Judgment
No S.C. 11\2002
Civil
Appeal No 117\2001
DIAMOND
INSURANCE COMPANY (PRIVATE) LIMITED v (1)
ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE)
LIMITED
(2) RENAISSANCE ASSET MANAGEMENT (PRIVATE) LIMITED
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, EBRAHIM JA & ZIYAMBI JA
HARARE
FEBRUARY 25 & MAY 30, 2002
T.H.
Chitapi,
for the appellant
P.
Nherere,
for the respondents
ZIYAMBI
JA: In this matter the appellant seeks a postponement to enable
him to file an application for reinstatement of the
appeal.
The
history of the matter is as follows:
Consequent
upon the appellant having filed a notice of appeal against the
judgment of the High Court in this matter, the Registrar
of this
Court, in terms of Rule 43 of the Rules of the Supreme Court, called
upon the appellant to file heads of argument. This
was not done and
on 26 October 2001 the appeal was, by virtue of the operation of Rule
44 of the said Rules, deemed to have been
dismissed.
On
the same date the appellant filed an application termed:
Court
Application : WITHDRAWAL OF APPEAL.
The
purpose of the application as explained in para. 4 of the founding
affidavit was to seek an order to remove from appeal the
matter
between the parties and referring it back to the High Court for the
submission of further evidence.
In
paragraph 5 of the affidavit it was averred that:
The
appellant seeks the Order aforesaid on the basis that the further
evidence that the appellant has gathered is so material as
to have
an important bearing not only on the outcome of the case but also on
the ultimate nature and composition of ANZ. Further,
the ZRP has
instituted criminal investigations against ANZ and the other
purported shareholders.
The
respondents opposed the application on the grounds, inter
alia, that the
application was misconceived in that the appellant having withdrawn
the appeal, this Court was no longer seized with the
matter and could
not therefore grant the order sought.
The
matter was set down for hearing before this Court on 25 February
2002. Meanwhile, the appellant had engaged new legal practitioners
and, prior to the date of the hearing, on the 22nd
February, the appellant, through his present legal practitioners,
filed with the Registrar of this Court a Notice of Application
for
Reinstatement of Appeal. The notice was served on the
respondents at about 4 pm on Friday 23rd
February. In terms of the said notice the respondents had until
Wednesday 27th
February to file their Notice of Opposition and accompanying
affidavits if they so wished.
Before
us, Mr Chitapi
who appeared for the appellant, applied for a postponement of the
hearing of the appeal pending the determination of the application
for reinstatement filed with the Registrar. It was submitted that
in essence, the appeal had not been withdrawn, notwithstanding
the
terminology used by the appellants legal practitioners although
the procedure adopted by the appellants legal practitioners
was
flawed in that the appellant ought to have proceeded in terms of Rule
39 of the Rules of this Court.
Mr
Nherere,
who appeared for the respondents opposed the application on the
ground that there was no appeal before this Court and therefore
nothing to postpone. The application for postponement, he
submitted, was not properly before this Court. He moved that both
applications
be struck off the roll with costs.
It
seems to me that the correct approach would be to grant the
postponement thus deferring all arguments on the merits of the appeal
as well as the two court applications to the resumed hearing. At
this hearing the court would also determine the issue of the costs
of
the court application filed by the appellants previous legal
practitioners.
Accordingly
the application for postponement is granted. The matter is
postponed sine die.
The costs of the postponement shall be borne by the appellant.
CHIDYAUSIKU
CJ: I agree
EBRAHIM JA: On 10 April 2001
HLATSHWAYO J entered judgment in an application brought by the
applicant against the respondents.
On 7 May 2001, the applicant,
dissatisfied with the judgment, noted an appeal against the judgment.
On 19 September 2001, the
Registrar of this Court, acting in terms
of Rule 43(1) of the Rules of the Supreme Court 1964, called upon the
applicants legal
practitioner to submit his heads of argument.
In terms of Rule 43(2), the legal practitioner is obliged to submit
his heads of
argument within fifteen days of being called upon to
do so. The Registrar's letter was delivered to the applicants
legal
practitioners on Friday 5 October 2001, and thus the applicant
had until close of business on Friday 26 October 2001 to submit his
heads of argument. I say close of business, because in terms
of s 33(2) of the Interpretation Act [Chapter 1:01], Friday
5 October
was not included in the period of fifteen days, nor were any of the
weekends. If heads of argument were not submitted,
the appeal would
be regarded as abandoned and
deemed to have been dismissed
(Rule 44(1)).
On Friday 26
October, the applicants then legal practitioner, instead of filing
heads of argument, filed a document, entitled Court
application:
Withdrawal of Appeal, in which it was intimated that the applicant
wished to seek an order to remove from appeal
the matter between
the parties and referring it back to the High Court for the
submission of further evidence. Why he chose
to proceed in this
odd way is hard to understand. I can only put it down to an
unprofessional ignorance of the rules of procedure.
What he should
have done, of course, was persist with the appeal, and apply in terms
of Rule 39 to lead further evidence on the
point of contention. The
heads of argument would be accompanied by an application for the
adduction of further evidence, with suitable
affidavits, to show that
the relevant criteria have been met. The criteria to be satisfied
before further evidence may be called
are set out in, among other
authorities, Warren-Codrington
v Forsyth Trust (Pvt) Ltd
2000 (2) ZLR 377 (S) at 381 per
McNALLY JA. It would then have been for this Court, if it
considered that grounds had been established for the adduction of
further
evidence, either to hear the evidence itself or to set aside
the judgment appealed from and to remit the case to the High Court
for
further hearing.
None of this
was done, and no heads of argument were submitted, but nonetheless
the case was set down for hearing. It is not clear
why it was set
down. I can only presume that the Registrar treated the document
filed by the applicants legal practitioner as
an application to
refer the matter to the High Court for the hearing of further
evidence. Understandably, though, the respondents
argue that there
is no appeal properly before this Court and that this Court is not
seized with the matter. Technically, there
is merit in what they
say, but there seems little doubt that what the applicant, through
its legal practitioner, wanted to do was
to have the matter remitted
to the court a
quo.
Because of the incompetence of its then legal practitioner, a
wholly wrong procedure was adopted.
Mr Chitapi,
for the applicant, has applied for a postponement of the hearing of
the appeal, pending the determination of an application for
reinstatement which he filed with the Registrar of this Court on 22
February. Notwithstanding the merits of what Mr Nherere,
who appeared for the respondents has said, I feel inclined, though
with some reluctance, to grant the application for postponement
so
that the application for reinstatement can be argued. I say this,
not out of a sense of charity, but for practical reasons.
If we
decline to hear the matter on the grounds that we are not seized of
it, inevitably there will be an application by the applicant
for the
reinstatement of the appeal. That application would no doubt be
opposed, and this Court will have to consider whether,
according to
the usual criteria, the application should be granted. In trying to
convince the court, the applicant will have to
show good cause,
and inevitably, as the chances of success form part of the criteria,
the merits of the case will have to be
argued. There seems, then,
little point in refusing to decide the matter now. To accede to the
application for postponement would
have the advantage of saving the
parties time and costs.
Naturally, though, the costs of
this hearing and any costs occasioned by the adoption by the
applicant of the wrong procedure must
be met by the applicant.
It seems to me that the applicant
may well have a legal basis to cause his former legal practitioner to
personally pay the costs which
appear to have resulted through his
incompetence. This Court, however, cannot make such an order
without having given him an opportunity
to be heard. I therefore,
take this issue no further and leave the matter to the applicant to
pursue his legal remedies.
In the result I agree with the
conclusions of my colleagues.
T.H.
Chitapi & Associates,
appellant's legal practitioners
Stumbles
& Rowe,
first respondent's legal practitioners
Kantor
& Immerman,
second respondent's legal practitioners