REPORTABLE
(24)
Judgment
No S.C. 34\03
Civil
Application No 246\03
ELECTORAL
SUPERVISORY COMMISSION v MORGAN TSVANGIRAI
SUPREME
COURT OF ZIMBABWE
HARARE
OCTOBER 13, 2003
G.C.
Chikumbirike,
for the appellant
B.
W. Elliot,
for the respondent
Before
CHIDYAUSIKU CJ: in Chambers, in terms of the
Supreme
Court Rules
This
is an application for the late noting of an appeal or an extension of
time within which an appeal should be noted in terms
of Rule 31 of
the Supreme Court Rules.
It
is well settled that an extension of time within which to note an
appeal will be granted where good cause has been shown. In
considering whether good cause has been shown the following facts
will be considered:
the
duration of the delay;
the
explanation for the delay;
the
prospects of success on the merits
Dealing with
the first and second requirements Mr Chikumbirike,
for the applicant, deposed to an affidavit that reads, in part, as
follows:-
That
I am the Appellants legal practitioner and the facts deposed to
hereunder are within my personal knowledge and are true and
correct.
On the 15th
of August 2003, I prepared and filed a Notice of Appeal. I attach
hereto the Notice of Appeal. As can be seen from the Notice
of
Appeal, a mistake was made and it was issued out of the High Court
instead of this Honourable Court.
This mistake
went unnoticed until I received a letter from Messrs Gill, Godlonton
& Gerrans who represent the respondent on the
8th
of September. As soon as I noticed the mistake, I corrected the
error and filed this application. It was a genuine error which,
unfortunately, went unnoticed by me when I signed the appeal.
There
are prospects of success in this appeal as can be seen from the
Notice of Appeal. I therefore seek for condonation of late
noting
of appeal.
According
to the Notice of Appeal attached to these papers, judgment intended
to be appealed against, was handed down on 6 August
and the appeal
was lodged within the period required by the rules of the High Court
but the appeal was lodged in the wrong court
- in the High Court -
and not the Supreme Court. If it were not for that mistake there
would be no need to apply for condonation.
Upon the mistake being
pointed out to the applicant he immediately launched this
application.
The
above facts are not in dispute. I am accordingly satisfied that
the delay, if one can call it a delay, was not inordinate
and the
explanation for the delay is plausible.
Turning to
the prospects of success on the merits Mr Elliot
raised a number of points.
Firstly he
argued that the numbering of cases was erroneous. This, Mr
Chikumbirike
accepted and applied to amend the case number. I have no problem in
allowing the application for amendment as it is really trivial.
Secondly, Mr
Elliot
raised the issue that the Notice of Appeal that was filed did not
contain a prayer and, therefore, was fatally defective. There
would
be substance in this point had it not been for the fact that,
accompanying this application was also an application to amend
the
notice of appeal to take care of the defect. The respondent suffers
no prejudice by the granting of an application to amend
the Notice of
Appeal. I, accordingly, grant the application for amendment of the
Notice of Appeal.
Mr Elliot
also raised the issue that leave of the learned judge who issued the
order was necessary as the point appealed against was interlocutory.
Mr Chikumbirike
contended that the effect of the order was final, therefore, no leave
was required. The issue, in my view, is debatable and justice
and
fairness demands that I leave this issue open for determination of
the court after hearing argument on the matter. The applicants
prospects on the merits cannot be said to be so hopeless that this
application cannot but be intended to buy time.
In
the result I am satisfied that the delay was minimal and the
explanation for the delay is satisfactory. I accordingly would
grant the application and an order in terms of the draft is granted.