IN
CHAMBERS
MUSAKWA
JA: This
is a chamber application for condonation of 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 which was
handed down on 30 July 2021. In that judgment, the applicant's
application for a declaratur was dismissed. The applicant seeks an
order in the following terms:
1.
The application for condonation for non-compliance with Rule 38(1) of
the Supreme Court Rules, 2018, be and is hereby granted.
2.
The application for extension of time within which to file and serve
a notice of appeal in terms of the rules be and is hereby granted.
3.
The applicant shall file and serve the notice of appeal against the
judgment of the High Court in HC6650/19 within five days from the
date of this order.
4.
There shall be no order as to costs.
FACTUAL
BACKGROUND
The
first respondent is a property development company. The second
respondent is a duly registered housing co-operative of which the
applicant was a member. The third respondent is the subsequent
purchaser of the property in dispute, number 294 Carrick Creagh
Borrowdale which property had initially been leased to the applicant
on a rent to buy basis.
The
fourth respondent is the Minister responsible for State land and
properties.
It
is common cause that on 13 October 2011, the applicant was allocated
stand number 294 Carrick Creagh Borrowdale by the fourth respondent
on a lease-to-buy basis. The allocation was made pursuant to a
partnership agreement entered between the first and second
respondents wherein the first respondent was appointed to develop the
land on which the property is situated. Members of the second
respondent were required to pay a development fee to the first
respondent before being issued with a lease agreement by the fourth
respondent. The applicant avers that she was exempted from paying
development fees through a letter dated 3 November 2008 as
she was part of the executive committee of the second respondent.
On 6 August 2019, the applicant visited the fourth
respondent's offices to check on the status of the stand. She then
found in the relevant file a letter dated 18 December 2018 demanding
payment of $404,999.04 being the outstanding development fees. The
fees were to be paid by 31 January 2019 failing which the offer of
the stand would be withdrawn. The letter also stated that the
applicant had breached the lease agreement by not paying the
development fees.
The
applicant averred that although the letter was dated 18 December
2018, there was no valid cancellation as the same was not served on
her at her domicilium
citandi
as
reflected in the lease agreement. She only became aware of the
letter well after the due date.
During
the course of the inquiries as to the withdrawal of the offer of the
stand, the applicant further discovered that the property had been
allocated to the third respondent.
Consequently,
the applicant filed an application for a declaratur in the court a
quo
under
case number HC6650/19. She averred that she held a valid lease
agreement and never declined to pay the development fees. She
contended that there was no basis for the repossession as she was not
notified that she owed the development fees. She sought to be
declared the true and legal owner of stand number 294 Carrick Creagh,
Borrowdale. She also sought that the sale agreement concluded between
the first and third respondents be declared null and void and for the
same to be set aside.
The
first to third respondents opposed the application whilst the fourth
respondent did not file any opposition.
The
first respondent contended that the applicant had no real rights
accruing to her. It further contended that the applicant's
exemption from paying development fees was not absolute.
The
second respondent contended that the applicant could not seek a
declaratur on ownership on the strength of a lease. This is because
ownership vested in the fourth respondent. It also contended that the
exemption from paying development fees was a privilege that was
subsequently withdrawn.
The
third respondent argued that she was properly allocated the stand and
paid the requisite development costs. She further argued that the
requirements for a declaratur had not been met.
The
court a
quo
found that the applicant did not satisfy the requirements for the
granting of a declaratory order.
The
court found that it was not in dispute that the letter of
cancellation of the lease agreement was not served on the applicant.
As such, it ruled that no valid cancellation was effected.
The
court a
quo
further found that if the letter was a notice of cancellation, then
in terms of the parties agreement, the fourth respondent was supposed
to confirm cancellation which he did not do.
All
the respondents failed to put a date on which the lease was
cancelled.
However,
notwithstanding that it had found that there had been no proper
cancellation of the lease agreement, the court a
quo
refused
to grant the declaratory order sought by the applicant. It ruled that
the applicant had not fulfilled the obligations set out in the lease
agreement. Resultantly, the application was dismissed.
Aggrieved
by the decision of the court a
quo,
the applicant lodged an appeal to this Court under SC 308/21. The
appeal was filed within the 15 days stipulated in Rule 38(1)(a) of
the Supreme Court Rules, 2018. However, the notice of appeal was
defective in that the relief sought was inexact.
On
the day of the hearing of the appeal that is 11 January 2022, the
issue of the defective notice of appeal was brought to the attention
of the applicant's counsel. The matter was duly struck off the roll
by consent of all the parties.
The
applicant intends to file a fresh appeal but she is out of time hence
the present application.
APPLICANT'S
SUBMISSIONS
Mr
Machingauta
for the applicant submitted that the delay was not inordinate and the
reason for the delay is attributed to the legal practitioner who
drafted a defective notice of appeal. On the issue of prospects of
success, Mr Machingauta
argued that the intended appeal enjoyed good prospects. Counsel
submitted that the court a
quo
correctly made a finding that the termination of the lease agreement
was invalid due to the failure by the fourth respondent to serve the
required notices at the applicant's domicilium
citandi.
It was further argued that by refusing to declare that the contract
between the applicant and the fourth respondent as valid, the court a
quo
made a decision that was contrary to the evidence placed before it.
Finally, Mr Machingauta
submitted that as the application before the court a
quo
related to a declaratory order and not for specific performance the
application ought to be granted.
THE
FIRST RESPONDENT'S SUBMISSIONS
Mr
Nyangani
for the first respondent submitted that although the delay in noting
of the application for condonation is not inordinate, the explanation
for the delay is unacceptable since the applicant was legally
represented.
Concerning
prospects of success on appeal, Mr Nyangani
argued that the applicant has no prospects of success because the
reason for the applicant's failure to pay developmental fees could
not suffice as the exemption regarding payment was clearly outlined
as a privilege subject to revocation.
Further,
it was Nyangani's
contention that the applicant failed to establish the reasons why she
did not adhere to the obligations which were set out in the lease
agreement.
Moreover,
he argued that without the applicant first seeking the cancellation
of an agreement between the third and fourth respondent, the relief
sought by the applicant was incompetent in an application for a
declaratur.
Finally
Mr Nyangani
prayed that the application be dismissed with costs on a legal
practitioner-client scale.
THE
SECOND RESPONDENT'S SUBMISSIONS
Mr
Mtukwa
for the second respondent raised a point in
limine
to the effect that the applicant had approached the court with dirty
hands as she had neglected to pay costs which the court a
quo
had ordered her to pay.
On
the merits, Mr Mtukwa
argued that the appeal has no prospects of success as the applicant
was equally in breach of her own obligations in respect of the same
lease agreement which she intended to have enforced. Counsel
submitted that the applicant sought to be declared the owner of the
stand despite the fact that she had no agreement of sale but was
merely a beneficiary of a lease agreement. Ownership of the stand
continued to vest in the state as represented by the fourth
respondent.
THE
THIRD RESPONDENT'S SUBMISSIONS
Mr
Magogo
for the third respondent submitted that the applicant did not
disclose that she was required to pay development fees and to erect
buildings worth USD$200, 000.00 in her founding affidavit.
Counsel
submitted that the applicant has no prospects of success due to the
fact that she failed to perform all her obligations under the
contract she sought to enforce.
Mr Magogo
further submitted that the applicant's lease-to purchase agreement
with the fourth respondent has two distinct cancellation for breach
clauses; clause 15 requires the lessor forthwith to declare the
agreement terminated and clause 22 has a forfeiture clause in terms
of which there is no contemplation of any need to declare and
communicate the termination of agreement.
Additionally,
it was submitted that the termination of applicant's lease and
ejectment was effected by means of the subsequent letting for
eventual purchase to the third respondent.
The
third respondent had made improvements to the immovable property.
Counsel
further submitted that the double sale argument raised by the
applicant is an error of law since there was never any sale and
purchase of land in the scheme of the lease-to-buy arrangement.
The
third respondent argued that the applicant's failure to fulfil the
conditions of the lease-to-buy agreement militate against the
application.
THE
LAW
Applications
for condonation of late filing of appeal and extension of time within
which to appeal are regulated by Rule 43 of the Supreme Court Rules,
2018 which states that;
“(1)
An application for leave to appeal or for condonation of
non-compliance with the rules and for extension of time in which to
appeal shall be signed by the applicant or his or her legal
practitioner and shall be accompanied by a copy of the judgment
against which it is sought to appeal.
(2)
An application for leave to appeal shall set out the date on which
the High Court refused leave to appeal and shall have attached to it
—
(a)
a notice of appeal containing the matters required in terms of
paragraphs (a)
to (f)
of subrule (1) of rule 37;
(b)
a copy of the proceedings before the High Court when leave to appeal
was refused, together with the judgment, if any;
(c)
an affidavit setting out any facts which are relied upon as affecting
the granting of leave to appeal.
(2)
An application for condonation of non-compliance with the rules and
for extension of time in which to appeal shall have attached to it a
notice of appeal containing the matters required in terms of subrule
(1) of rule 37 and an affidavit setting out the reasons why the
appeal was not entered in time or leave to appeal was not applied for
in time. Counsel may set out any relevant facts in a statement. Where
such application is in relation to a matter in which leave to appeal
is necessary the application shall, in addition, comply with the
requirements of subrule (2).”
It
is a common principle of law that 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.”
APPLICATION
OF THE LAW TO THE FACTS
The
extent of the delay and reasonableness of explanation
In
casu,
the judgment in which the applicant intends to appeal against was
handed down on 30 July 2021. The applicant filed a defective notice
of appeal on time and the matter was struck off the roll on 11
January 2022. She then filed the present application on 18 January
2022, some 7 days after the matter was struck off the roll.
The
overall delay of six months is inordinate.
The
explanation given by the applicant for failing to note a valid appeal
is that the applicant's legal practitioners believed that they had
filed a valid notice of appeal. It was only on the day for the
hearing of the appeal that her legal practitioner realized the defect
in the notice.
Advent
Tavenhave,
the applicant's legal practitioner, deposed to a supporting
affidavit in which he explained the issue of the defective notice of
appeal.
According
to him in crafting the substituting order he omitted to state the
substantive relief. He had not seen anything wrong until this was
brought to his attention by counsel for the third respondent on the
date of hearing.
A
client may suffer for the negligence of his legal practitioner (S
v McNab
1986 (2) ZLR 280 (SC)).
This
is because a legal practitioner is expected to execute his or her
duties diligently and to follow the rules of court. In this respect
see Nguruve
v Secretary of The Commission of Inquiry
1988
(1) ZLR 244 (SC).
Mr
Tavenhave
was certainly expected to get things right.
It
follows that the application fails both on the length of delay and
the reasonableness of the explanation for the delay.
Despite
the applicant having failed to meet the first two requirements for
such an application, I will proceed to determine whether there are
prospects of success in the intended appeal as it is a requirement to
consider all the elements cumulatively.
PROSPECTS
OF SUCCESS
Prospects
of success refer to the question of whether the applicants have 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
her draft notice of appeal, the applicant has raised four grounds of
appeal and the main issue is whether or not the court a
quo
erred in dismissing the application for a declaratur.
In
the court a
quo,
the applicant sought for an order declaring her to be the true owner
of the stand in question.
Clause
2 of the lease agreement entered between the applicant and the fourth
respondent shows that it was valid for four years. The lease
agreement was entered into on 11 October 2011. It means that the
lease expired sometime in 2015.
The
applicant filed the application for a declaratur on 9 August 2019,
some 4 years after the lease had lapsed.
The
lease agreement which the applicant sought to be declared valid and
binding had lapsed by the time she approached the High Court for a
declaratur.
I
am satisfied that the relief or order she sought in the court a quo
was incompetent as the lease agreement was terminated by effluxion of
time and was never renewed. She could not have sought to be declared
the owner of a property she had not purchased.
DISPOSITION
The
court a
quo
was
correct not to grant a declaratur in favour of the applicant as the
applicant had not purchased the property and had not fulfilled the
conditions relating to developing the property.
In
addition, the lease on the property had lapsed and had not been
renewed.
Consequently,
there are no prospects on appeal.
As
the applicant has failed to satisfy the requirements for the grant of
this application, the application cannot succeed. As is the norm,
costs will follow the event.
Accordingly,
it is ordered that the application be and is hereby dismissed with
costs.
Tavenhave
& Machingauta,
applicant's
legal practitioners
Nyangani
Law Chambers,
1st
respondent legal practitioners
Mashizha
& Associates,
2nd
respondent's legal practitioners
Chikwangwani
Tapi Attorneys,
3rd
respondent's legal practitioners
