This is an application for condonation of the late noting
of an appeal and an extension of time
within which to appeal.
The judgment was delivered by the High Court on 22 April 2015.
This application was filed on 16 June 2015 - more than one
and a half months from the date of the judgment. The explanation given by the
applicant for the failure to lodge its appeal on due date is as follows;
On 22 April, the judgment was delivered in motion court and
the operative part read out. The applicant's legal practitioners, Musimwa and
Associates, noted the judgment and advised the applicant of it. On 14 May 2015,
the applicant's present legal practitioners, Matsikidze and Mucheche, received
a copy of the judgment. They attempted to file a notice of appeal with the
Registrar of the Supreme Court -notwithstanding that the date ex facie the judgment was 22 April 2015. That
notice of appeal was rejected by the Registrar.
This led to the filing of the present application for condonation.
The main thrust of the applicant's affidavit is that there
was no judgment on 22 April 2015; that the correct date is the date when the
written reasons were received (and I take that to mean 'uplifted') by the legal
practitioners; that the Registrar wrongly rejected the notice of appeal; and
that while he remained adamant in his stance that the order read in motion
court was not the judgment, he was nevertheless filing this application on the
assumption that condonation was necessary.
As to the prospects of success, he said:
“16. I believe that I have very good prospects of success
on appeal. The grounds of appeal in my notice
of appeal attached herein as Annexure 4 show the basis of my appeal.”
The application was opposed by the respondent who submitted
that the applicant was well aware of the date of the judgment since it appeared
ex facie the judgment and that the applicant's attitude
was not that of one seeking an indulgence since in his founding
affidavit, as well as at the hearing, he persisted in his allegation that the
correct date was the date on which he received a copy of the judgment.
Further, the applicant had not shown that there were
prospects of success on appeal. A bare and unsubstantiated averment that such
prospects exist is insufficient.
The applicant did not, in his affidavit, explain the delay
after the upliftment of the judgment on 14 May 2015. It is common cause that 14
May 2015 was the last date for filing the notice of appeal in conformity with
the Rules. No explanation is given as to why the application for condonation
was not filed earlier. Even if the applicant's explanation that he genuinely
thought the dies induciae was to
expire on 4 June, 2015 was to be accepted, there still remains an unexplained
gap between 4 June 2015 and 16 June 2015, when the application for condonation
was filed.
In my judgment,
the delay has not been satisfactorily explained.
A legal practitioner is expected to be acquainted with the
Rules of the court in which he files pleadings or appears and displays
negligence when he fails to acquaint himself with the Rules and the
pronouncements of the superior courts on the issues of law which he intends to
argue before the courts on behalf of his client. An erroneous assumption, that
the date ex facie the judgment is not
the judgment date, is not a satisfactory explanation.
As already noted, the applicant made no effort to establish
that there are reasonable prospects of his appeal succeeding. Counsel for the
applicant was only able to say that this is an issue upon which
the Supreme Court must pronounce itself.
But this is not the
test to be applied in an application of this nature.
A court must take into account the cumulative effect of a
number of factors including, but not restricted to:
(i) The length of the delay and the explanation given therefor;
(ii) The bona fides of
the application;
(iii) The prospects of success;
(iv) The prejudice to the other litigating parties if the
application is granted;
(v) The need for finality in the proceedings.
The grant of condonation is not for the asking.
The tone of the applicant's affidavit suggests
that his legal practitioners hold the opposite view despite the many judgments
on this subject which have emanated from this
Court.
