Judgment
No. SC 10/09
Civil
Application No. 129/08
FARAI
NIGEL CHITSINDE v (1) NYASHA AMANDA CHITSINDE
(2) STANNY MUSA
SUPREME
COURT OF ZIMBABWE
HARARE,
OCTOBER 8, NOVEMBER 14 & 21, 2008
&
JANUARY 20, 2009
G Chikumbirike, for the applicant
E
Matinenga, for the respondents
Before GARWE JA: In Chambers, in terms of r 31 of the
Rules of the Supreme Court.
This is an application for condonation for the late noting of an
appeal and for an extension of time in which to appeal.
Before I deal with this application there is one preliminary matter
that needs to be disposed of. That matter involves the wasted
costs
of 14 November 2008. A decision on that issue was held over for
determination at the conclusion of the application
The background to this issue is largely common cause.
In his founding affidavit to the present application, the
applicant, who represents his two minor children, deposed to the fact
that the judgment of the High Court had been handed down on 28 May
2008. He had only seen a copy of the judgment on 9 June 2008
and had
then unsuccessfully tried to file a notice of appeal on 23 June 2008.
The Registrar of the Supreme Court had refused to
accept the papers
stating that the time for noting the appeal had expired.
At the hearing of the application before me on 14 November 2008,
the applicant sought to prove that, notwithstanding the averment
in
his affidavit, the judgment had in fact been handed down only on 9
June 2008. In that event, so it was submitted, the applicant
would
not have been out of time when he attempted to file his notice of
appeal on 23 June 2008. There would therefore be no need
for the
applicant to apply for condonation for the late filing of his appeal.
To prove that judgment had not been handed down on 28 May 2008, the
applicant through his lawyers, filed a photocopy of the High
Court
motion roll roster for 28 May 2008. The applicant further requested
that the hearing be postponed to enable him, and possibly
the
respondent, to ascertain when exactly judgment had been handed down.
The respondent was not opposed to the postponement provided
the
applicant paid the costs occasioned by such postponement.
The applicant had stated under oath that the judgment had been
handed down on 28 May 2008. He sought to prove that the judgment
was
not in fact handed down on that day but rather on a subsequent day.
This necessitated a postponement of the application to
21 November
2008.
I am satisfied on these facts that the applicant must meet the
costs of the postponement. The respondents were ready to argue
this
matter. It was the applicant who decided that it was necessary to
ascertain from the High Court when exactly judgment had
been handed
down. The applicant should have done this before the hearing of the
application. The decision to do this in the middle
of the hearing of
the application necessitated the postponement of the hearing. The
applicant must therefore meet the wasted costs
of that day, i.e. 14
November 2008, and it is accordingly so ordered.
I now proceed to deal with the application for condonation of the
late noting of the appeal.
On the papers the explanation for the delay does not appear to be
entirely satisfactory. It is clear from the founding affidavit
that
the applicant was aware as at 28 May 2008 that the judgment had been
delivered. On 9 June 2008 he obtained a copy of the
written
judgment. He only attempted to file his notice of appeal on 23 June
2008, i.e. five days out of time. The applicant has
not explained
what happened between 9 June and 23 June 2008. It is true that
between 9 June and 18 June 2008 the applicant could
have timeously
filed his notice of appeal. He has not, however, clearly explained
the delay. All he has said is that the appeal
could not have been
noted without his lawyers having read the judgment. I am, however,
prepared to give the applicant the benefit
of the doubt in this
regard.
On the merits,various issues have been raised on the papers.
On the issue of citation of the applicant, the court a quo was
satisfied that any defect in the citation had been cured in the
founding affidavit which clearly indicated that the minor children
were being represented by their father and natural guardian. I do
not believe that the court a quo can be faulted for reaching
this decision. The court a quo is also criticized for mero
motu raising the issue of illegality. Our law is clear that a
court can do so. Both counsel are agreed that the three agreements
giving
rise to this matter were null and void.
Clearly, therefore, the court a quo cannot be criticized for
not ordering transfer of the property against payment of the correct
duty. The contract was turpis. It was intended to assist the
seller evade payment of the correct duty. Further the court a quo
cannot be criticized for not ordering a refund of the purchase price
because that issue was not before it. On all these issues
the
applicant has no reasonable prospects of success on appeal.
However, the applicant is correct in submitting that the order that
he should vacate the property is improper. Having found that
the
agreement was turpis, the court a quo should have simply
declared it null and void and stopped there. The question as to the
remaining rights of the parties should
have been left to them to
pursue.
It was not, in my view, for the court to assist the one party by
ordering eviction. The issue of eviction should have been left
to
the parties to pursue separately but not as a consequence of the
declaration of nullity of the agreement.
On that basis alone, the applicant has good prospect of success on
appeal. To deny him condonation would be to shut the door
even
though it is apparent that the order of ejectment was improperly
made.
In the result it is ordered as follows
The application for condonation for the late noting of the appeal
and for an extension of time within to appeal be and is hereby
granted.
The applicant is given leave to file his notice of appeal within
five (5) days of todays date.
There will be no order as to costs.
For the avoidance of doubt the wasted costs of 14 November 2008 are
to be paid by the applicant.
Chikumbirike & Associates, applicants legal
practitioners
C Nhemwa & Associates, respondents legal practitioners