DISTRIBUTABLE
(33)
Judgment
No. SC. 38/05
Civil
Application No. 65/05
FREDDY
TAVINGEYI v
(1)
OTILIA MHAKA (2) CITY OF KWEKWE
SUPREME
COURT OF ZIMBABWE
HARARE,
SEPTEMBER 5 & 13, 2005
Before:
CHEDA JA, In Chambers, in terms of Rule 5 of Part II
as read with Rule 31 of the Supreme Court Rules
This
is an application for leave to file a notice of appeal out of time in
terms of Rule 31 of the Supreme Court Rules.
The
applicants name is given as Freddy Tavingeyi, but the
founding affidavit was sworn to by one Pauline Tavingeyi
(Pauline), who states she was authorised by the attached
Special Power of Attorney to depose to the affidavit. She says the
applicant obtained a provisional order in case No. HC 1024/02
restraining the first respondent from ceding the rights,
title and
interest in stand No. 7935/4 Extension of Mbizo, Kwekwe. She
does not state to whom the rights were being ceded
to.
The
application was subsequently dismissed on 19 August 2004.
Pauline states that the applicant was never informed of this
dismissal, and if he had been notified he would have noted an appeal.
She goes on to state that the applicant only became aware
of the
judgment some time in November 2004 after she, the deponent, received
a notice to vacate the premises in late October 2004
from one
Zodwa Furusa, who claimed to have bought the property from one
Elias Tarisai, who is now deceased.
According
to Pauline, the applicant got to know about the judgment in November
2004. He only came and granted her a Special Power
of Attorney in
order to note an appeal on 28 February 2005.
There
is neither an affidavit nor an explanation from the applicant
regarding these averments.
Even
assuming that the applicant was not aware of the judgment from
19 August 2004 to November 2004, there is no explanation
for the
delay from November 2004 to 28 February 2005, when the applicant
gave Pauline a Special Power of Attorney to note an
appeal.
Pauline
states that the applicant has been out of Zimbabwe since September
2003, and only managed to get permission to come to Zimbabwe
towards
the end of February 2005.
This
cannot be true as the photocopies of the passport pages referred to
as proof of the applicants absence from the country
indicate that
there were several departures from and arrivals in Zimbabwe by the
person using the passport whose photocopied pages
were attached to
the papers. The passport bears date-stamps of September, October,
November and December 2004.
The
applicant has also failed to comply with the Rules of this Court.
Rule 15(2) requires that:
The record shall be paged
continuously throughout
.
The
index on the papers refers to pages that are not marked on the papers
and one has to count the pages in order to find the different
pages.
Rule 31(1)
of the Rules of this Court states as follows:
An application that leave to
appeal be granted or for an extension of time in which to appeal
shall be by notice of motion signed
by the applicant or his legal
representative and shall be accompanied by a copy of the judgment
against which it is sought to appeal.
No
such judgment was attached to this application.
In
De Kuzaba-Dabrowski
and Uxor v Steel N.O.
1966 RLR 60 (A) it was stated as follows:
While each case must depend on
its own merits, there are certain broad principles which the court
may take into account. Some of
these are
(i) The extent of the delay in
failing to note the appeal;
(ii) The
reasonableness of the explanation for the delay;
(iii) Whether
the litigant himself is responsible for the delay;
(iv) The
prospects of success of an appeal, should the application be granted;
and
(v) The
possible prejudice to the respondent, should the application be
granted.
In
this case, I find that the applicant has not given any explanation at
all for the delay after he was made aware of the judgment.
He is
clearly responsible for the long delay. The prospects of success
cannot be assessed, as he has not bothered to provide
the judgment
appealed against as required by Rule 31(1). The attached cession
documents are not helpful, as the cession from the
Kwekwe City
Municipality does not state to whom the cession was made.
I
am not satisfied that the applicant has made out a proper case for me
to grant him condonation for the late noting of the appeal.
The
application is dismissed with costs.
Legal
Aid Directorate,
applicant's legal practitioners
