Before:
GWAUNZA JA,
in chambers in terms of Rule 5 of the Supreme Court Rules.
This
is an application filed in terms of Rule 31(2) of the Supreme Court
Rules.
On
the 9 of December 2013, and upon reading documents filed of record, I
dismissed the application with no order as to costs. No opposing
papers were filed by the respondent. The applicant has requested that
I furnish him with reasons for the judgment, and these are provided
herein.
The
applicant filed an application in the High Court, on a certificate of
urgency. The court a
quo,
on 26 June, 2013 issued the following decision;
“There
is no urgency in this matter warranting this matter to be allowed to
jump the queue. The applicant has had all the time in the world to
take the initiative to clear his name. I decline to treat this matter
as urgent.”
Upon
a request from the applicant, the court a
quo
provided
written reasons for the decision not to hear the matter on an urgent
basis. The court a
quo
in
this respect relied on the case of Kuvarega
vs Registrar-General and Anor
(1998 (1) ZLR 188 (H)) at 193F-G in which the following principle was
set out:
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning, a matter is urgent if at the time the need to act arises,
the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the deadline draws near is not
the type of urgency contemplated by the rules.”
The
learned Judge's assessment of the evidence before him indicated
that the genesis of the applicant's problems with the respondent
dated back to 2003, spilled over to 2007 and then to 2009 and
thereafter.
The
Judge found that the applicant had been fully aware of the conduct of
the respondent towards him and that he had always had the opportunity
to take the initiative to clear his name. He had chosen not to do so
and had only rushed to court on an urgent basis on 24 June 2013. The
court concluded that the applicant's conduct in this respect was
not what the whole concept of urgent applications contemplated.
The
applicant on 16 September 2013 then sought the leave of the court a
quo
to appeal to this court against the decision declining to hear his
matter on an urgent basis.
The
court a
quo
having dismissed that application, the applicant then filed the
present application before me.
It
is essentially an application where the applicant is seeking my leave
to appeal to this court, against the decision of the judge a
quo
that his matter before that court was not urgent.
To
properly determine this matter, I consider it pertinent to consider
two main issues. These are: (i) firstly, the reasoning of the court a
quo,
which led to the decision that it reached: and
(ii)
secondly, the question of whether or not the intended appeal has any
prospects of success.
It
is my view that the requirement for the applicant to file a copy of
his Notice and Grounds of appeal together with an application of this
nature, is to enable this court to make a proper assessment of the
applicant's prospects of success on appeal.
Having
considered the papers before me, which included the reasoned judgment
of the court a
quo
as well as the applicant's affidavits, I find myself in full
agreement with the judge's reasoning and determination.
I
find, more to the point, that the applicant did not place before the
court a
quo,
nor before me, any evidence to show that there was, in his
application, the type of urgency that would have merited a hearing on
an urgent basis.
In
other words he failed to show that at the time the need to act arose,
the matter could not wait.
I
would therefore have dismissed the application to hear the matter on
an urgent basis, in the same manner that the court a
quo
did, and for the same reasons.
As
already indicated, I proceeded to do the same in
casu.
The
applicant properly filed a copy of his notice and grounds of appeal.
A synopsis of his grounds of appeal shows that he intends to premise
his appeal on two main grounds, both essentially factual:
(i)
Firstly the applicant seems to argue that the court a
quo
improperly interposed and considered together, two cases that had
different HC numbers and were therefore unrelated.
This
was in reference to the fact that the urgent chamber application was
given the number HC4997/13 while the chamber application for leave to
appeal was given the number 5794/13.
A
perusal of the latter shows that both numbers are, properly in my
view, endorsed on the right hand corner of the document entitled
“Chamber application for Leave to Appeal”, clearly showing that
the two cases were related.
Apart
from this ground of appeal indicating what seems to me to be a
misappreciation by the applicant, of the HC numbering system and its
implications in related cases, it is evident that the issue has no
bearing on the merits of whether or not the case merited an urgent
hearing a
quo.
I
find therefore that there is little, if any, prospect of success on
appeal based on this ground.
The
applicant alleges in his other main ground of appeal that there was
evidence on record to show that, contrary to the finding by the court
a
quo,
he had in fact timeously made the effort to clear his name over the
period stretching from 2003.
I
have already associated myself with the reasoning of the judge a
quo
and his assessment of the evidence that led to the decision that he
reached on this point and will therefore not repeat my reasons for
doing so.
This
ground of appeal in my view lacks merit and carries with it no
prospects of success on appeal.
It
was for these reasons that I dismissed the application, on the papers
and with no order as to costs.
It
should be noted however, that the dispute between the applicant and
the respondent is still pending before the High Court. It will take
its place in the “queue” of ordinary court applications, and be
set down for hearing when its turn comes.
It
occurs to me that by pursuing the course of action that he has in
casu,
the applicant might possibly have delayed or may delay, progress in
the finalization of the matter.
