This is an application for dismissal of appeal brought in
terms of Rule 36(1) as read with Rule 46(5) of the Rules of the Supreme Court,
1964.
On 12 February 2014, the applicant obtained a judgment in
its favour in case number HC3624/12 for the return of specified shares and
share certificates. On 18 February 2014, the respondent filed a Notice of
Appeal against the said judgment with this court. On 4 April 2014, the
applicant filed this application seeking an order in the following terms:
“It is hereby ordered that:
1. The Notice of Appeal and Grounds of Appeal under case
number SC68/14 is hereby dismissed.
2. The Respondent pays costs on an attorney and client
scale.”
The uncontested facts of the matter are that after the
respondent's legal practitioners filed a Notice of Appeal on 18 February 2014,
the applicant's legal practitioners wrote to them on 27 February 2014 demanding
security for costs. As the appeal was noted on 18 February 2014 it
accordingly followed that in terms of Rule 46(5), security for costs ought to
have been furnished by 18 March 2014. In their letter dated 27 February
2014, to the respondent's legal practitioners, the applicant's legal
practitioners made reference to the provision for security for costs in Rule
46(5) and demanded the provision of security for such costs in the sum of
USD$55,000=. By letter dated 5 March 2014, the respondent's legal practitioner
indicated that they appreciated the import of Rule 46(5) and were taking
instructions from their client. On 6 March, the applicant's legal practitioners
again wrote to the respondent's legal practitioners indicating, among, other
things, that the applicant was inclined to exercise the option to have the
appeal dismissed on the basis that the respondent had failed to comply with the
cited Rules of this Court.
There was no reply to this letter.
The applicant's legal practitioners, yet again, wrote, on
26 March 2014, referred to the previous correspondence referred to earlier
herein and made demand for payment of security for costs in the sum of US$55,000=
by 1 April 2014 failing which they had instructions to file an urgent chamber
application for dismissal of the appeal. The demand was not met. For this
reason, and guided by the Rules, this application was then filed on 4 April
2014.
No opposing papers were filed by or on behalf of the
respondent.
Counsel for the respondent, submitted that he had not filed
opposing papers and that he had no meaningful submissions to make. He further
advised the court that the respondent was no longer trading. Counsel for the
respondent submitted, further, that he had advised the respondent that even
though it was not trading, potentially, the application for dismissal of appeal
would be granted. The respondent had then placed at the disposal of his law
firm an amount of US$5,000=. Thereafter, he then, by letter dated 2 May 2014, advised
the Registrar that they were in a position to tender US$5,000=. He accepted
that the respondent was obliged to pay security for costs but that there was a
dispute which the court had to determine as to what constituted a sufficient
amount for security for costs.
Rule 46 provides as follows:
“46. Security
(1) If the judgment appealed from is carried into execution
by direction of the court appealed from, security for the costs of appeal shall
be as determined by that court and shall not be required under this rule.
(2) Where the execution of a judgment is suspended pending
an appeal and the respondent has not waived his right to security, the
appellant shall, before lodging with a Registrar copies of the record, enter
into good and sufficient security for the respondent's cost of appeal:
Provided that where the parties are unable to agree on the
amounts or nature of the security to be provided, the matter shall be
determined by the Registrar.
(3) A judge may, on
application, at the cost of the appellant and for good cause shown, exempt the
appellant wholly or in part from the giving of security under subrule (2).
[Subrule amended by RGN 421 of 1975]
(4) No security need be furnished by the Government of
Southern Rhodesia or by a municipal or city council or by a town management
board.
(5) Where an appellant
is required by this rule to furnish security for the respondent's costs of
appeal, such security shall be furnished within one month of the date of
filing of the notice of his appeal in terms of Rule 29.”…,.
Rule 36 provides:
“36.
Dismissal of appeal without hearing
(1) If an appellant
who is required to furnish security for the respondent's costs of appeal fails
to furnish such security within the period prescribed in subrule (5) of Rule
46, the respondent may forthwith give notice to the appellant that, on the date
specified in the notice, being not less than five days after service of the
notice, he will apply to a judge for dismissal of the appeal by reason of such
failure, and for such other order specified in the notice as he may require.
[Subrule amended by S.I.14 of 1992]
(2) The date specified in the notice given in terms of
subrule (1) shall be a date which a Registrar has previously signified to the
respondent as being a suitable date.
(3) The judge, on an
application for dismissal by the respondent brought in terms of subrule (1),
may dismiss the appeal and, additionally or alternatively, may make such other
order as he thinks fit, including any order as to costs, whether or not one or other
or both the parties to the appeal appear at the hearing.
(4) Where, at the time of the hearing of an appeal, there
is no appearance for the appellant, and no written arguments have been filed by
him, the court may dismiss the appeal and make such order as to costs as it may
think fit:
Provided that an appeal
dismissed in terms of this subrule may thereafter, on application by the
appellant, be reinstated.
(5) A Registrar shall
notify the Registrar of the court whose judgment is appealed against of the
dismissal of any appeal under this Rule.”
It is common cause between the parties that security for
costs is required in this matter in terms of the Rules. Counsel for the
respondent made that concession in his submissions.
The Rules provide for the furnishing of such security
within one month of the date of the filing of a notice of appeal. In this
regard, Rule 46(5) is couched in peremptory terms. The respondent filed a
notice of appeal on 18 February 2014. It was only by letter dated 2 May 2014
that an indication was made to the Registrar of an intention to meet the
requirement for the furnishing of security for costs - albeit not in the amount
specified by the applicant. A period in excess of two months had elapsed by the
time this indication was made to the Registrar. Rule 46(5) was therefore
flouted. Rule 36(1) provides that where there has been such failure to comply
with Rule 46(5), the respondent may give notice to the appellant that he will
apply to a judge for dismissal of the appeal by reason of such failure.
On the facts of this matter, the respondent was given more
than the stipulated five (5) days' notice of the applicant's intention to file
this application. Despite being made aware of the provisions of the law and the
consequences of non-compliance, the respondent did not take appropriate action.
Neither did it explain why it did not do so. On these facts, I found no
justification for not exercising the discretion granted in Rule 36(3) to a
judge, to dismiss the appeal as prayed for by the applicant. This, in effect,
can properly be viewed as an unopposed application.
The submission by counsel for the respondent that there was
a dispute as to what constitutes a sufficient amount for security for costs was
not substantiated. He made no submission as to how and/or when the dispute
allegedly arose. It appears to be a half-hearted submission made without any
seriousness, particularly when viewed against counsel for the respondent's
other submissions captured earlier herein.
Nevertheless, he has, in these circumstances, now requested written
reasons for my decision.
No real or substantial opposition was made to the prayer
for costs on an attorney and client scale.
In the result, on 14 November 2014, I granted an
order in the terms prayed for by the applicant in the draft attached to the
application.
