Before
MALABA DCJ:
In
Chambers in terms of r31 of the Rules of the Supreme Court (“the
Rules”).
This
is an application for an extension of time in which to note an appeal
against the whole judgment of the High Court given on 27 February
2008.
The
applicant and the third respondent were married to each other until
the High Court granted him a decree of divorce on 22 February 2005 in
case No. HC8877/03. The High Court made an order with regard to the
division of the assets of the spouses.
Of
relevance to the determination of this application is the fact that
the third respondent was awarded 80% of the market value of the
matrimonial house situated at Stand No. 2711 Mahogany Circle, New
Marlborough, Harare (“the property”). The applicant was
awarded
20% of the market value of the matrimonial house.
The
order further directed that:
“5.
If the parties cannot agree on the value of the matrimonial home
within ten (10) days of the date of this order, the property is to be
evaluated within 30 days thereafter by a registered firm of
Estate
Agency agreed upon by the parties legal practitioners or failing such
agreement by an Estate Agent nominated by the Registrar of this
Court.
6.
The cost of evaluation are to be borne by both parties in equal
shares.
7.
The plaintiff shall pay to the defendant on or before the 1st
of
November 2005, 20% of the net value of the property.
8.
Failing compliance with the provisions of clause 7 above, the
matrimonial home shall be sold on the open market to the best
advantage and the net proceeds therefrom to be shared between the
parties as set out in the paragraph above.”
On
16 June 2004 the applicant had obtained from the High Court an
interdict prohibiting the second respondent from registering transfer
of the property without her prior written consent.
On
11 August 2005 the first respondent entered into an agreement of sale
with the third respondent in terms of which he sold and she purchased
the property for $750,000,000.00. She paid the purchase price to the
third respondent's conveyancers.
At
the time she entered into the agreement of sale, the first respondent
was not aware of the court order awarding the applicant 20% of the
value of the property.
When
she subsequently got to know of the order she raised the question of
its possible effects on the sale of the property. The third
respondent assured her that the order would not affect transfer of
the property into her name provided the applicant was paid the 20%
share of the value of the property.
Upon
request by the third respondent, she authorized the release of
$150,000,000.00 which was 20% of the purchase price into his bank
account for payment to the applicant.
The
applicant confirmed in the founding affidavit that an amount of
$149,000,000.00 was paid into her bank account.
After
the payment of the purchase price by the first respondent, the
applicant instituted an appeal against the order of the High Court.
A
perusal of the record in case No. HC8877/03 shows that the appeal had
been noted out of time.
It
appears that there was an application for an extension of time in
which to note the appeal which was granted.
The
notice of appeal, however, remained fatally defective for
non-compliance with r29(1)(d) of the Rules. Under the heading
'Grounds of Appeal' it is stated as follows:
“1.
With new evidence before the court, the court a
quo's apportionment
of shares in the matrimonial house called House No. 2711 Mahogany
Circle, New Marlborough, Harare is amendable.
2.
Without all evidence the court a
quo
failed to award Stand 6839 Borrowdale.”
By
no stretch of imagination can it be said that what is stated
constitutes grounds of appeal against the order given by the court a
quo
on 22 February 2005 in case No. HC8877/03.
In
light of the appeal which the applicant had purported to institute,
the third respondent sought to cancel the agreement of sale.
The
first respondent rejected the cancellation and commenced action in
case HC1545/06 claiming an order against the third respondent of
specific performance of his obligation to transfer the property into
her name. She also claimed an order of upliftment of
the caveat
of 16 June 2004 and eviction of the applicant and all those claiming
the right of occupation of the property through her.
The
third respondent did not appear at the trial to oppose the claim. A
default judgment was entered against him. That had the effect of
confirming the third respondent's right to transfer of
the
property.
The
court a
quo
found that the first respondent had adduced sufficient evidence to
establish her entitlement to an order of upliftment of the bar. It
granted the order. The decision took into account the fact that the
applicant had not adduced evidence in opposition of the
granting
of the order.
The
applicant had defended the claim on the ground that the order of 22
February 2005 gave her a real right in the property.
The
court held that her right was to have 20% of the proceeds of the sale
of the house. It held that the right was enforceable against the
third respondent and could not operate to defeat the transfer of the
property to the first respondent in terms of the agreement of sale.
The
judgment was given on 27 February 2008.
The
Registrar had given notice to the parties through the roll of the
court relating to unopposed matters for that day that the judgment
was to be handed down.
Whilst
the legal representative of the first respondent attended court to
note the handing down of the judgment neither the applicant nor her
legal practitioner attended.
No
appeal was instituted against the judgment within fifteen (15) days
as is required by r30(a) of the Rules.
The
applicant averred in the founding affidavit that she had knowledge of
the judgment for the first time on 22 August 2008 when a copy of it
was served on her by the Deputy Sheriff.
On
26 August she filed a notice of appeal with the Registrar. The
document contained all the formalities required by r29 to be stated
in a notice of appeal.
Strict
compliance with the mandatory requirements of the provision of r29
suggests that the applicant had read the relevant Rules before noting
the appeal.
The
notice of appeal was, however, fatally defective because it was filed
six months after the date the judgment appealed against was given.
Rule
30(a) had not been complied with.
No
application for condonation of failure to institute the appeal within
fifteen (15) days of the date the judgment was given and extension of
time in which to appeal was made in terms of r31 of the Rules.
The
explanation given by the applicant for non-compliance with the Rules
was that she was a self-actor. She said she did not know that she was
required to make an application for condonation of non-compliance
with r30(a) and extension of time in which to appeal.
She
said she did not know that the notice of appeal was defective.
On
13 November 2008 the first respondent's legal practitioners wrote
to the Registrar drawing her attention to the defective notice of
appeal. The letter was copied to the applicant.
Notwithstanding
the fact that the letter made it clear that the effect of the
defective notice was that there was no appeal against the judgment,
the applicant did not act to regularize the situation.
On
25 November 2008 the Registrar wrote to the first respondent's
legal practitioners accepting the contention that there was no appeal
against the judgment of the High Court given on 27 February 2008. The
letter was copied to the applicant.
She
did not act immediately to secure compliance with the rules of court.
It was sixteen (16)
days later that the applicant made an
application for extension of time in which to appeal.
The
explanation for failure to act after having been made aware of the
defective notice of appeal and consequences thereof was again that
the applicant was a self-actor. She pleaded ignorance of the
requirements of r31.
The
factors a court has to consider in the determination of an
application for condonation and extension of time in which to appeal
have been stated in numerous decisions of this Court and the High
Court.
In
Maheya
v Independent African Church
S-58-07 it is stated at p5 of the cyclostyled judgment that:
“In
considering application for condonation of non-compliance with its
rules the court has a discretion which it has to exercise judicially
in the sense that it has to consider all the facts and
apply
established principles bearing in mind that it has to do justice.
Some of the relevant factors that may be considered and weighed one
against the other are:
(i)
the degree of non-compliance;
(ii)
the explanation therefor;
(iii)
the prospects of success on appeal;
(iv)
the importance of the case;
(v)
the respondent's interests in the finality of the judgment;
(vi)
the convenience to the Court; and
(vii)
avoidance of unnecessary delays in the administration of justice.”
See
De
Kuszab Dabrowski Uxor v Steel N.O.
1966 RLR 60 (A) at 162B-E; Bishi
v Secretary for Education
1989 (2) ZLR 240 (H) at 242D-243C; Director
of Civil Aviation v Hall
1990 (2) ZLR
354 (S).
The
period of time marking the delay by the applicant in taking steps to
note a valid appeal is nine months. The right to appeal is now
dependent on the exercise of the court's discretion.
The
application was made on 8 December 2008. The inordinate delay may be
divided into three parts:
(i)
The first part extended from 27 February to 26 August 2008.
(ii)
The second extended from 27 August to 25 November.
(iii)
The last part extended from 26 November to 7 December 2008.
The
applicant gave different explanations for her inaction during each of
the three periods of delay.
(i)
In relation to the first period of delay, she said that she had no
knowledge that the judgment had been given on 27 February.
(ii)
In respect of her inaction in the second part of the period of delay,
she said as a self-actor she was not aware of the requirements of
r30(a). She said she was also not aware of the provisions of r31
providing a remedy to a party who would have failed to exercise the
right to appeal against a judgment of the High Court timeously.
(iii)
She had no explanation for her inaction during the last part of the
period of delay.
Is
the explanation of the delay reasonable?
Apart
from saying she did not know that the judgment had been delivered on
27 February 2008 the applicant did not say why steps were not taken
by her or her legal practitioners which would have enabled her to
acquire that knowledge.
The
court a
quo
had reserved judgment at the end of hearing of evidence in the trial
of the action.
The
applicant and her legal practitioners were under the duty to make
regular inquiries with the Registrar as to when the judgment would be
given.
To
provide a reasonable explanation for compliance with rules of court
it is generally necessary to say why the applicant or his legal
representative failed to act in a manner a diligent litigant or his
legal practitioner would reasonably have been expected to act.
In
Metro
International (Pvt)
Ltd
v Old Mutual Property Investment Corporation (Pvt)
Ltd
S-31-2008 the applicant company could not explain why its legal
representative failed to take necessary steps to get knowledge of
when the judgment it sought to appeal against had been given. At p 4
of the cyclostyled judgment it was stated that:
“It
is clear that the applicant's legal practitioners were under a
duty, having taken instructions to represent it in the application at
the High Court, to make regular inquiries at the Registry, confirmed
by letters, as to whether the judgment had been given and if not,
when it was to be handed down.
A
vigilant litigant interested in the speedy outcome of the application
would have satisfied himself that the legal practitioners made
regular inquiries for the judgment. Lack of knowledge of a judgment
due to the failure to make necessary inquiries in circumstances where
one is under a duty to do so cannot be an acceptable explanation for
non-compliance with Rules of the Court. The applicant could not
remain inactive until notification of the judgment was given by the
Registrar.”
In
this case notification of the judgment given on 27 February 2008 was
given to the parties by the Registrar in a Court Roll of cases to be
dealt with on that day. The applicant and her legal practitioner did
not avail themselves of the official source of the information on the
delivery of the judgment.
In
my view, she cannot escape the consequences of failure to diligently
pursue a judgment that befell the applicant in Metro
International's case
supra.
The
explanation of failure to apply for an extension of time in which to
appeal when the applicant got to know of the date the judgment was
given is also unacceptable.
The
applicant could not have been ignorant of the requirements of r30(a)
when she drew up a
notice of appeal which contained all the
necessary formalities of a valid notice of appeal prescribed under
r29.
The
letter of 13 and 25 November drew the applicant's attention to the
fact that no appeal was pending before the Supreme Court because none
had not been instituted within fifteen (15) days of the date the
judgment was given. She was advised of the need to make an
application for extension of time in which to appeal if she wished to
have the situation regularized.
To
plead ignorance of the Rules in the circumstances on the ground that
one is a self-actor is unlikely to persuade any reasonable Court to
hold that the applicant was not culpable for the consequences of her
own inaction.
There
was no explanation for the failure to apply for extension of time in
which to appeal for sixteen (16) days after the applicant received
the letter of 25 November 2008.
In
the Director
of Civil Aviation
case supra
at p 358B-C GUBBAY CJ cited with approval from Bosman
Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd
1980 (4) SA 794 (A) where at p799D-E MULLER JA said:
“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 reasonable
explanation for some periods of delay and indeed, in respect of other
periods of delay, no explanation at all, the application should not
be granted whatever the prospects of success may be.”
As
I am unable in this case to go so far as to hold that the applicant
was in flagrant breach of the Rules of this Court, I have considered
the question whether there are good prospects of the appeal
succeeding despite the finding that there is no reasonable
explanation for the inordinate delay in making the application for
extension of time in which to appeal.
The
grounds of appeal were stated as being that:
“1.
The court a
quo
erred at law and in fact in failing to uphold that the appellant's
appeal in HC8877/03 had an effect of suspending the whole judgment of
the High Court in the divorce proceedings.
2.
The court a
quo
erred in fact and at law by holding that the appellant had no real
rights over the disputed property known as stand 2711 Marlborough
Township of Stand 2575 Marlborough Township.
3.
The court a
quo
misdirected itself by failing to regard the appellant's evidence
that the interdict obtained by the appellant on 16 June 2004 had an
effect of interdicting any transfer of the disputed property pending
the determination of the appeal in case no. HC8877/03.
4.
The court a
quo
erred in fact and at law by failing to uphold that the cancellation
of the agreement of sale by the third respondent was valid and
lawful.”
One
looks at the founding affidavit for evidence of the facts stated as
grounds of appeal.
Considering
these facts together with the reasons for the judgment appealed
against and applying the relevant law, one can decide whether there
are good prospects of success on appeal.
All
that is stated in the founding affidavit on the grounds of appeal is
this. The applicant said:
“20.
I strongly believe that there are prospects of success on appeal. I
say so because -
1.
As appears from the Notice of Appeal I insist that there was a valid
and lawful cancellation of the agreement of sale.
2.
I was also not satisfied by the court's ruling that the issue
between me and the first respondent was whether or not I had a real
right to the property.
3.
For instance if the appeal court in case No. HC8877/03 were to up my
share from the 20% given by the court a
quo
to a higher percentage, this would affect the issues of
enforceability of the judgment. This aspect is normally addressed by
way of giving one party a time frame within which to pay out the
other party of its share failing which that property can be sold and
the proceeds are shared.
4.
Assuming the transfers were to be done to the so called innocent
buyer, and then the appeal court were to up my share, such court
order would be difficult to enforce. The house in a case of this
nature is a surety that one gets their share.”
Nothing
is said in the founding affidavit about the first ground of appeal.
What
was stated in the notice of appeal against the judgment of 22
February 2005 did not constitute grounds of appeal required under
r29(1)(d) of the Rules. There would be no valid
appeal pending
in the Supreme Court against the judgment in case HC8877/03.
In
any case the appeal would not have been instituted against the whole
judgment of the court a
quo.
There was no appeal against the order granting the decree of divorce.
The court a
quo could
not have erred in failing to hold that the appeal suspended the whole
judgment in case HC8877/03 when in fact the appeal could not have had
that effect.
It
is clear from the founding affidavit that the applicant took issue
with the fact that the court a
quo
perceived the question in dispute between her and the first
respondent as having been whether she had real rights in the
property.
Contrary
to the contention advanced in argument on her behalf by Mr Samkange,
the applicant was not even claiming that the order of the court in
case HC8877/03 gave her real rights in the property.
She
did not challenge the fact that the right she was given was 20% of
the share of the value of the house. Her view was that 20% of the
value of the property was too low.
These
facts do not render any support to ground No. 2 of the defective
notice of appeal.
The
law is to the effect that the person in whose name immovable property
is registered is prima
facie
its owner.
The
order of the court a
quo
did not alter the fact that as the third respondent was the person in
whose name the house was registered, he was the sole holder of the
real rights in it.
It
must be borne in mind that the rights of spouses in the division,
apportionment or distribution of assets upon dissolution of marriage,
are depended upon discretionary remedies.
In
this case in the exercise of the broad discretion conferred on it,
the court in case HC8877/03 gave the applicant a right to 20% of the
value of the property as opposed to 20% share of the real rights in
the property. It was not a share in a joint ownership of the house.
The
third respondent could sell the property to a third party without the
consent of the applicant
provided he paid her 20% of the
proceeds.
That
right did not give her power to veto
the exercise by him of the right to dispose of all the real rights he
alone held in the house as long as the sale met the conditions
prescribed by the order.
There
is no basis in fact on which the allegation in ground No. 2 of the
defective notice of appeal could be established.
On
the third ground the interdict did not in fact have the effect the
court a
quo
was accused of having disregarded. It preceded the judgment in
HC8877/03 and did not interdict transfer of the
property pending
determination of the appeal against that judgment. What the interdict
prohibited was the registration of transfer of the property without
prior written consent of the applicant. In other words the interdict
would have given the applicant an absolute right to veto
the transfer of the property even when the subsequent order gave her
the right to 20% of value of the property with no power to veto
the sale of the property to best advantage.
So
even if the applicant adduced evidence it would not prove that the
interdict had the effect of prohibiting transfer of the property
pending
the determination of the appeal in case No. HC8877/03.
(The underlining is mine for emphasis)
Nothing
of substance was said in the founding affidavit on ground No. 4.
Cancellation
of a contract is lawful when it is in accordance with the terms and
conditions of the contract between the parties. It is also lawful
where there has been a repudiation of the contract which is accepted
by the innocent party as a breach relieving him from future
performance of his obligations, otherwise the innocent party has a
right to elect to accept or reject the unilateral act by the other
party to try and bring a contract to an end. If he rejects the
repudiation as a breach of contract the innocent party can hold the
other party to his side of the bargain provided he discharges his own
obligations under the contract.
The
court a
quo
found that the third respondent had not shown that the cancellation
was in terms of the agreement of sale. It accepted the evidence of
the fact that the first respondent had elected to reject the
cancellation of the contract by the third respondent as a breach. The
first respondent was found to have held the third respondent to his
side of the bargain.
The
applicant did not place before me facts on the basis of which a
determination could be made to the effect that there were good
prospects of ground No. 4 succeeding on appeal.
The
application is accordingly dismissed with costs.
Byron
Venturas & Partners,
applicant's legal practitioners
Scanlen
& Holderness,
first respondent's legal practitioners
