IN
CHAMBERS
MWAYERA
JA:
This
is a chamber application for condonation for the late noting of an
appeal and extension of time within which to note an appeal made in
terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court
Rules, 2018 (“the Rules”). The application is opposed. The
order sought by the applicant in this application is as follows:
“RELIEF
SOUGHT
WHEREUPON
after
reading documents filed of record and hearing counsel;
IT
IS ORDERED THAT:
1.
The applicant's non-compliance with Rule 38(1)(a), Rule 37(1)(e),
Rule 37(2), Rule 55(5) of the Supreme Court Rules be and is hereby
condoned.
2.
The application for extension of time within which to note an appeal
be and is hereby granted.
3.
Within 5 days of this order, the applicant shall file and serve its
notice of appeal.
4.
There shall be no order as to costs.”
On
5 December 2023 in an extempore judgment I struck the matter off the
roll with costs. The applicant has requested for the written reasons
for judgment. These are they;
FACTUAL
BACKGROUND
The
background to this application can be summarised as follows.
In
December 2011, the applicant lent and advanced an amount of One
Million United States Dollars (USD$1,000,000.00), (hereinafter
referred to as the loan) to the first respondent to fund its cotton
seed purchase for the 2012 buying season. The second to the sixth
respondents executed personal guarantees in respect of the
transaction that bound them as guarantors of the loan. They jointly
and severally bound themselves in varying amounts in respect of the
loan. In addition, the respondents also bound themselves as sureties
and co-principal debtors for a punctual re-payment of the loan. The
seventh respondent tendered stand number 7489 of Salisbury Township
held under Title Deed number 8677/97 as security for the loan. The
first respondent, duly represented by the second and sixth
respondents, undertook to pay this amount in full on or before
December 2012.
Despite
various letters demanding payment by the applicant, the respondents
failed to pay the applicant back the full amount as had been agreed.
In November 2013, the first respondent signed an acknowledgment of
debt in respect of the loan in the sum of one million united state
dollars plus interest. On 30 July 2014, the first respondent was
placed under provisional judicial management.
On
8 June 2016, the applicant instituted proceedings against all the
respondents in the High Court under case number HC 5762/16 wherein
he sought, inter
alia,
the payment of the USD$1 million, which amount had been advanced to
the first respondent.
PROCEEDINGS
BEFORE THE COURT A
QUO
On
10 May 2022, at the commencement of the trial, the third to the
fifth respondents raised three points in
limine.
Firstly
that the matter had prescribed; secondly that there was a violation
of the provisions of the Exchange Control Regulations and lastly
that leave of the court was required before suing the first
respondent which was under provisional judicial management.
In
arguing the third preliminary point, counsel for the applicant
submitted that leave was only required in respect of already
existing proceedings at the time the provisional order is granted
and that no leave was required for new suits. In support of this
argument, counsel cited the case of Zambezi
Gas Zimbabwe (Pvt) Ltd & Anor v N.R Barber (Pvt) Ltd & Anor,
SC-3-20.
Per
contra,
counsel for the first respondent argued that leave to sue a company
under judicial management was necessary and failure to do so was
fatal. He further submitted that the rationale for judicial
management is an endeavour to resuscitate a company and avoid
liquidation hence the need for leave.
The
court a
quo
dealt
with the issue regarding leave to sue, it upheld that first
respondent, being a company under provisional judicial management,
could not be sued without leave of the court.
Aggrieved
by this decision, the applicant noted an appeal in the Supreme Court
under case number SC 146/23 wherein he sought the setting aside of
the decision of the court a
quo
upholding the preliminary point. The appeal was noted on the grounds
that the court a
quo
erred in finding that the applicant was required to seek leave to
sue the first respondent notwithstanding that the applicant
instituted proceedings against the respondents after the provisional
order placing the first respondent in judicial management was handed
down. Further, the applicant averred that the court a
quo
erred
in overriding the position that leave to sue companies placed under
provisional judicial management only applies to proceedings already
in existence at the time the provisional judicial management order
is granted. Lastly, the applicant averred that the court erred in
failing to find that the respondents were estopped from raising the
point relating to leave to sue in light of the fact that the issue
had already been dealt with by the High Court.
10.
It is important to note that the appeal was timeously lodged on 15
March 2023. The applicant offered to pay security for the respondents
costs but however, while such tender was made, the security for costs
was not paid within one month from the date of filing the notice of
appeal. The appeal was then deemed to have been abandoned and
dismissed by operation of the law.
11.
On 18 October 2023, the applicant filed an application for
reinstatement of the appeal that had been deemed abandoned and
dismissed under case number SC 579/23. However, the appeal that the
applicant sought to reinstate was mistakenly set down for hearing on
31 October 2023. In light of these events, the applicant wrote a
letter to the Registrar of the Supreme Court seeking for the
application for reinstatement to be heard prior to the set down date.
12.
The applicant was advised by the respondent's legal practitioners,
that the correct application to be filed was an application for
condonation and extension of time within which to note an appeal and
not reinstatement since the appeal was regarded a nullity.
13.
The Registrar sent the applicant a notice that the application for
reinstatement was set down for hearing on 1 November 2023.
Consequently, on 31 October 2023, at the hearing of the appeal, the
applicant sought for the removal from the roll of the appeal under SC
146/23 for the reason that it had been deemed abandoned and dismissed
by operation of the law. By consent, the appeal was removed from the
roll. On 1 November 2023, the applicant withdrew the application for
reinstatement with a view to filing an application for condonation
and extension of time within which to note an appeal and ensuring
that the appeal would be heard on the merits. It is against this
background that the applicant approached this Court with the present
application seeking condonation for the failure to comply with Rule
38(1)(a), Rule 37(1)(e), Rule 37(2) and Rule 55(5) of the Rules.
PROCEEDINGS
BEFORE THIS COURT
14.
At the hearing of the application, Ms
Mahere,
counsel for the applicant submitted that the application for
condonation and extension of time within which to note an appeal had
been necessitated by the apparent fact that there had been
non-compliance with the rules of this Court. She submitted that the
failure to pay security for costs was not deliberate but actuated by
a misinterpretation and oversight on the import of Rule 55(1) and
Rule 55(2) of the Supreme Court Rules. She further submitted that the
applicant, upon realising concerns raised by the respondents relating
to the validity or otherwise of the appeal for non-compliance with
the rules, took steps to rectify the non-compliance. She contended
that the breach of the rules was not deliberate and not caused by the
applicant but borne out of a genuine oversight by his legal
practitioners.
15.
Further, she submitted that the respondents would not suffer any
prejudice if condonation and extension of time is granted. As regards
prospects of success on appeal counsel submitted that the applicant
enjoyed prospects of success because leave to sue a company under
judicial management only applies to actions or proceedings already in
existence at the time that the provisional order is granted.
16.
She argued that no leave is required to institute proceedings against
a company under provisional judicial management after the provisional
order has been granted. She prayed that in view of the explanation
for non-compliance and the delay which she described as “not
inordinate” coupled with the fact that the applicant enjoyed
prospects of success on appeal, the court ought to grant the
indulgence. Counsel thus sought that condonation and extension of
time within which to note an appeal be granted.
17.
Per
contra,
Mr
Uriri,
for the third, fourth and fifth respondents opposed the application.
He submitted that the application was fatally defective for the
reason that the earlier, albeit irregular appeal, remained hanging in
the court's records as it was not struck off the roll at the
instance of the applicant. He further submitted that the applicant
despite being conscientised of the irregularities, persisted on a
trajectory of filing defective processes. He argued that even the
present application was improperly before the court as a Judge
sitting alone in chambers could not strike off an appeal that has
been filed and in
casu,
the appeal under SC 146//23 remained on record.
18.
He further submitted that the applicant did not proffer an
explanation for the failure to pay security for costs and the reason
for the filing of irregular process. He also submitted that the
applicant instead of explaining the non-compliance with the rules,
merely alludes to the respondents having highlighted irregularities
which they were quick to attend to. He contended that the applicant
did not tender an explanation for the delay and that there was no
satisfactory explanation offered for the non-compliance and filing of
a defective process. He reiterated the point that the present
application was improperly before the court as the appeal under
SC146/23 was still before the court.
19.
Regarding the merits of the appeal, Mr
Uriri
submitted
that the application did not enjoy any prospects of success. He
referred to the case of Allied
Bank Limited v Dengu & Others
SC52/2016 which is authority for the requirement to seek leave to sue
a company placed under judicial management. Counsel submitted that
the application, being improperly before the court, ought to be
struck off the roll.
ISSUES
FOR DETERMINATION
20.
The issues that fall for determination in this case are as follows:
1.
Whether or not the application is properly before the court.
2.
Whether or not the requirements for granting condonation for late
noting of an appeal and extension of time have been satisfied.
THE
LAW
21.
It is trite that when an application is improperly before the Court,
there will be no application for the court to relate to. The matter
which is improperly enrolled faces the fate of being struck off the
roll. In the case of Ahmed
v Docking Station Safaris Private t/a CC Sales,
SC
70-18, at p4, this Court made the following pertinent remarks:
“In
view of the above, it is clear that the applicant has approached this
court with a wrong application. The circumstances to make an
application for condonation for non-compliance with the rules and
extension of time within which to file and serve a notice of appeal.
This, the applicant failed to do. The
net effect of bringing a wrong application before the court is that
there will be virtually nothing placed before it and, to that end,
the application cannot stand.”
(my
emphasis)
22.
The law applicable to applications for condonation and extension of
time within which to comply with the rules and file the relevant
application or appeal is settled. The requirements for this
application were aptly captured by GUBBAY CJ (as he then was) in the
case of Forestry
Commission v Moyo
1997 (1) ZLR (S),
and
they are as follows:
(a)
That the delay involved was not inordinate, having regard to the
circumstances of the case;
(b)
That there is reasonable explanation for the delay;
(c)
That the prospects for success should the application be granted are
good;
(d)
The possible prejudice to the other party should the application be
granted.
In
addition to the above, in the case of
Hove
v Berea Mining Syndicate
SC-50-23,
at
p8, it was aptly stated that:
“It
is trite that for an application for condonation for non-compliance
with the rules and for extension of time within which to note an
appeal to succeed, the applicant should satisfy the court that he or
she has a reasonable explanation for the delay and non-compliance
with the rules and also establish that there are prospects of success
of the appeal.”
24.
It is important to note that these factors are not individually
decisive on whether the application for condonation for late noting
of appeal and extension of time within which to appeal is granted.
They are considered conjunctively. In Kodzwa
v Secretary
for
Health & Anor
1999
(1) ZLR 313 (S), SANDURA JA remarked as follows:
“Whilst
the presence of reasonable prospects of success on appeal is an
important consideration which is relevant to the granting of
condonation, it is not necessarily decisive. Thus, in the case of a
flagrant breach of the rules, particularly where there is no
acceptable explanation for it, the indulgence of condonation may be
refused, whatever the merits of the appeal may be.”
APPLICATION
OF THE LAW TO THE FACTS
After
considering both the written and oral submissions by counsel, it is
apparent that the appeal in case number SC 146/23 which was deemed
abandoned and dismissed by operation of law has a life line for
reinstatement as provided for in Rule 70 of the Rules. It is an
established principle that when a matter is deemed abandoned and
dismissed because of operation of the law, it is removed from the
roll.
In
casu,
it is worthwhile to refer to the orders of this Court in respect of
the matter. The order in the record issued on 31 October 2023, is
pertinent. The order reads as follows:
“IT
IS ORDERED THAT:
1.
By consent, the matter be and is hereby removed from the roll for the
reason that it has been deemed abandoned and dismissed in terms of
Rule 55(6) of the Supreme Court Rules 2018.
2.
The appellant shall bear the respondent's costs for today's
appearance.”
27. In
respect of the chamber application for condonation and reinstatement
of the appeal, the application was removed from the roll for the
reason that it had been withdrawn. On 1
November 2023, the court ordered as follows:
“IT
IS ORDERED BY CONSENT THAT:
The
matter is removed from the roll, with no order as to costs for the
reason that it has been withdrawn.”
28. The
import of these orders is that the appeal in case SC 146/23
therefore remains deemed abandoned and dismissed. Mr
Uriri's
submission
that the application in the present case is fatally defective, is
confirmed by the sequence of earlier highlighted proceedings before
this Court. In my view, the appeal under SC 146/23 stands in the way
of seeking condonation and extension of time within which to note an
appeal by operation of the law. The proper way to revive an appeal
deemed abandoned and dismissed is by seeking reinstatement.
29. In
the present case, the applicant's non-compliance with Rule 55
resulted in the appeal being deemed abandoned and dismissed. Rule
55 is instructive. It provides as follows:
“55.
Security
1.
If the judgment appealed from is carried into execution by direction
of the court appealed from, security for the costs of appeal shall be
as determined by that court and shall not be required under this
rule.
2.
Where the execution of a judgment is suspended pending an appeal and
the respondent has not waived his or her right to security, the
appellant shall, before lodging copies of the record with a
registrar, enter into good and sufficient security for the
respondent's costs of appeal:
Provided
that where the parties are unable to agree on the amount or nature of
the security to be furnished —
(i)
the matter shall be determined by the registrar upon application by
the appellant; and
(ii)
the registrar shall specify the period within which the security
shall be furnished.
3.
A judge may, on application at the cost of the appellant and for good
cause shown, exempt the appellant wholly or in part from the giving
of security under subrule (2).
4.
No security for costs in terms of subrule (2) need be furnished by
the Government of Zimbabwe or by a municipal or city council or by a
town management board.
5.
Subject to the proviso to subrule (2), where an appellant is required
by this rule to furnish security for the respondent's costs of
appeal, such security shall be furnished within
one month of the date of filing of the notice of his or her appeal
in terms of Rule 37 or, where applicable, within the period specified
by the registrar in terms of the proviso to subrule (2).
6.
If an appellant who is required to furnish security for the
respondent's costs of appeal fails to furnish such security with
(in) the period specified in subrule (5), the appeal shall be
regarded
as abandoned and shall be deemed to have been dismissed.”
(My emphasis)
30. The
rules provide for reinstatement of such an appeal that has been
deemed abandoned and dismissed. Rule 70 of the rules of this Court
is apposite. It provides that:
“(1)
Where an appeal is —
(a)
deemed to have lapsed; or
(b)
regarded as abandoned; or
(c)
deemed to have been dismissed in terms of any provision of these
rules;
the
registrar shall notify the parties accordingly.
(2)
The appellant may, within 15 days of receiving any notification by
the registrar in terms of subrule (1), apply for the reinstatement of
the appeal on good cause shown.”
(My
emphasis)
31. In
casu,
the appeal was removed from the roll because it was deemed abandoned
and dismissed since the applicant had not paid security for costs
within the prescribed time. The redress to this infraction is as
provided for in the rules. The applicant in this case while
apportioning blame to the respondents for consenting to the orders
granted, cannot be exculpated from lack of probity and diligence. It
is clear that the applicant has approached this Court with a wrong
application for condonation and extension of time within which to
note an appeal, when in actual fact, the deemed abandoned and
dismissed appeal can be resuscitated by seeking condonation for
non-compliance with Rule 55(5) and extension of time within which to
pay security of costs. Further, the applicant ought to file for
condonation for late filing of the application for reinstatement and
extension of time within which to file an application for
reinstatement and reinstatement of the appeal.
32. In
the case of
Gazi v Mbababala Properties (Pvt) Ltd
SC 24/23, MAVANGIRA JA, sitting in chambers stated that:
“It
is my considered view that in such a situation, a litigant, on
becoming aware by itself, of the fate of its appeal by reason of
operation of the law per Rule 55 as read with Rule 70, may properly
apply for condonation of non-compliance with the rules and for the
extension of time within which to file an application for
reinstatement.”
These
remarks resonate well with the circumstances of the present case. See
also Ahmed
v
Docking Station (supra),
which emphasized the fact that bringing a wrong application before
the court virtually places nothing for the court to relate to.
33. The
circumstances presented require the applicant to make a composite
application for condonation for non-compliance with the rules and
extension of time within which to pay security of costs of court,
condonation for the late filing of the application for reinstatement
and the extension of time within which to file the application for
reinstatement and reinstatement of the appeal which is already in
the system.
34. In
view of the fact that the matter is improperly before the court, it
ought to be struck off the roll. The court will not relate to
whether or not the requirements for granting of condonation and
extension time have been met, because there is no proper application
to relate to.
See
the case of Gospel
of God Church International 1932 v Mungweru & Ors,
at page 6 where this Court aptly made the following remarks:
“Similarly
with findings such as in
casu,
that the application is ill founded, the court has no basis for
proceeding any further. A finding on a dispositive issue should mark
the end of the court's enquiry and of its curiosity too.”
There
is therefore, no basis for the court, to relate to the submissions on
the issues regarding extent of delay, reasonableness of the
explanation proffered and prospects of success since there is no
proper application before the court.
DISPOSITION
35. The
fact that the applicant's legal practitioner acted upon the
suggestions of the respondents counsel on the defects in the notice
of appeal and the promise not to oppose the application do not
validate the propriety of the present application. When an appeal
has been removed from the roll, for the reason that it has been
deemed abandoned and dismissed by operation of the law, recourse is
provided for in the rules through an application for condonation of
non-compliance with the rules and reinstatement. Seeking condonation
and extension of time to note an appeal in this case is incompetent
and the applicant was thus misguided in this regard. The application
is improperly before the court, hence the matter ought to be struck
off the roll.
36. Regarding
the issue of costs, there is no reason why the costs should not
follow the result.
In
the result, it is accordingly ordered as follows:
“The
matter be and is hereby struck off the roll with costs.”
Atherstone
& Cook,
applicant's
legal practitioners
Chasi
Maguwudze Legal Practice,
3rd
to 5th
respondents legal practitioners
