No. SC 78/02
Appeal No. 348/00
EQUIPMENT CORPORATION v
COURT OF ZIMBABWE
JUNE 12 & SEPTEMBER 19, 2002
C Andersen SC,
for the applicant
for the respondent
JA: An application in Chambers, in terms of s 31 of the Rules
of the Supreme Court of Zimbabwe
application is for an extension of time in which to appeal against a
judgment of the High Court delivered on 27 October
applicant (BEC) is a company incorporated in terms of the laws
of Zimbabwe. It was sued in the High Court by
(BIG), an association of doctors and radiologists carrying on
business in partnership, for the refund of an
amount of $122 474
with interest thereon at the prescribed rate from 1 December
1998 to the date of final payment and costs
had happened is this. On 5 February 1997 BIG ordered from BEC
an X-ray tube for its Shimadzu X-ray machine. The purchase
the amount of $122 474 was paid in two instalments of $64 600
on 5 February and $57 874 on delivery
of the tube on
16 April 1997. It was one of the terms of the contract that
BEC would instal the X-ray tube. When BECs
to fit the tube into the X-ray machine it broke. A second tube was
ordered but it also broke when the same
technician attempted to fit
it into the machine.
30 July 1998 BIG wrote to BEC suggesting that it should refund
the purchase price with interest. It would appear that
responded by a letter dated 11 September 1998 (not filed of
record) in which it agreed to refund the purchase price to BIG
without interest. BIG responded by demanding that BEC should refund
the purchase price with interest on 1 December 1998.
18 January 1999 BEC forwarded to BIG two cheques with a total
amount of $122 474 under cover of a letter in which it
we wish to state that we stand by
our letter of 11 September 1998 in which we agreed to pay you
the full amount owing but would
not be paying any interest. We
enclose our cheques for $122 474 in full and final settlement.
was also claiming from BEC damages for loss of income and interest
thereon. It did not accept the tender of the purchase price
in full and final settlement of its claim for interest thereon and
damages. The cheques were not deposited for payment.
22 January 1999 BIG issued summons out of the High Court
claiming against BEC the refund of the purchase price with interest
thereon at the prescribed rate from 1 December 1998 to the date
of payment. It also claimed damages in the amount of $1 900 502.96
for loss of income with interest thereon at the prescribed rate from
16 April 1997 and costs of suit. Following entry of appearance
to defend, BIG made an application for summary judgment on 21 June
1999 in respect of the claim for the refund of the purchase
with interest and costs.
7 July 1999 BEC again confirmed that BIG was entitled to the
refund of the purchase price which it paid on 9 July 1999.
withdrew the condition that the payment was in full and final
settlement. BIG agreed to withdraw the application for summary
judgment and have the case go to trial on the issues of interest on
the purchase price, costs and damages. BEC said it agreed to
the purchase price because it knew that the X-ray tube had got
damaged and intended to protect its good name. It, however,
responsibility for the damage to the tube, alleging that the damage
was a result of a faulty X-ray machine which had been
by unnamed third parties BIG had asked to fit a Siemens X-ray tube.
the matter finally came up for trial, BIG withdrew the claim for
damages but persisted with the claim for payment of mora
interest on the purchase price and costs. It is not clear from the
record whether oral evidence was led, but the court a quo
held that BEC was liable for the payment of interest on the purchase
price at the prescribed rate from 1 December 1998 to the
final payment. BEC was also ordered to pay costs of suit.
16 November 2000 BEC purported to note an appeal against the
whole judgment of the court a quo.
The notice of appeal did not have all the matters required by s 29
of the Rules of the Supreme Court (the Rules).
It was fatally
defective because it omitted to include the address of service of the
Registrar of the High Court and did not state
the date on which the
judgment appealed against was given.
Talbert v Yeoman
Products (Private) Limited
S-111-99 MUCHECHETERE JA held that a notice of appeal
which suffers from these defects is null and void. The learned
JUDGE OF APPEAL quoted with approval at p 3 of the cyclostyled
judgment from a judgment of KORSAH JA in Jensen
v Acavalos 1993 ZLR
216 (S) where it was stated at p 220:
reason is that a notice of appeal which does not comply with the
Rules (in that case the notice did not have a prayer for
fatally defective and invalid. That is to say, it is a nullity.
It is not only bad, but incurably bad, and unless
the Court is
prepared to grant an application for condonation of the defect and
allow a proper notice of appeal to be filed the appeal
must be struck
off the roll with costs: De Jager
v Diner & Anor
1957 (3) SA 567 (A) at 574 C-D.
Hattingh v Pienaar
1977 (2) SA 182 (O) at 183, KLOPPER JP held that a fatally
defective compliance with the rules regarding the filing of
cannot be condoned or amended. What should actually be applied for
is an extension of time within which to comply with
noticing that the notice of appeal filed on 16 November 2000 was
fatally defective, BIG made an application on 28 February
for an order striking out the notice of appeal. NECs legal
practitioners sought to solve the problem by remedying the notice
appeal and thereafter applying for condonation. It was only a day
before the hearing of this application that they followed the
procedure stated in Talberts
as a result of advice from Mr Andersen.
at 220 F-G it is stated:
broad principles an appellate court would have regard to in
determining whether to condone the late noting of an appeal are:
extent of the delay; the reasonableness of the explanation proffered
for the delay; and the prospects of success of the appeal.
ex Uxor v Steel NO
1966 RLR 60 (A) at 62 and 64, 1966 (2) SA 277 (RA); HB
Farming Estate (Pty) Ltd & Anor v Legal and General Assurance
Society Ltd 1981 (3)
SA 129 (T) at 134 A-B; Kombayi
v Berkhout 1988 (1)
ZLR 53 (S) at 57G-58A. And as BEADLE CJ observed in R
v Humanikwa 1968 (2)
RLR 42 (A) at 44B:
longer the delay in applying for condonation in the late noting of an
appeal the more certain the court must be that there is
a real chance
of the appeal succeeding.
delay in making this application can only be categorised as
considerable. BEC has put the blame for the delay on lack of
on the part of its legal practitioner who drew up the
defective notice of appeal. There has been no explanation from the
practitioner of his failure to comply with the Rules, nor has
there been any explanation as to why the defect in the notice of
was not discovered much earlier by BECs lawyers. The lack
of diligence on the part of the legal practitioner, however, relates
to the technical aspect of the case. The legal practitioner was,
strictly speaking, exclusively responsible for this aspect of
case. BEC as a litigant would ordinarily not be expected to have
control over the drafting of the notice of appeal.
the delay was considerable and there was no explanation from the
legal practitioner as to why he acted in the manner he
did, I do not
hold BEC culpable. The same conclusion was reached by
MUCHECHETERE JA in Talberts
where he said at p 5:
is clear from the above that the fault in this matter was that of the
applicants counsel and not of the applicant himself.
circumstances the courts usually take the view that a client ought
not to be punished for the sins of his legal
unless he connived with the legal representative in the commission of
the sins or sat back and did nothing when he
became aware of the
impending default. The applicant cannot be accused of that in this
case and therefore the default can be excused.
was observed in Talberts
the crucial factor is the prospects of success on appeal.
argued that as there was no agreement by BEC to pay anything other
than the capital amount, evidence had to be led by BIG in the
to prove breach of contract in order to lay a foundation for its
claim for the payment of interest on the purchase price. He said
because no evidence appears to have been adduced in the court a quo
contractual liability was not established. So there was no legal
basis upon which BIGs claim for interest could have been awarded
by the learned judge. I disagree.
was not necessary for BIG to prove facts which did not constitute its
cause of action. BIG claimed mora
interest, the liability for the payment of which depended upon proof
on the part of BEC. Its claim for the payment of mora
interest on the refunded purchase price was not dependent upon proof
of the alleged breach of contract by BEC. The general rule
interest is not payable unless there is an agreement to pay it or
there is default or mora
on the part of the part of the defendant: Baliol
Investment Co (Pty) Ltd v Jacobs
1946 TPD 269 at 272. There was, of course, no agreement to pay
interest on the purchase price. There was, however, an agreement
recorded in the letter of 11 September 1998 to pay the purchase
price. In my view, by undertaking to refund the purchase price,
whatever reason, BEC assumed for itself the duty to do so. When BEC
failed to pay the money, BIG wrote a letter demanding that
pay on 1 December 1998.
the letter dated 18 January 1999 BEC clearly admits that it was
under an obligation to pay the money. It could not have
the payment of the money as it did under cover of that letter if the
money was not due and payable. The money had been
made due and
payable by the letter of demand, and failure by BEC to refund the
money on 1 December 1998 constituted a default
on its part.
is clear from the papers that BIG claimed interest on the purchase
price at the prescribed rate from 1 December 1998 to
the date of
final payment. The basis of BECs liability for the payment of
the interest claimed by BIG was default of refund
of the money on
1 December 1998. The liability of BEC to pay the interest was
based on the fact that it became in mora
on the day it was obliged to pay the purchase price but failed to do
was a case of a rescission of a contract accepted by BEC when it
agreed to repay the purchase price. In the circumstances,
contractual liability, in the sense that BIG had to prove that BEC
breached the contract in that it did not properly fit the X-ray
into the machine, was not necessary for the purposes of establishing
BECs liability for the payment of mora
interest on the purchase price admitted to have been due and payable
to it. See Applebee v
Berkovitch 1951 (3) SA
235 at 244D; Linton v
Corser 1952 (3) SA
685; Herbert Davies &
Co v Educational Business Suppliers
1997 (2) ZLR 223 (S) at 227 D-E.
court a quo
awarded BIG, as the successful party, costs of suit. There is
nothing in the papers to suggest that in the exercise of its
the court a quo
erred. It certainly applied the general rule that costs follow the
result. In my view, BIG was entitled to its costs because
been compelled by BECs refusal to pay interest on the purchase
price to seek the relief it eventually obtained from the
court a quo.
In prosecuting its claim, it incurred costs and BEC had to
complaint was also that the court a quo
did not award BEC costs on the claim for damages which BIG withdrew.
It is important to remember that an award of costs is a matter
within the discretion of the court hearing the case. An appellate
court will not interfere with the exercise of the discretion
that is done unreasonably: Van
der Merwe v Peebles
1976 (2) RLR 115.
large part of the time in this case was spent on the claim for
payment of interest on the purchase price. It was not shown by
in this application that it applied for judgment on costs following
the withdrawal of the claim for damages. The question of
respect of that claim would have been an issue before the court a
quo and it was for BEC
to ask the court to resolve that issue in its favour when the claim
was withdrawn, particularly if BIG did not
offer to pay the costs.
In A v B and Anor
1976 (1) RLR 397 GOLDIN J (as he then was) said at
litigation has been commenced or instituted, the question of costs is
an issue before the court and both litigants are entitled
that issue determined by a judgment. This right is not dependent
upon a judgment on the merits of the action. The question
can be distinct from that of a judgment on the merits of the case.
Thus, a notice of withdrawal does not automatically
litigation, and if a defendant or respondent does not ask the court
for an opportunity of establishing the right to judgment
merits, the court may nevertheless grant a judgment for costs only.
there was no evidence that BEC asked for judgment on costs following
the withdrawal of the claim for damages, there is no basis
I can arrive at the conclusion that it has prospects of success on
appeal on this point.
application is dismissed with costs.
Mutizwa & Partners,
applicant's legal practitioners
Welsh & Guest,
respondent's legal practitioners