Chamber
Application
1.
CHITAKUNYE AJA: This is a chamber application for condonation of the
late noting of appeal and extension of time within which to appeal
purportedly in terms of Rule 38(1) of the Supreme Court Rules
2018.The
brief facts giving rise to this application may be stated as follows:
2.
On 22 September 2016, the first respondent made a decision allowing
the second respondent to effect developments on Stand 18962 Boundary
Road, Eastlea, Harare, whose location the applicant contends is a
wetland. The decision was made under section 130(3) of the
Environmental Management Act [Chapter 20:27].
3.
Section
130
prescribes a period of 28 days within which an appeal must be filed
in these terms:
“(1)
Subject to this section, any person who is aggrieved by any decision
of any authority in terms of this Act, may within twenty-eight days
after being notified of the decision or action of the authority
concerned, appeal in writing to the Minister, submitting with his
appeal such fee as may be prescribed:
Provided
that such appeal shall not suspend the operation of any order,
decision or action of the authority issued by the Authority.
(2)
For the purpose of determining an appeal noted in terms of subsection
(1), the Minister (if he is not the authority concerned in the
appeal) may require the authority to furnish him with the reasons for
the decision or action that is the subject of the appeal and a copy
of any evidence upon which the reasons are based.
(3)
The Minister, after due and expeditious inquiry, may make such order
on any appeal noted in terms of subsection (1) as he considers just.
(4)
An appeal shall lie to the Administrative Court against any order of
the Minister in terms of subsection (3).
(5)
An appeal in terms of subsection (4) shall be made in the form and
manner and within the period prescribed in the rules of court.
(6)
On appeal in terms of subsection (4), the Administrative Court may
confirm, vary or set aside the decision or action appealed against
and may make such order, whether as to costs or otherwise, as the
court thinks just”.
4.
The Minister having made his decision on 22 September 2016 it was
apparent that when the applicant sought to appeal against the
Minister's decision in March 2019 it was out of time. The applicant
therefore approached the Administrative Court with an application for
condonation of late filing of appeal on 18 March 2019 under Rule 6 of
the Administrative Court Rules SI 122/1980.
5.
On 7 June 2019 the applicant's application for condonation of late
noting of appeal was dismissed by the Administrative Court for lack
of prospects of success. Aggrieved by that decision the applicant
filed a notice of appeal with this Court on 1 July 2019 and served
the same on the other party on 2 July 2019.
6.
The appeal was subsequently set down for hearing on 10 July 2020. On
that date counsel for the respondent advised counsel for the
appellant that the notice of appeal had been filed one day out of
time and he was going to raise that as a preliminary point. Counsel
for the applicant without much reflection conceded and opted to have
the matter removed from the roll.
7.
It is in an endeavour to overcome the alleged late filing of the
notice of appeal that the applicant has now approached this Court
with this application.
8.
In the founding papers the applicant averred that its notice of
appeal was filed one day out of time and proffered reasons for that
delay. Those reasons pertained essentially to administrative issues
at the law firm of the applicant's legal practitioners. The
applicant asserts, in its founding affidavit, that this is an
application for condonation of the applicant's failure to file its
notice of appeal against the judgment of the Administrative Court
within fifteen days in terms of Rule
38(1)(a)
of the Supreme Court Rules,
2018
and for an extension of time within which to appeal. The relief
sought was couched as follows:
“It
is ordered that:
The
failure to file a notice of appeal within fifteen days of the date
the judgment appealed against was given in terms of Rule
38(1)(a)
of the Supreme Court Rules
2018
be and is hereby condoned.
The
extension of time within which to note an appeal be and is hereby
granted. The appeal is to be deemed to have been noted on the date of
this order.”
The
second respondent opposed the application. In its opposition it
raised some preliminary points. The preliminary points were that:
(i)
The application was not in the form provided for in terms of Practice
direction number 1 of 2017;
(ii)
This is a Rule
43
application yet the applicant appears to be lodging one in terms of
Rule
38;
and
(iii)
The relief sought is incompetent as Rule
38
does not provide for condonation.
9.
The applicant in its answering affidavit maintained that the
application was compliant with Practice Direction number 1 of 2017,
Form 3. On the appropriate Rule, the applicant agreed that this was
an application under Rule
43
and that reference to Rule
38
was only for the fifteen-day period for lodging an appeal.
10.
On the date of hearing counsel for the parties maintained their
positions on the points in
limine.
It was apparent that both counsel were of the view that the appeal in
question was under Part VI of the Supreme Court Rules
2018
hence reference to Rule
38
and Rule
43.
It was only after I pointed out that Part VI pertains to civil
appeals from the High Court and the appeal in question was from the
Administrative Court that counsel for the applicant realised the
error and submitted that in that case the application should be under
Part VII.
11.
She submitted that any reference to Rule
38(1)
should be substituted with Rule 60(1) of the rules. Unfortunately,
this belated effort to amend the application from the bar could not
amend the applicant's founding affidavit in which applicant was
clear on the rules under which the application was being brought and
attempted to provide requirements for condonation under those rules.
12.
I am of the view that where an application is brought under Part VI
of the Rules and the founding affidavit is specific in this respect,
as in this case, a legal practitioner cannot purport to amend it. It
is also pertinent to note that the legal practitioner was not the
deponent of the affidavit. She could therefore not in any event seek
to amend an affidavit deposed to by another person and seek to
substitute with provisions under Part VII. It is apparent from a
reading of the relevant provisions under those parts that their
requirements are not exactly the same.
13.
For instance, Rule
61
is to the effect that condonation can only be granted if special
circumstances are shown by way of application in writing. The
applicant must thus address the issue of special circumstances in the
application. A Part VI application on the other hand does not require
the applicant to establish special circumstances (See Rule
43).
The submission by applicant's counsel to simply substitute Rule
38(1)
with Rule
60(1)
is thus untenable.
The
application must stand or fall on its founding papers.
14.
Another fatal irregularity with this application is that even if it
were to be considered under Part VII the relief sought is
incompetent. Rule 60(1) of the Supreme Court Rules
2018
provides that:
“Subject
to the provisions of Rule
61
and the enactment under which the appeal is lodged, a notice of
appeal shall be delivered and filed in accordance with provisions of
Rule
59
within 15 days of the date of the decision appealed against.”
15.
The aforesaid Rule
61
provides that:
“Save
where it is expressly or by necessary implication prohibited by the
enactment concerned, a judge may, if special circumstances are shown
by way of application in writing, condone the late noting of the
appeal and extend the time laid down, whether by Rule
60
or by the enactment concerned, for instituting an appeal”.
16.
It is apparent that the 15 days period and extension thereof is
subject to the provisions of the enactment in question. It is only
where the enactment permits such extension that this Court may
proceed to grant condonation and extension of the period.
17.
In casu,
this was an appeal from the Administrative Court and thus the
question is does the relevant enactment provide for extension of time
within which to appeal?
18.
Section 20 of the Administrative Court Act which provides for any
aggrieved party to appeal to this Court states that:
“(1)
Subject to subsection (2) and except as otherwise provided in any
other enactment, any person who is dissatisfied with any decision of
the Court may lodge an appeal with the Supreme Court within the
period of twenty-one days immediately following the announcement by
the Court of such decision.”
19.
The section or any part of the Act does not in any way give leeway
for the extension of that period of 21 days. Once an aggrieved party
decides to appeal such appeal must be lodged within 21 days. In
Shumba
v Chairman, ZEC and
Another
08-HH-116 2008
(2)
ZLR 370 (H) @ 375-6 court aptly noted in para 23 the following on the
use of the term 'within' before a period:
“The
thirty-day period is peremptory because of the use of the word
'within' before the stipulated period. In Black's Law
Dictionary, 5th
Edition, the word 'within' when used relative to time has been
defined, variously, as meaning 'time before, at or before, at the
end of, not later than.' It is clear from the above definitions
that the period of thirty days cannot be exceeded.”
20.
Further in commenting on the application to condone non-compliance
with the stated 30-day period the court aptly opined in para 26 that:
“The
applicant is asking me to condone an act provided for in an Act of
Parliament. I have no such powers. It is trite that Rules of this
court cannot interfere or derogate from a specific provision of the
Act. Rules are subordinate to an enactment. To ask the court to
condone a period provided for in an enactment, as urged by the
applicant, would be to usurp the functions of the legislature, by
purporting to amend a specific provision, which this or any other
court cannot do.” See Registrar General of Elections v Combined
Harare Residents Association & Anor SC
7/02
at p6 of the cyclostyled judgment”.
21.
It is clear therefore that this Court has no jurisdiction to
entertain an application for condonation for failure to comply with
the period provided in section 20 of the Administrative Court Act.
That section has no provision for condonation and for extension of
the period provided within which to appeal and so, by necessary
implication, Parliament did not intend that such period be extended.
Accordingly,
the relief sought is incompetent.
In
the circumstances it is not necessary to consider the other point as
there is no competent application before me.
22.
On costs I am of the view that as both parties were intent on arguing
on the wrong premise that the application was under of Part VI of the
rules, it is only proper that each party bears their own costs.
The
application is therefore dismissed with each party bearing their own
costs.
Zimbabwe
Lawyers for Human Rights, applicant's legal practitioners
Phillips
Law, 2nd
respondent's legal practitioners
