IN
CHAMBERS
MUSAKWA
JA: This
is an opposed chamber application for condonation for non-compliance
with the Supreme Court Rules, 2018 and for extension of time in which
to appeal made in terms of Rule 43.
The
intended appeal is against a judgment of the High Court handed down
on 17 February 2021 upholding the respondent's application for a
compelling order. The applicant seeks an order in the following
terms:
1.
The application for condonation for non-compliance with rules and
extension of time within which to appeal be and is hereby granted.
2.
The Notice of Appeal filed of record be and is hereby deemed to have
been filed as of the date of this order.
FACTUAL
BACKGROUND
On
6 and 7 March 2013 the applicant and the respondent entered into an
agreement whereby the respondent was contracted to construct housing
units for the applicant. It was a term of the contract that in the
event of a dispute arising between the parties, an adjudicator would
be appointed to resolve the dispute and the adjudicator's decision
would be final.
Two
disputes arose between the parties.
The
first dispute was referred for adjudication and a determination was
made. The applicant did not give notice of dissatisfaction with the
adjudicator's decision, thus rendering the decision final and
binding.
Another
dispute between the parties arose and this related to a termination
certificate that was issued by the applicant and the matter was also
referred for adjudication.
The
adjudicator ruled that the termination of the contract was improper
as it arose out of the applicant's own wrongdoing. The adjudicator
further ruled that the termination
certificate was not issued promptly and in accordance with the terms
of the contract.
It
is in respect of adjudicator's second decision that the respondent
sought a compelling order against the applicant in the court a
quo.
Before
the court a
quo
the
respondent contended that the decision by the adjudicator was binding
on the parties unless and until it was revised by the tribunal and
was enforceable as a matter of contractual obligation between the
parties and not as an arbitral award. It thus argued that the
respondent was entitled to the relief sought.
The
applicant opposed the application arguing that there was no legal
basis for the relief sought as the respondent was attempting to
enforce the adjudicator's determination as if it was an arbitral
award.
It
further argued that the matter was already before the courts thus the
application was an abuse of court process.
In
addition, the applicant contended that the respondent's claim had
prescribed.
It
was the court a
quo's
finding that the parties relationship, rights, duties and obligations
were governed by the contract which the parties had entered into. The
court a
quo
ruled that since the adjudicator's decision was final and binding,
until it was set aside by the tribunal the argument by the applicant
that the matter was improperly before the court fell away. It ruled
that a notice of dissatisfaction or referral to arbitration did not
within the context of the contractual terms serve to suspend or stay
the adjudicator's decision.
On
the issue of prescription, it was the court's finding that
prescription only begins to run when a cause of action is complete
and in this case it was not complete since the entire decision of the
adjudicator had been referred to arbitration by the applicant.
Consequently,
the court a
quo
granted the application in favor of the respondent.
Irked
by the decision of the court a
quo,
the applicant appealed to this Court. The appeal was struck off the
roll on the basis that the notice of appeal was defective as the
grounds of appeal did not comply with the Supreme Court Rules.
Accordingly,
the applicant brings the present application to seek condonation and
extension of time to file a fresh appeal.
At
the commencement of the proceedings, counsel for the respondent had
sought to argue some points in limine
first. I directed that submissions be made both on the preliminary
points as well as on the merits.
APPLICANT'S
SUBMISSIONS
In
respect of the preliminary issues raised, Mr Tivadar
for the applicant argued that the date of the judgment a
quo
was indicated clearly in the notice of appeal. As regards the
contents of the founding affidavit he submitted that there were no
material falsehoods as contended by the respondent. He further
contended that no evidence was advanced to prove the alleged
falsehoods.
Regarding
the issue of prospects of success, Mr Tivadar
denied that the applicant did not address the prospects of success.
He submitted that the prospects of success are canvassed in the heads
of argument filed in the main appeal and referred to in the
application.
RESPONDENT'S
SUBMISSIONS
Mr
Mpofu
for the respondent submitted that the draft notice of appeal was
defective in that the date of judgment is not specific. Counsel
further submitted that the founding affidavit does not identify the
parties yet the rules state that parties should be identified. He
further submitted that there are material falsehoods made regarding
the preparation of the founding affidavit.
Mr
Mpofu
also submitted that in an application for condonation, prospects of
success ought to be addressed. He further argued that the applicant
has failed to address the issue of prospects in the founding
affidavit hence the application should fail on that basis.
Additionally, he submitted that an affidavit constitutes both
pleadings and evidence. As such, if pleadings do not address the
prospects of success, then there is no application before the court.
Reference was made to the case of Matsika
v Chingwena
SC
144/21.
THE
LAW
Applications
for condonation and late filing of appeal and extension of time
within which to appeal are regulated by Rule 61 of the Supreme Court
Rules, 2018 which states 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 an 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.”
It
is a common principle of law which has been practiced over time that
a party who fails to comply with the rules of this Court must apply
for condonation and give adequate reasons for failure to comply with
the rules. This was expressed in Zimslate
Quartize (Pvt) Ltd & Ors v Central African Building Society
SC
34/17 where the court held that;
“An
applicant, who has infringed the rules of the court before which he
appears, must apply for condonation and in that application explain
the reasons for the infraction. He must take the court into his
confidence and give an honest account of his default
in order to enable the court to arrive at a decision as to whether to
grant the indulgence sought. An applicant who takes the attitude that
indulgences, including that of condonation, are there for the asking
does himself a disservice as he takes the risk of having his
application dismissed.” (my emphasis)
The
factors to be considered in an application of this nature were
outlined in Mzite
v Damafalls Investment (Pvt) Ltd & Anor
SC
21/18
where
the court stated that;
“The
requirements for the application of this nature to succeed are well
known as outlined in the case of Kombayi
v Berkout
1988 (1) ZLR 53 (S).
These
are:
1.
The extent of the delay;
2.
The reasonableness of the explanation for the delay; and
3.
The prospects of success on appeal.”
ANALYSIS
Preliminary
Issues
Concerning
the preliminary issues raised, a reading of the draft notice of
appeal shows that the applicant stated several dates. However, the
relevant date when judgment was handed down is present in the draft
notice of appeal.
The
argument regarding failure to identify the parties does not carry the
day. This is because the parties are identified (albeit not in the
sequence desired by the respondent).
Regarding
material falsehoods, the respondent claimed that Gugulethu Ndlovu did
not prepare the founding affidavit. On the other hand, Gugulethu
Ndlovu maintained that she is the one who prepared the founding
affidavit before it was reviewed by Mr Tivadar.
It
is my view that these preliminary issues raised by the respondent are
not dispositive of the application. They do not go to the root of an
application of this nature.
I
will accordingly dispose this matter on the merits as opposed to the
preliminary issues raised.
THE
EXTENT OF THE DELAY
The
judgment which the applicant intends to appeal against was handed
down on 17 February 2021. The applicant should have filed a
valid notice of appeal by 11 March 2021, but it filed a defective
notice of appeal which resulted in the matter being struck off the
roll on 10 September 2021.
The
applicant lodged this application for condonation and extension of
time on 23 September 2021, some
9 days after the original appeal was struck off the roll. However,
the applicant claims to have filed the present application 7 days
after the original appeal was struck off the roll.
The
overall delay from the date judgment was handed down is six months
which delay in my view is inordinate.
THE
REASONABLENESS OF THE EXPLANATION FOR THE DELAY
The
applicant did not explain why it failed to note an appeal timeously.
It is only stated that the applicant's legal practitioner was
consulted on the first day after the hearing of the appeal to get
instructions. Counsel for the applicant avers that they then
instructed an advocate to prepare a notice of appeal.
In
my view, this cannot be regarded as an explanation for the
delay at all.
In
the case of Kodzwa
v Secretary for Health & Anor
1999
(1) ZLR 313 (S)
the
court held that:
“Condonation
of non-observance of the rules is by no means a mere formality. It is
for the applicant to satisfy
the court that there was sufficient cause to excuse him from
non-compliance… the court's power to grant relief should not be
exercised arbitrarily and upon the mere asking, but with proper
judicial discretion and upon sufficient and satisfactory grounds
shown by the applicant.”
(my emphasis)
Based
on the above authority, the applicant ought to have proffered a
reasonable explanation for the delay. The mere asking for condonation
does not suffice. There
is no explanation given as to why the applicant did not file its
appeal on time.
As
a result, the application for the delay is not satisfactory.
Although
the delay is not inordinate, prospects of success have to be
assessed.
WHETHER
OR NOT THE APPEAL HAS GOOD PROSPECTS OF SUCCESS
It
is clear from the record that the applicant did not canvass the
prospects of success. Failure to canvass prospects of success in a
founding affidavit is fatal to an application of this nature as
correctly submitted by Mr Mpofu.
It
is trite law that
an application stands or falls on the averments made in the founding
affidavit. According
to Herbstein
& van Winsen
the Civil Practice of the Superior Courts in South Africa 3rd
ed p.80 the learned authors state as follows:
“The
general rule, however, which has been laid down repeatedly is that an
applicant must stand or fall by his founding affidavit and the facts
alleged therein, and that although sometimes it is permissible to
supplement the allegations contained in that affidavit, still the
main foundation of the application is the allegation of facts stated
therein, because these are the facts which the respondent is called
upon either to affirm or deny. If the applicant merely sets out a
skeleton case in his supporting affidavits any fortifying paragraphs
in his replying affidavits will be struck out.”
Prospects
of success refer to the question of whether the applicant has an
arguable case on appeal or whether the case cannot be categorised as
hopeless.
In
the case of Essop
v S [2016]
ZASCA 114,
the court in defining prospects of success held that;
“What
the test for reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In
order to succeed, therefore, the appellant must convince this court
on proper grounds that he has prospects of success on appeal and that
those prospects are not remote, but have a realistic chance of
succeeding.
More is required to be established than that there is a mere
possibility of success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless. There must, in other
words, be a sound, rational basis for the conclusion that there are
prospects of success on appeal.” (my emphasis)
In
casu,
the contention made by the respondent in relation to failure to
address prospects of success in the founding affidavit has merit.
The
applicant ought to have explained in detail why it believes its
intended appeal has prospects of success rather than merely stating
so. The
applicant has an obligation to satisfy the Court that once an
application for condonation is granted, it has prospects of
succeeding on the merits of the matter. These prospects need to be
explained in depth in order to convince the Court to grant the
application. The applicant failed to advance a case upon which its
prospects of success can be assessed. Instead, it only referred to
the grounds of appeal.
DISPOSITION
In
the final analysis, I hold that the delay in noting an appeal was
inordinate and the explanation for the delay is inadequate. In
addition, the applicant failed to properly canvass the prospects of
success in its founding affidavit. The application cannot succeed.
Costs will follow the event.
It
is accordingly ordered that the application for condonation of late
noting of appeal and extension of time within which to file an appeal
be and is hereby dismissed with costs.
Gill,
Godlonton & Gerans, applicant's legal practitioners
Mawere
Sibanda Commercial Lawyers, respondent's legal practitioners
