DISTRIBUTABLE
(25)
Judgment
No S.C. 32/04
Civil
Application No 198/01
SUSAN
CHIPO VERA v MITSUI AND COMPANY LIMITED
SUPREME
COURT OF ZIMBABWE
HARARE
MAY 5, 2004
C.
Selemani, for the
applicant
J.J.
Callow, for the
respondent
Before: CHIDYAUSIKU CJ, in
Chambers, in terms of the Supreme Court Rules
This is a Chamber application for
the re-instatement of an appeal which was regarded as abandoned and
deemed to have been dismissed
by reason of the failure of the
applicant to file heads of argument within 15 days of being called
upon to file the heads of argument,
see Rule 43(2) as read with Rule
44 of the Supreme Court Rules.
Although
the application does not state in terms of which rule it is being
made I assumed it was made in terms of Rule 36 of the Supreme
Court
Rules. It is well settled that for an application for reinstatement
to succeed good cause for the default must be established.
The
issue for determination before me is whether good cause for the
default has been shown.
The
facts of this case are briefly as follows. The respondent issued
summons for the eviction of the applicant from certain premises
known
as No 7 Ridgeway North, Highlands, Harare, and payment of a certain
amount of money from a co-defendant who is not party to
the present
proceedings. The applicant entered an appearance to defend. The
respondent applied for and obtained summary judgment
against the
applicant. The applicant was dissatisfied with this outcome and
noted an appeal against the judgment.
When
the record was complete the Registrar wrote to the applicants
erstwhile legal practitioners Chibune & Associates to file
the
applicants heads of argument within 15 days of the notification.
The notification was in terms of Rule 44. The applicant
avers, and
this was not disputed, that Mr Chibune contacted her on the last day
the heads of argument were due for filing. The
applicant instructed
her erstwhile legal practitioner to seek an extension of the time
within which to file the heads of argument
as she wished to pursue
her appeal. Mr Chibune refused to do that on the basis that in his
view her case had no prospects of success
and proceeded to renounce
agency leaving the applicant in the lurch, as it were. The
applicant secured the services of another
legal practitioner who then
launched this application. While Mr Chibune had some basis for
being of the view that the applicant
had no prospects of success on
appeal his conduct in advising his client of this on the last day of
filing heads of argument and
renouncing agency, falls far below what
is expected of a legal practitioner. He should have advised the
applicant in sufficient
time for her to make alternative arrangements
in the event of her erstwhile legal practitioner wishing to terminate
his services.
Mr Callow,
who appeared for the respondent, and opposed the application argued
strenuously that the applicant had very little prospects of success
on the merits. He did not have much to say on the eminently
plausible explanation for the failure to file heads of argument by
the applicant. I agree with Mr Callows submission that the
applicant has very little prospects of success on the merits. The
net result is that the applicant has a good explanation for the
default but very poor prospects of success on the merits.
Given
this situation I have decided to grant the application for the
following reasons:
(a) the applicant was badly
treated by her erstwhile legal practitioners and she should not be
made to pay for the sins of her legal
practitioners;
(b) while I agree with Mr Callow
that the applicants prospects of success on the merits are poor it
really is for the appeal court to have a final say on this
issue.
My view on the prospects of success is, of necessity, prima
facie. If the
explanation for the default were not plausible I probably would have
come to a different conclusion. The applicant deserves
her day in
court regardless of the merits of the case. This is particularly so
taking into account that she is appealing against
summary judgment
which, in effect, deprives her the chance to defend herself in the
court a quo;
(c) while I accept that there has
been some delay in the finalisation of this matter blame for such
delay is attributable to the learned
judge in the court a
quo and not the
applicant. The record in this case is complete and all that remains
is for the parties to file their heads of argument
and the matter to
be set down for argument, something that can be done within a
relatively short time.
In the result the application
is granted and I make the following order:
1. The appeal is re-instated.
2. The
applicant is ordered to file her heads of argument within 7 days of
this order and thereafter the matter should proceed to
set down in
accordance with the rules.
Muzenda & Maganga,
applicants legal practitioners
Stumles
& Rowe,
respondent's legal practitioners