Before, ZIYAMBI JA,
in chambers in terms of r 5 arw r 31 of the Supreme Court Rules.
This is an application for condonation of the late
noting of an appeal and an extension of time within which to appeal against a
judgment of the High Court (BHUNU J).
The judgment
was delivered on 19 May 2010. The applicants filed an invalid notice of
appeal on 21 May 2010. The invalidity of the notice of appeal was pointed
out to the applicants' legal practitioners in heads of argument filed by the
respondents on 3 August 2010. On 22 October 2012, the matter came before
the Supreme Court for hearing and the issue of the invalidity of the notice of
appeal not having been addressed by the applicants, the matter was struck off
the roll. The present application was filed on 1 November 2012.
Bearing in mind the date of the judgment sought to be appealed against, it is
clear that the delay in making this application is inordinate.
It is now trite that:
“The broad principles an appellate court would have regard
to in determining whether to condone the late noting of an appeal are: the
extent of the delay; the reasonableness of the explanation proffered for the
delay; and the prospects of success of the appeal. See de
Kuszaba-Dabrowski et Uxor v Steel NO 1996 RLR 60 (A)at 62 and 64;
1966 (2) SA 277 (RA); HB Farming Estate (Pty) Ltd & Anor v
Legal and General Assurance Society Ltd 1981 (3) SA 129 (T) at
134A-B; Kombayi v Berkhout 1988 (1) ZLR 53 (S) 57G-58A. And as
BEADLE CJ observed in R v Humanikwa 1968 (2) RLR 42 (A) at 44B:
“The longer the delay in applying
for condonation in the late noting of an appeal the more certain the court must
be that there is a real chance of the appeal succeeding.””
See Jensen v Acavalos 1993 (1) ZLR 216 (S) at p
220F-G.
The explanation given by the
applicants for the delay is that the matter was being handled by the late
George Chikumbirike who filed the defective notice of appeal and who was
ill at the time that the respondents' heads of argument for the appeal
hearing were served on his firm. Mr Chikumbirike died on 4 May 2011 some
9 months after the filing of the said heads of argument. Mr Kanengoni,
an associate in the firm Chikumbirike & Associates, who assumed
the conduct of the applicants' case after the demise of Mr Chikumbirike,
said that he only looked at the record in this matter three days before the
appeal hearing on 22 October 2012. Although fully aware of the defects in
the notice of appeal, he nevertheless made no attempt at any time before the
hearing to rectify the invalidity.
Legal practitioners are
expected to know and comply with the Rules of the Court. It is bad enough
to overlook a provision of the Rules but to deliberately refrain from
compliance therewith when the oversight or non-compliance has been pointed out
by a colleague is to exhibit a disdain for the Rules which will not, except in
special circumstances, be readily condoned. The explanation proffered for the
delay is in my view unacceptable.
This brings me to the consideration of the
applicants' prospects of success on appeal. In this regard it has been
held that in cases of flagrant breaches of the rules, especially where there is
no acceptable explanation therefor, 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.
See Paul Gary Friendship v
Cargo Carriers Limited & 2 Ors SC 1/13;
Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR
249(S)at p 254 D-E;Tshivhase Royal Council & Anor v Tshivhase &
Anor 1992 (4) SA 852(A) at p 859E-F.
The facts of the matter are these. On 23
September 2007, the first applicant who was then a Bishop of the Anglican
Church of the Province of Central Africa, the first respondent in this matter,
and head of the Diocese of Manicaland, addressed a letter to the Archbishop of
the first respondent and the Bishop of Upper Shire notifying them of the
withdrawal of the Diocese of Manicaland from the first respondent. The
letter read as follows:
“Your Grace,
RE: NOTIFICATION OF WITHDRAWAL OF THE ANGLICAN
DIOCESE OF MANICALAND FROM THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA.
The above subject refers.
To put to rest speculation from your office, the
Church of the Province of Central Africa and the rest of the Anglican
community, this letter comes to you as confirmation that the Anglican Diocese
of Manicaland has withdrawn from the Church of the Province of Central Africa
with effect from 21 September 2007.
The resolution by the Diocesan committee which is
attached and my submission to the Provincial Synod when I moved a motion on the
need for the dissolution of the Province also attached and the minutes of the
standing committee is a statement of emphasis on this matter by the standing
committee.
This your Grace is the kind of seriousness that we take of
the matter.
Yours faithfully
Signed
The Rt Revd. Elson Jakazi
Cc All Bishops of the Church
of the Province of Central Africa.”
The Bishops of the first
respondent replied by issuing a statement acknowledging that the first
applicant and his supporters had personally resigned or withdrawn from the
first respondent and accepting the first applicant's resignation as an
individual but asserting that the Diocese of Manicaland could not be
withdrawn from the first respondent except in accordance with the latter's
constitution. The statement read in part:
“We unanimously concurred that:
1. The Fundamental
Declarations, Articles of the Constitution, Canons and laws of the C.P.C.A. do
not permit the unilateral withdrawal of a Diocese from the Province even if,
as alleged by Bishop Jakazi, but challenged by many, the Diocesan
Standing Committee of that Diocese unanimously expresses a desire to no longer
be associated with the Province.
2. Bishop Jakazi was, inter
alia, expressing his personal attitude and intention to sever all ties
with the Province and was himself withdrawing from the Province.
3. In the circumstances, we
accepted his personal resignation and withdrawal from the body of the C.P.C.A.”
Thereafter, on 31 October 2007, in a letter written on his
instructions by his Diocesan Registrar, the first applicant sought to retract
his withdrawal from the first respondent. The retraction was not accepted
by the first respondent who, through its Bishop Albert Chama, wrote back as
follows:
“We write to advise you that following the letter of
31 October 2007 written on your instructions by the diocesan Registrar of
Manicaland, Mr Peter Makombe retracting your withdrawal from the Church of the
Province of Central Africa as per your letter of 23 September 2007, addressed
to the former Archbishop of Central Africa Dr. Bernard Amos Malango and copied
to all bishops of the Province. The Episcopal Synod held at the hotel on 20
December 2007 considered your letter of retraction and decided to uphold the
earlier decision taken and communicated to you that you are no longer a Bishop
of the Church of the Province of Central Africa.
Consequently we as dean of the Province of Central
Africa immediately appoint a Vicar General for the Diocese of Manicaland
pending the election of the next Bishop.”
Following upon this letter, the first respondent proceeded
to appoint second and third respondents as Bishops. This prompted the
applicants to file an urgent chamber application in the High Court seeking an
order setting aside the appointment of the second and third
respondents and declaring the first applicant to be the reigning bishop for the
Diocese of Manicaland until such time as the applicants' appeal has been
determined in terms of the provisions of the first respondent's constitution
and canons.
The learned Judge, in dismissing the application, said:
“It is an established rule that resignation is a
unilateral voluntary act which takes effect as soon as the resignation has been
communicated to the correct person or authority. In the case of Muzengi
v Standard Bank & Anor (2) ZLR 137 this Court held that a
letter of resignation constitutes a final act of termination by an employee.”
What this means is that once the first applicant's
resignation letter was received by the Archbishop of the Church of the Province
of Central Africa the first applicant automatically ceased to be an employee or
member of that church organization without any further formalities.
Having ceased to be an employee or member of the
church organization he automatically stripped himself of any rights and privileges
arising from the contract of employment, membership or his status as Bishop of
that church organization. The 1st applicant was not
dismissed. His was a voluntary act to resign from that church
organization. That being the case, he can hardly be heard to complain or
cry foul. Any appeal or review which he may launch means that he is
appealing or seeking a review of his own conduct. This is wholly
untenable and illogical such that it must be incompetent at law.
The applicant having voluntarily divested himself of
all rights and privileges accruing to a member, employee or Bishop of the
Anglican Church of the Province of Central Africa he has no residual rights to
meddle in the affairs of that organization by barring the appointment of
replacement staff.”
The facts are common cause. The law is clear.
Resignation is a unilateral act which takes effect upon being communicated.
See Riva v NSSA 2002 (1) ZLR 412 (H), at p 414A-B where
the Court said:
“It is common cause between
parties that the giving of notice is a unilateral act; it requires no
acceptance thereof or concurrence therein by the party receiving the notice,
nor is such party entitled to refuse to accept such notice and to decline to
act upon it. It seems to me to follow that notice once given is final and
cannot be withdrawn except obviously with consent…”
See also Muzengi v Standard Bank Zimbabwe &
Anor 2002 (1) ZLR 334 (S) at p 340A-F.
The above cases clearly show that the first applicant could
not unilaterally withdraw his resignation from the first respondent.
The first applicant has submitted that he did not
withdraw in his individual capacity but as a diocese. This issue was
settled in The Church of the Province of Central Africa v The
Diocesan Trustees for the Diocese of Harare SC48/12 where the Bishop of
Harare raised the same argument as is now being raised by the applicants
herein. The Court held that the Bishop of Harare had resigned his office.
Further, as the respondents
submitted, the letter of resignation demonstrates quite clearly that the stated
position taken therein was that of the first applicant and others who wished to
withdraw from the first respondent. “This, your grace is the kind of
seriousness that we take of the matter” said the first applicant in
the letter.
Moreover since the Diocese itself
could not be withdrawn by the applicants from the first respondent it seems to
me the respondents are correct in their submission that the applicants were
withdrawing in their individual capacities.
In view of the above the applicants have not
established that there are any prospects of success on appeal.
It follows, that in the
result, the application must fail.
The application for leave to appeal is accordingly
dismissed with costs.
Chikumbirike & Associates, applicants' legal
practitioners
Gill, Godlonton & Gerrans,
respondents' legal practitioners
