
quo
misinterpreted
this order in the sense that another report which was issued on 4
June 2021 replaced the one done on 14 August 2014.
I,
however, find that the applicant's intended appeal does not enjoy
good prospects of success. Contrary to what the applicant states, the
court a
quo did
not misinterpret the judgment under case number HC 386/14. The report
of 4 June 2021 was produced in line with the court's order in HC
386/14 and in terms of that report, the mining areas which the
applicant claims ownership over were found to have been irregularly
over-pegged.
For
instance, the claim Berea 17 was originally 4 hectares in extent and
yet it now covered an area of 17 hectares thus encroaching into
another miner's claim that had been registered prior to the
expansion. The same was observed of claims Berea 18 and Site 232.
In
compliance with the final court order of 24 February 2020,
the recommendations of the Chief Government Mining Engineer dated 4
June 2021 were availed to the parties on 31 January 2022 and the
necessary adjustments were effected by the fourth respondent under
case number HC386/14 on the disputed claims.
These
recommendations were not challenged.
The
net effect was that the mining claims were restored to their original
positions to eliminate the dispute. This is what was done in the
implementation of the court a
quo's decision in
HC 386/14. The decision and its implementation did not affect
ownership of the claims but simply reduced the claims to their
original sizes as at the time of original registration.
In
the circumstances there are no prospects of success on appeal. If
anything, the applicant is simply intent on prolonging a dispute that
was resolutely resolved. This will inevitably prejudice respondents
who are eager to comply with the adjusted claims and proceed with
their mining activities.
This
is a case where the applicant ought to be reminded of the need for
finality to litigation.
As
aptly noted by
Mcnally JA in Ndebele
v Ncube
1992
(1) ZLR 288 (S) at 290C-E:
“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. The time has come
to remind the legal profession of the old adage, vigilantibus
non dormientibus jura subveniunt
- roughly translated, the law will help the vigilant but not the
sluggard.” (my emphasis)
The
applicant lamentably failed to justify the need to exercise my
discretion in favour of granting her condonation and extension of
time within which to note an appeal.
COSTS
Though
the first and second respondents asked for costs on a legal
practitioner and client scale, it is trite that costs on a higher
scale must be justified. In this regard not much effort was made to
justify costs on a higher scale. In the circumstances, costs will
follow the cause on the ordinary scale.
DISPOSITION
The
applicant failed to satisfy the requirements for condonation and
extension of time within which to note an appeal.
Accordingly,
it is ordered as follows:
The
application be and is hereby dismissed with costs.
Mutendi,
Mudisi and Shumba,
applicant's legal practitioners
Gundu
Dube and Pamacheche Legal Practitioners, 1st
and 2nd
respondents legal practitioners
