GOWORA JA:
On 24 June 2010, the High Court
dismissed an application by the respondent for the recognition by that court of
a judgment obtained in Malawi against the appellant. The respondent appealed to this court. On 22
February 2012, this Honourable Court upheld the appeal and remitted the matter
to the High Court to hear evidence and make a determination on the exchange
rate applicable to the Malawi Kwacha as against the United States Dollar, and
further whether any interest was due and the rate thereof.
After
hearing evidence from the respondent on those specific issues the High Court
issued out an order in which it recognized the judgment from Malawi and ordered
the appellant to pay the sum of USD 840 958.11 together with interest thereon
at the prescribed rate with effect from the date of its judgment to date of
payment. Both parties are aggrieved by
the judgment and have appealed to this Court.
Mr
Goba, on behalf of the appellant, moved
an oral application for a postponement of the appeal. He intimated that he had
been instructed that the appellant wished to make a direct application to the
Constitutional Court for appropriate relief.
He was unable to provide details of the intended application, when it
was to be filed or the substance of the relief being sought.
Mr
Tsivama, in turn, vehemently opposed
the application. He argued that the
respondent had not been given any notice of the application for a postponement
nor had it been warned of the possibility of a Constitutional application being
mooted by the appellant.
An application for the postponement of
a matter which has been set down for hearing is in the nature of an indulgence
sought, the grant of which is in the discretion of the judge or court before which
it is made. The applicant must therefore
show that there is good cause for the postponement or that there is a
likelihood of prejudice if the court refuses the indulgence being sought. In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), SCHULTZ JA
remarked:
“A party
opposing an application to postpone has a procedural right that the appeal
should proceed on the appointed day. It is also in the public interest that there
should be an end to litigation. Accordingly, in order for an application for a
postponement to succeed he must show a 'good and strong reason' for the grant
of such relief: Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (T) at
320C-321B. The more detailed principles governing the grant and refusal of
postponements have recently been summarised by the Constitutional Court in
National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110
(CC) at 1112C-F as follows:
'The
postponement of a matter set down for hearing on a particular date cannot be
claimed as of right. An applicant for a postponement seeks an indulgence from
the court. Such postponement will not be granted unless this court is satisfied
that it is in the interests of justice to do so. In this respect the applicant
must show that there is good cause for the postponement. In order to satisfy
the court that good cause does exist, it will be necessary to furnish a full
and satisfactory explanation of the circumstances that gave rise to the
application. Whether a postponement will be granted is therefore in the
discretion of the court and cannot be secured by mere agreement between the
parties. In exercising that discretion, this court will take into account a
number of factors, including (but not limited to) whether the application has
been timeously made, whether the explanation given by the applicant for
postponement is full and satisfactory, whether there is prejudice to any of the
parties and whether the application is opposed.'
The learned judge continued at 495
“The
application for postponement falls short on all counts. There is not even a
serious attempt to provide a 'full and satisfactory explanation' for the
owner's unpreparedness or the lateness of the application. Nor is such
explanation as there is on oath, notwithstanding counsel's advice to the new
attorney.
The
interests of the other litigants and the convenience of the court are also
important. The record and heads have been read by five judges, variously months
or weeks before the appeal date. The fact that this case was placed on the roll
meant that another case had to wait for the following term and if a
postponement is granted this consequence will extend into succeeding terms”.
It
seems to me that the application moved before us for the postponement was, to
say the least, half hearted. There was no attempt made to establish 'good
cause' which would have persuaded the court to grant the indulgence being sought.
There
was no explanation in casu why the
postponement was being sought other than a reference to a desire to mount a
constitutional application. The submission from counsel suggested to us that
the constitutional issues, if any, were yet to be formulated. Counsel did not
address the issue of the prejudice, if any, the appellant was likely to suffer
if the application for postponement was not granted. In any event, it was not
suggested that the hearing of the appeal would be a bar to the appellant's
right to mount a direct constitutional application.
Such
indulgence as this court would afford the applicant would involve the court
exercising discretion in favour of the applicant. Any such discretion must be
exercised judicially and a court should be slow to refuse an application for
postponement where the reasons for the applicant's inability to proceed have
been fully explained. The absence of an explanation by the appellant to justify
the application for a postponement was in itself indicative to the court of the
fact that there was no 'good cause' for the grant of the indulgence sought. See
Persadh v General Motors South Africa
(PTY) Ltd 2006 (1) SA 455 at 459.
It
was for the above reasons that the court refused the application and ordered
that the appeal be heard on the merits.
I
turn now to consider the main appeal. The
substance of the appellant's criticism was that the court a quo erred in proceeding to recognise the judgment granted in
Malawi and have the same registered in Zimbabwe as a competent judgment. It was contended further that the court
misdirected itself by applying an incorrect exchange rate in coming to the
conclusion that the amount due was USD 840 958.11 at the time when the payment
of MK 4 814 512 was made by the appellant.
When the matter was heard for the
second time as ordered by this Court, the appellant chose not to lead evidence
on the two issues on which the matter had been specifically remitted by this
honourable court to the High Court for its determination. At the close of the respondent's case (plaintiff
in the lower court), appellant's counsel informed the trial judge that the
appellant did not intend to call any witnesses for two reasons. The first was that the appellant did not
believe that it could adduce any evidence materially different to what had been
placed before the court by the respondent. Secondly, it was suggested by counsel that
there were legal issues falling for determination on the evidence already
before the court which the appellant would address in its closing submissions and
that the calling of evidence would not add to the resolution of those legal
issues.
In
essence the evidence adduced on behalf of the respondent as to the applicable
rate of exchange which prevailed as at 2004 in Malawi on the United States
Dollar was not controverted by the appellant.
Those were issues of fact which were in the domain of the trial court. This Court on appeal could not sit to revisit
those factual disputes between the parties unless the court a quo was guilty of
a misdirection on the facts. Without
placing an alternative position before the High Court the appellant could not
allege a misdirection.
As
regards the issue of interest, the appellant argued that the court a quo erred in awarding interest on the
judgment amount. It was further
contended that the Courts' Act Malawi Chapter 302, in terms of which provision
is made for interest to be levied on Malawi judgments does not apply to amounts
denominated in foreign currency. The
respondent in its cross-appeal also challenged the manner in which the order
addressed the question of interest. It
was the respondent's contention that the court a quo erred in ordering that interest accrues from the date of
judgment instead of the date when the respondent instituted proceedings for
recognition of the judgment as a judgment of this country.
The court a quo addressed the issue of interest in the following manner:
“In
addition to the foregoing reservations, my disinclination against applying
statutory interest in casu is
fortified by the reasons that I expounded in my earlier judgment in this
matter. For the sake of completeness, it is necessary to repeat them.
Firstly,
in the absence of any clear indication to the contrary, it must be assumed that
s 65 of the Courts Act is confined to claims sounding in the official currency
of Malawi. As I have already noted,
there is nothing in that provision to suggest that it extends equally to claims
sounding in all foreign currencies. As a
matter of rational financial principle, the permissible rate of interest
applicable to civil claims in foreign currency will vary according to the
currency concerned.
Secondly,
and more importantly, what is sought herein is the recognition of a foreign
judgment. If our courts are to accord
such recognition, they must do so on the judgment ex-facie, as duly certified
by an authorized official of the foreign court in question. To accept the plaintiff's claim involves
having to materially modify the expressly stated terms of the foreign judgment
on the basis of a point of foreign law that has not duly been proven in terms
of s 25 of our Civil Evidence Act [Chapter
8:01]. Neither the expert evidence
adduced on behalf of the plaintiff nor the reported judgments from Malawi
produced by that expert conclusively support the construction that the
plaintiff seeks to impose upon section 65 of the Malawi Courts Act.
In
the premises, I take the view that the plaintiff has failed to prove, in
accordance with section 25 of the Civil Evidence Act, that it is entitled to
any interest on the United States Dollar award as from 12 September 2007. This
claim cannot be allowed upon the proper recognition of the judgment of the
Supreme Court of Malawi. However what
can be claimed and allowed is interest at the rate prescribed in Zimbabwe,
either as from the date of summons in this matter or as from the date of
judgment herein. Although the plaintiff
has not specifically made this claim, it seems to me just and equitable that it
be granted in the circumstances of this case as from the date of this
judgment.”
Clearly,
contrary to suggestion by the appellant, the court a quo did not order interest based on s 65 of the Malawi
Courts Act. The award was made in accordance
with the law of Zimbabwe on the understanding that the judgment upon its
recognition was now a judgment of the courts of Zimbabwe.
The
reasoning of the learned Judge is clear and needs no further comment from this
court. As regards the contention in the
cross-appeal that the court a quo
erred in not ordering interest to run from 8 November 2012, the judgment makes
it clear that the respondent did not pray for interest at the rate prescribed
in terms of our law. What the respondent
prayed for was for interest to run from 11 September 2011, which was the date
of the Malawi Supreme Court judgment. The
reason why that claim failed is easily discernible from the judgment of the
learned trial judge and I need not repeat those reasons. The judgment is clear and does not require
paraphrasing. The learned judge also
discussed the principle that applies to the award of interest at the prescribed
rate. The respondent did not pray for
such interest and the award was then made on the basis that it would be just
and equitable for interest to be awarded.
In awarding interest the learned judge as he did, the judge obviously
exercised his discretion, and this cannot be impugned.
In
my view both the appeal and the cross appeal are devoid of any merit. As neither party succeeded there will be no
order for costs.
In
the result it is ordered as follows:
1.
The appeal be and is hereby dismissed.
2.
The cross-appeal be and is hereby dismissed.
3.
Each of the parties is
ordered to pay his or her own costs.
GWAUNZA JA: I agree
GUVAVA JA: I
agree
Messrs
Venturas & Samukange, appellant's legal practitioner
Sawyer & Mkushi, respondent's legal
practitioners
