In
chambers in terms of Rule 5 of the Supreme Court Rules.
This
is an application for condonation of the failure to note an appeal timeously as
well as an extension of time within which to appeal against a judgment of the
High Court dated 12 July 2012. The dies induciae for
noting the appeal expired on 2 August 2012. This application was filed on 15
August 2012.
The
background of the matter is as follows.
On
12 October 2011, the High Court granted a default judgment against the second
respondent (of which company the applicant is a Director) ordering it to pay, inter alia,
the sum of US$101,381=32 to the first respondent. Liability of the
applicant to pay the second respondent's debt was founded on section 318
of the Companies Act [Chapter 24:03].
In
terms of Rule 63 of the rules of the High Court:
“(1)
A party against whom judgment has been given in default, whether under these
rules or under any other law, may make a court application, not later than one
month after he has had knowledge of the judgment, for the judgment to be set
aside.
(2)
If the court is satisfied, on an application in terms of subrule (1), that
there is good and sufficient cause to do so, the court may set aside the
judgment concerned and give leave to the defendant to defend or to the
plaintiff to prosecute his action, on such terms as to costs and otherwise as
the court considers just.
(3)
Unless an applicant for the setting aside of a judgment in terms of this rule
proves to the contrary, he shall be presumed to have had knowledge of the
judgment within two days after the date thereof.”
The
applicant was therefore presumed to have had knowledge of the judgment on 14
October 2011 unless he proved to the High Court to the contrary.
On
15 December 2011, the applicant filed two applications in the High Court. One
was for condonation of failure by the applicant to file an application for
rescission of the abovementioned judgment within the period provided for in Rule
63. The other was an application for rescission of the said
judgment. Both matters were argued before the court a quo on 10 July 2012. The learned judge dismissed the
application for condonation. The application for rescission of the judgment,
dependent as it was on the success of the application for condonation, was also
dismissed.
It
is against this judgment refusing condonation that the applicant seeks to
appeal.
In
its founding affidavit, the applicant alleges that following the issuance of
the judgment on 12 July 2012, he received an email from his legal practitioners
on 17 July 2012 advising him to seek an opinion from counsel as to whether or
not an appeal should be noted against the judgment. On 24 July 2012, he
advised his legal practitioners to obtain an opinion from Advocate Morris. Instructions were immediately despatched to
Advocate Morris to draft Heads of Argument, but, regrettably, he was ill-disposed and the Notice of Appeal could not be drawn
within the peremptory time limits. The opinion has now been obtained from
counsel who has drafted the Notice of Appeal which is attached to the
application.
The
reference to Heads of Argument confuses the issue but I will assume in favour
of the applicant that the instructions were to give an opinion and to draft a
Notice of Appeal if necessary. The use of the expression “ill disposed” is also
confusing as it gives the impression that counsel was averse to the idea of
noting an appeal against the judgment. But, here, again, the applicant
could have meant that counsel was indisposed which would mean that
counsel by reason of sickness or otherwise was unable to attend to the matter
timeously. The confusion is not resolved on the papers as nothing more is said
on the issue.
The
application is opposed by the first respondent who avers that the application
is an abuse of court process and it ought to be dismissed with costs on a
punitive scale as a mark of the court's disapproval of the contemptuous conduct
of the applicant for the following reasons:
The
applicant has sought indulgences at various stages of the proceedings between
the parties. The main application, in case No. HC3795/11, the matter in which
default judgment was granted against the applicant and the second respondent,
was filed on 19 April 2011. The applicant did not file a notice of
opposition in the time provided and was time barred on 10 May 2011. The matter
was set down for default judgment on the unopposed roll on 18 May 2011. On 17
May 2011, a day before the set down date, the applicant sought the consent of the
first respondent to a withdrawal of the matter from the unopposed roll in order
to enable him to make an application for the upliftment of the bar obtaining
against him and to 'remedy his default'. The first respondent grudgingly
consented to the withdrawal of the matter from the unopposed motion
roll. Thereafter, it took the applicant thirteen days to file and serve
the application for upliftment of the bar on the first respondent.
Notwithstanding the fact that the respondent did not oppose the application,
the applicant failed to prosecute it and in order to make some progress in the
matter, the respondent filed a 'consent to the upliftment of the bar' on 12
September 2011 on condition the applicant filed its notice of opposition within
ten days of 13 September 2011 on which date the consent to the upliftment of
the bar was filed. The ten-day deadline was far more than the forty-eight hours
indulgence that the applicant had requested. However, once again, the applicant
failed to file its notice of opposition and default judgment was
entered. On November 2011, the first respondent served a copy of the
default judgment on the applicant.
In
any event, so it was argued, the applicant had not shown that there were any
prospects of success on appeal because the applicant had made a personal
undertaking to repay the debt which undertaking he had not honoured.
Condonation
is an indulgence which may be granted at the discretion of the court. It is not
a right obtainable on demand. The applicant must satisfy the court/judge that
there are compelling circumstances which would justify a finding in his
favour. To that end, it is imperative that an applicant for condonation be
candid and honest with the court.
Certain
criteria have been laid down for consideration by a court/judge in order to
assist it in the exercise of its discretion. Among these are;
(i)
The extent of the delay and the reasonableness of the explanation therefor;
(ii)
The prospects of success on appeal;
(iii)
The interest of the court in the finality of judgments; and
(iv)
The prejudice to the party who is unable to execute his judgment.
The
list is not exhaustive.
The
application was filed on 15 August 2012. The judgment was handed down on
12 July 2012. There are no affidavits from the applicant's legal practitioners,
and Advocate Morris, supporting the allegations made
concerning them by the applicant; neither does the applicant disclose the
reason why it took him seven days to respond to the email from his legal practitioners,
or the date on which instructions were despatched to Advocate Morris.The
dies induciae expired on 2 August 2012. The
explanation for the delay is itself confusing as I have already mentioned
above. I do not, in the circumstances, consider that the applicant has
given a reasonable explanation for the delay.
As
far as the prospects of success are concerned, the applications before the
court a quo were twofold. Since his
application for rescission of the default judgment was way out of time, the
applicant had to pass the hurdle of condonation of his failure to file that
application on time. In his application for condonation before the court a quo he stated that he was making the application 'out of
an abundance of caution' as he only became aware of the judgment against him on
13 December 2011. However, the court a quo found this
averment to be untrue because a copy of the order in question was delivered to
the applicant's legal practitioners by the legal practitioners of the first
respondent on 9 November 2011. The court a quo appears to have
proceeded on the basis that the applicant first had knowledge of the judgment
on that date and found that the application for rescission of the judgment was
out of time by six days. In view of the dishonest averment that he had
first seen the judgment on 13 December, that was a generous finding on the part
of the court a quo. The attitude that the
application was being made out of an abundance of caution smacked of arrogance
bearing in mind the lateness of the application, and ignored the fact that the
applicant was seeking an indulgence from the court. The following excerpt from
the judgment of the court a quo is instructive as to the
view which it took of the applicant's explanation for the delay in filing the
application for rescission of judgment:
“The
applicant did not attach any affidavit from his erstwhile legal practitioners
to explain the default. Apart from his mere allegation, there is nothing
to demonstrate that the applicant sought an explanation for the default from
his former legal practitioners. In a case such as the present where there
is a history of consistent default on the part of a litigant and the legal
practitioners are blamed for that default, it is necessary for the litigant to
avail proof, preferably in writing, that it has demanded an explanation from
the legal practitioners concerned…, on his part the applicant has not shown
what steps he took to protect his interests….,.
The
fact that the delay was of just below one week does not, on its own, assist the
applicant. See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt)
Ltd 1998 (2) ZLR 249 (S) at 253F-H.”
The
learned Judge then went on to consider the prospects of success:
“The
onus is on the applicant to show that he has a defence which has prospects of
success. The applicant seems to suggest that because the requirements of s318
of the Companies Act have to be established for him to be personally liable
then he has a defence which has prospects of success. That is not so. The
applicant must set forth facts upon which the prospects of success of its
defence may be assessed. The documents in the record show that the
applicant personally admitted to being liable to pay the second respondent's
debt owed to the first respondent.
In
any event, it has been held that in cases of “flagrant breaches of the Rules,
especially where there is no acceptable explanation therefore, the indulgence
of condonation may be refused whatever the merits of the appeal are. This
applies even where the blame lies solely with the attorney”. Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd, supra, at 254D-E;
Tshivhase Royal Council & Anor v Tshivhase & Anor 1992 (4) SA 852 (A)
at 859E-F.”
It
is now settled that an appellate court will not interfere with the exercise of
its discretionary power by a lower court unless it is shown that the lower
court committed such an irregularity or misdirection or exercised its
discretion so unreasonably or improperly as to vitiate its decision. Halwick
Investments v Nyamwanza 2009 (2) ZLR 400 (S); Sedco v Chimhere 2002 (1) ZLR 424
(S); ZFC Ltd v Geza 1998 (1) ZLR 137 (S).
It
has not been shown that the learned judge improperly exercised his discretion
in refusing condonation and certainly no allegation to that effect is contained
in the Notice of Appeal sought to be filed. Having regard to the history
of consistent disregard of the Rules, the learned Judge cannot be faulted in
the exercise of his discretion against the applicant.
In
addition, the very fact that the applicant has brought this application for
condonation without a satisfactory explanation for the delay is further
evidence of his disregard of the Rules of this Court. The paucity of
evidence explaining the reason for his default and the fact that he had placed
the blame for the default on his legal practitioners but filed no affidavits
from them in support of his allegations were among the reasons for the
dismissal by the court a quo of his
application for condonation. Yet, the applicant did not learn from that
criticism, but, instead, repeated the same mistake in the present
application. The applicant's conduct displays a disdain for the Rules of
Court and makes the inference irresistible that his desire to defend the matter
is not bona fide but merely a ploy to delay
the evil day to the prejudice of the first respondent who is entitled to
execute his judgment bringing finality to the proceedings.
In
view of the above, the appeal has no prospects of success.
The
application is therefore dismissed with costs.
