CHAMBER
APPLICATION
MAKONI
JA:
[1] This
is an opposed chamber application for condonation for non-compliance
with rules and
reinstatement of an appeal in terms of Rule 70 of the Supreme Court
Rules, 2018 (the Rules).
[2] After
hearing submissions from counsel I dismissed the application, with
costs on a legal
practitioner-client scale, and indicated that reasons will be
furnished in due course. These are they.
BACKGROUND
FACTS
[3] The
facts relevant for the determination of this matter are that the
applicant, after being aggrieved by the decision of the High Court
(the
court a quo),
duly filed a notice of appeal to this Court on 19 October 2022 under
case number SC529/22. In its notice of appeal, the applicant tendered
security for the respondents costs of appeal 'in an amount agreed
between the parties failing such agreement in an amount determined by
the registrar'. The tender was made as a requirement under Rule
55(2) of the Rules. Pursuant to the tender and on 26 October 2022,
the applicant's legal practitioner wrote to the respective legal
practitioners of the respondents seeking an indication as to the
amount of security they required respectively. The respondents were
given seven days within which to respond.
[4] The
respondents legal practitioners responded to the letter. Messrs Gill
Godlonton and Gerrans demanded security in the sum of USD10,000;
Messrs Danziger and Partners and Kantor and Immerman demanded
security in the sum of ZWL5,500,000. On 16 November 2022 the
applicant's legal practitioner wrote to the respondents legal
practitioners, in identical terms, proposing security for costs in
the sum of ZWL3,000,000 in respect of each of the respondents. The
respondents legal practitioners rejected the applicant's proposed
amount in respect of each of them. However, after further discussions
all parties agreed that the applicant was to pay ZWL5,500,000 in
respect of security of costs for each respondent. The security for
costs were eventually paid on 9 November and 1 December 2022 and by
then the payment was out of time as it was due on 19 October 2022.
[5] The
appeal, in SC529/22, was heard in court on 15 May 2022. The
respondents objected that the appeal was deemed to have been
abandoned and dismissed in terms of Rule 55(6) on account of the
applicant's failure to pay security for costs within the prescribed
time frame of one calendar month. The objection was upheld and
consequently, the appeal was struck off the roll resulting in the
filing of the present application.
[6] The
applicant seeks the following relief;
“The
application be and is hereby granted.
1.
Applicant's appeal in SC529/22 is reinstated and the registrar of
this Court is ordered to re-enrol the matter for hearing.
2.
First, second and third respondents shall pay the costs jointly and
severally.”
[7] At
the hearing of the application, the respondents took several
preliminary points in
limine.
Mr Mpofu,
for the first respondent, submitted that the application was
incompetent as the applicant had not only failed but refused to
address the court on the prospects of success of the appeal. He
contended that this being an application for condonation and
reinstatement of an appeal, the applicant ought to have satisfied the
court that it has good prospects of success on appeal in order to
establish that it had shown good cause for the application to be
granted.
[8] The
second point taken is that there is no proper explanation tendered
for failure to comply with the rules. Mr Mpofu
submitted
that instead of the applicant tendering an explanation as required,
it instead blames the court. It states that the application was
“struck off in error”. It asks a judge sitting in chambers to
review a decision made by a three-member panel.
[9] Mr
Mpofu
prayed that the points in
limine
be upheld and the application be dismissed with
costs on a higher scale.
[10] Mr
Zhuwarara,
for the second respondent, associated himself with the submissions
made by Mr Mpofu.
He however added that the applicant further deliberately continues to
flout the rules by failing to attach the judgment under challenge and
the Notice of Appeal to enable the judge, seized with matter, to
assess prospects of success. He also prayed for dismissal of the
application with costs on a punitive scale.
[11] Mr
Makanda,
for the third respondent, also, associated himself with the
submissions made by Mr Mpofu
save to add that the relief sought was incompetent in that the
applicant is seeking condonation but there is no such prayer in the
draft order. He also sought the same prayer as the other respondents.
[12] Mr
Goba,
for the applicant, countered that the points taken in
limine
relate to the merits of the matter and cannot be dealt with in
limine.
Regarding the issue of prospects of success, he maintained the stance
adopted by the applicant, in the founding affidavit, that it is not
necessary to address the question of prospects of success. Relying on
the authority of Mhungu
v Mtindi
1986 (2) ZLR 171 (SC) he submitted that I could have regard to the
record in SC529/22, which is the main appeal, to assess whether there
are prospects of success on appeal. He opined that examining
prospects of success in the present application is tantamount to
being asked to determine the outcome of the appeal. He concluded, on
this point that the applicant would not appeal if it did not have
prospects of success.
[13] Regarding
the question of the draft order he conceded that it could have been
better phrased. He sought that it be amended to make it clearer.
THE
LAW
[14] The
appeal in SC529/22 was struck off the roll for the reason that it had
been deemed abandoned and dismissed. The applicant has approached
this Court with an application for reinstatement in terms of Rule 70
of the Rules. Rule 70 of the Rules provides as follows:
“(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.”
(my emphasis)
[15] Good
and sufficient cause, in the context of an application for
reinstatement, has been defined by this court in a number of
authorities.
[16] Dealing
with an application for reinstatement of an appeal in Tel-One
(Pvt) Ltd v Communication and Allied Services Workers Union of
Zimbabwe
SC01/06,
this Court stated the following;
“Essentially,
in an application of this nature, the applicant must satisfy the
court firstly, that he
has a reasonable explanation for the delay in question and secondly
that his prospects of success on appeal are good.”
[17] In
the case of Bessie Maheya
v Independent Africa Church
SC58-07 at p5,
Malaba
JA (as he then was) stated the following as the requirements for an
application for reinstatement:
“The
question for determination is whether the applicant
has shown a cause for the re-instatement of the appeal.
In considering applications for condonation of non-compliance with
its Rules, the Court has a discretion which it has to exercise
judicially in the sense that it has to consider all the facts and
apply established principles bearing in mind that it has to do
justice. Some
of the relevant factors that may be considered and weighed one
against the other are: the degree of non-compliance; the explanation
therefore; the prospects of success on appeal;
the
importance of the case; the respondent's interests in the finality
of the judgment; the convenience to the Court and the avoidance of
unnecessary delays in the administration of justice;” see also FBC
Bank Ltd v Chiwanza
SC31/17.
[18] In
Conju
Incorporated (Pvt) Ltd v Registrar of the Supreme Court SC28/20
at p6, the court in explaining the import of Rule 70 reiterated that:
“Rule
70(2) allows an appellant whose appeal is deemed to have lapsed or is
regarded as abandoned in terms of sub r(1) of r70 to apply for its
reinstatement within fifteen days of receiving notification from the
registrar. The legal principle governing applications for
reinstatement of appeals is now settled in this jurisdiction. It is
that in an application for the reinstatement of an appeal that was
regarded as abandoned and deemed to have lapsed the applicant must
show good cause for the default. In
doing so, the applicant is required to satisfy the court firstly,
that he or she has a reasonable explanation for the delay in question
and secondly, that his or her prospects of success on appeal are
good.”(my
emphasis)
[19] In
my view and basing on the aforementioned authorities, it is now trite
that an applicant, in an application for reinstatement, ought to
establish, inter
alia,
that it has good prospects of success on appeal as it is one of the
elements that this Court considers in deciding whether or not the
applicant has shown good cause.
[20] As
noted above the applicant also seeks condonation for failure to
comply with the rules. The law regarding condonation for
non-compliance with the rules is a well-trodden path in our
jurisdiction. If authority is required for this settled position, for
the benefit of the applicant, see Forestry
Commission v Moyo
1997
(1) ZLR 254 (S), Kodzwa
v Secretary for Health & Anor
1999 (1) ZLR 313 (S), Machaya
v Munyambi
SC4/05;
Ester
Mzite v Damafalls Investments (Pvt) Ltd
SC21/18.
[21] The
factors to be considered in such an application are as follows:
(a)
That the delay involved was not inordinate, having regard to the
circumstances of the case;
(b)
That there is a reasonable explanation for the delay;
(c)
That the prospects of success should the application be granted are
good;
and
(d)
The possible prejudice to the other party should the application be
granted.
[22] Reasonable
prospects of success on appeal features as one of the requirements
for the grant of an application for condonation. It is an important
consideration which is relevant to the granting of condonation,
although not necessarily decisive.
ANALYSIS
[23] The
applicant, in para 15 of its founding affidavit, avers that;
“Furthermore,
it is respectively submitted that applicant has
shown
good
cause
for reinstatement which
is the only requirement
in the circumstances. For
good reason the question of a shewing of reasonable prospects of
success is not contemplated under rule 70(2) where rule 55(6) is
applicable (sic).
A fortiori
the
position is the same where a matter is struck off the roll by the
court. To
the extent that condonation is required it is submitted that a bona
fide
and reasonable explanation has been given.
It
is all the rules required.
It is submitted that the requirement has been met in this instance.”
(my emphasis)
[24] It
is this paragraph that triggered the respondents to take, as a point
in
limine,
the question of the failure to address prospects of success rather
than deal with it on the merits. I entirely agree with the position
taken by the respondents that the present application is incompetent.
The applicant flatly refuses to address the issue of prospects of
success in its founding affidavit. It boldly asserts that the
question of reasonable prospects of success 'is not contemplated
under Rule 70(2) where Rule 55(6) is applicable.' This is a novel
submission to this Court. The assertion is made in the face of a
plethora of authorities stating otherwise. In oral submissions
before me, Mr Goba
made the astounding contention that if this court was to make a
determination on the issue of prospects of success in this
application, it will be pre-empting the decision of the three-member
panel that will finally deal with the main appeal. To me this
submission demonstrates a clear misapprehension of the concept of
prospects of success. Prospects
of success refer to the question of whether a court of appeal could
reasonably arrive at a conclusion different from that of the court or
tribunal of first instance. In 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.”
[25] After
initially persisting with the submission that it was not necessary to
address prospects of success, Mr Goba
later on capitulated and based on the authority of Mhungu
v Mtindi supra,
contended that for the prospects of success on appeal I should have
regard to the main appeal record. The judgment appealed against and
the Notice of Appeal are contained therein. He expects me to sift
through the main appeal file and extract what I may consider to be
the prospects of success in the appeal. Firstly, there is no such
invitation by the applicant in the founding affidavit for me to have
reference to that file. Secondly, there is no such obligation on a
judge dealing with such an application. In John
Chikura & Anor v Al Shams Global BVI Limited
SC17/17
the following was stated in respect of prolix grounds of appeal;
“It
is not for the court to sift through numerous grounds of appeal in
search of a possible valid ground; or to page through several pages
of 'grounds of appeal' in order to determine the real issues for
determination by the court. The real issues for determination should
be immediately ascertainable on perusal of the grounds of appeal.”
In
my view the same sentiments apply with equal force to the applicant's
submission that I should go through the record of appeal to determine
whether there are prospects of success on appeal. These should,
however, be immediately ascertainable from the applicant's founding
affidavit. Thirdly this
flies in the face of the authorities referred to above.
[26] The
same reasoning applies to the applicant's failure to address
prospects of success in respect of the issue of condonation. It again
makes the baseless averment that shown a bona
fide
and reasonable explanation “It is all the rules required”. It is
actually worrying that the applicant is represented by legal
practitioners, who despite all the countless authorities developed
over the years on this issue, still believe that there is only one
requirement to be satisfied in an application of this nature.
[27] In
addressing the requirement of a reasonable explanation for the delay,
the applicant in para 13 of its founding affidavit states the
following;
“I
aver therefore that the rule had not been infringed at all.
Respondents being fully aware of the above ought not to have joined
hands and disingenuously raise the unnecessary objection that
exercised the Honourable Court's mind ultimately leading to an
order striking off the appeal and necessitating the present
application on the basis that the rules of the court were infringed.”
[28] Further
down in para 16 the applicant averred that:
“In
the circumstances it is prayed that the Honourable Judge be pleased
to grant the application so that the Registrar may re-enrol the
matter on the bases that;
16.1
The matter was in fact struck off in error……...”
[29] One
can understand the position taken by the respondents that the
applicant does not tender a reasonable explanation for its failure to
comply with the rules. Instead, it blames the respondents for taking
the objection and the three-member bench for upholding the objection
and striking the matter off the roll. This is despite the fact that
the consequences of failure to pay security for costs timeously was
decisively dealt with in Watermount
Estates (Private) Limited v Registrar of the Supreme Court & Ors
SC135/21.
In any event the decision of the Supreme Court is correct because it
is final. See Lytton
Investments (Private) Limited v Standard Chartered Bank Zimbabwe
Limited & Anor CCZ11/18.
[30] The
applicant ought to have set out that it has good prospects of
success, in relation to both condonation and the reinstatement of
appeal in its founding affidavit. It is a common principle that an
application stands or falls on the averments made in the founding
affidavit. This Court in Unki
Mines (Pvt) Ltd v Dohne Construction (Pvt) Ltd
SC18/23
re-stated the position thus:
“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 p80 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.'”
[31] Whether
or not an applicant has shown good cause for the granting of an
application of this nature, is in the discretion of the court.
However, for the court to be able to exercise its discretion
judiciously, it places reliance on whether or not the applicant has
tendered a reasonable explanation for the non-compliance and has also
established the prospects of success thereof. The applicant, having
refused to do so, it is my view that the respondents preliminary
objections have merit and ought to be upheld.
[32] The
application, falling short of the requirements of an application,
such as the present one, ought to be dismissed.
Allowing the matter to proceed to the merits would be a waste of
valuable judicial resources which should be directed to worthy
causes.
[33] Regarding
costs, all the respondents applied for costs on a punitive scale.
They are warranted in this matter. The defects in the application
were pointed out to the applicant in the notices of opposition.
Applicant took a deliberate decision not to seriously consider the
points in limine
raised
by the respondents and take remedial action. It persisted, in oral
submissions, to defend the indefensible thereby unnecessarily putting
the respondents out of pocket.
[34] It
is for the above reasons that I upheld the points in
limine
and
dismissed the application with costs on a higher scale.
Musekiwa
& Associates,
applicant's legal practitioners
Gill
Godlonton & Gerrans,
1st
respondent's legal practitioners
Danziger
& Partners,
2nd
respondent's legal practitioners
Kantor
& Immerman, 3rd
respondent's legal practitioners
