Judgment No. SC 4/05

Civil Appeal No. 32/03

JAISON KOKERAI MACHAYA v LAMECK NKIWANE MUYAMBI

SUPREME COURT OF ZIMBABWE

HARARE, FEBRUARY 4, 2005

T. Mawere, for the appellant

L Uriri, for the respondent

Before: ZIYAMBI JA, in Chambers, in terms of Rule 39 of the Supreme Court Rules.

The applicant, who was the parliamentary candidate for the Zimbabwe African National Union – Patriotic Front (“ZANU-PF”) in the parliamentary elections held in June 2000, was duly returned as Member of Parliament for Gokwe South. On 26 July 2000 the respondent filed a petition in terms of s 132 of the Electoral Act [Chapter 2:01](“the Act”) complaining of an undue election. On 15 January 2000, the High Court delivered its judgment upholding the petition. (HH 4/2003) An appeal was duly noted on behalf of the applicant on 31 January 2003.

On 19 May 2004, the Registrar of this Court wrote to the applicant's legal practitioners advising them that the record of proceedings were received by the Supreme Court on 19 May 2004 and calling on them to file Heads of Argument within 15 business days from the date of service of the letter. The letter was served on the applicant’s legal practitioners on 20 May 2004. There was no compliance with this request.

On 14 October 2004, the Registrar of this Court again wrote to the appellant’s legal practitioners this time advising them that the appeal was deemed to have been dismissed since no Heads of Argument were received within the prescribed period (stated in her letter of 19 May 2004). It was advised that the records were being returned to the court of origin to enable execution by the respondent of the judgment appealed against. Only then did the appellant’s legal practitioners respond.

They received the letter on 22 October 2004 and filed this application on 28 October 2004. Notwithstanding the requirement of Rule 39 of the Rules of this Court that applications should be by way of court application, the application filed was a chamber application. The founding affidavit was sworn by the legal practitioner who had been handling the appeal. Despite this fact, it took the legal practitioner six days to file the application.

The explanation tendered by Mr Mawere, who appeared for the applicant, is that despite many requests for the record from the Registrar of the High Court, a copy was not availed to the applicant's legal practitioners. This explanation is wholly unsubstantiated.

There was, attached to the papers, no letter written to the Registrar of the High Court; no file note showing that visits were made to the Registrar's Office in search of the record; no note of telephone conversations with the Registrar requesting the record; no letter to the Registrar of this Court indicating that there was a difficulty in obtaining the record.

The deponent to the founding affidavit states that he was aware that the respondent’s legal practitioners were in possession of their copy of the record and he was content to wait to peruse the respondent's copy after the respondent’s Heads of Argument had been drawn by an advocate briefed for that purpose.

In paragraph 6 of the founding affidavit the legal practitioner states:

6. “Accordingly we failed to do our Heads of Argument in time, a position which we relayed to our learned friend Mr Lewis Uriri of Honey & Blanckenberg legal practitioners for the respondent who promised to supply us with his copies of the record as soon as Advocate Zhou who (sic) they had briefed was through with them.

7. We have not yet received any copy of the records from the High Court Registrar nor from our learned friend, Mr Uriri and the only communication we have had was from the Registrar of this Honourable Court advising us that the applicant’s appeal was regarded as abandoned.”

In paragraph 8 he avers that his failure to file Heads of Argument was “neither out of deliberate failure nor was it due to tardiness on our part but due to administrative deficiencies at the High Court. We therefore aver that this cannot be visited on our client”.

A more fitting example of tardiness and negligence can hardly be found. The legal practitioner was advised by the Registrar that the records had been received at the Supreme Court. If he encountered difficulty in obtaining the record from the High Court, why did he not peruse or obtain a copy of the record held at the Supreme Court for the purpose of drawing Heads of Argument? There was, in addition, no evidence by the applicant to the effect that he made efforts to ensure the timeous prosecution of his appeal.

As Mr Uriri submitted, he was able to obtain the respondent’s copy of the record from the Registrar of the High Court with no difficulty. This, together with the fact that the applicant has attached no documentary proof of his efforts to obtain the record, suggests to me that the legal practitioner made no effort to obtain the record.

It seems that the applicant’s legal practitioner was content to do nothing – and nothing he did. Mr Mawere concedes that the legal practitioner was remiss but asks that the client not be visited “with the sins of his legal practitioner”.

How many times has this plea been heard in the many applications before this Court whether for condonation and extension of time within which to appeal, or for reinstatement of appeals! Times innumerable. Yet the flood of applications continue unabated and the same excuses are tendered over and over.

The time has come for sterner measures to be taken of applications of this nature where negligence, tardiness, and disdain for the rules of court is exhibited by legal practitioners. The often quoted passage from the judgment of STEYN CJ in Saloojee & Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141 C–E bears repeating here, namely, that:

“There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

And at F-H:

“A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf. Regal v. African Superslate (Pty.) Ltd., supra at p 23 i.f.) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success”.

The applicant himself is not without blame. There is nothing in the papers to satisfy me that the applicant made efforts to ensure the timeous prosecution of his appeal.

The notion that condonation of a breach of the Rules is there for the asking ought to be dispelled. And, there must be finality to litigation. It is an injustice to a party who has been waiting to execute his judgment to be forced to suffer the effects of the disregard by the other party’s legal practitioners of the Rules of Court, namely, the delaying of the execution of his judgment.

The factors usually weighed by the court in considering applications of this nature are the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. See Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4^th ed at p 898.

It was submitted on behalf of the applicant that there are good prospects of success on appeal in that the finding of the learned Judge that the perpetrators of the act of violence proved to have been committed against the respondent were agents of the applicant, was wrong. I will address this submission below but suffice it to say at this stage that even where there are prospects of success, that factor is not necessarily decisive. See Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at 315 F-H where SANDURA JA remarked:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be. This was made clear by MULLER JA in P E Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799 D-E, where the learned JUDGE OF APPEAL said:

‘In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.’”

See also Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131 G-J:

“The notice of appeal, however, states no reasons for concluding that the appeal is likely to succeed. It does no more than to recite that the trial Court erred in making the findings on which its judgment is based; and to list those findings which, so it is suggested, the learned Judge should have made.

In applications of this sort the prospects of success are in general an important, although not decisive, consideration. It has been pointed out (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and others 1985 (4) SA 773 (A) at 789C) that the Court is bound to make an assessment of the petitioner’s prospects of success as one of the factors relevant to the exercise of the Court’s discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. It seems to me that in the instant case the cumulative effect of the factors which I have summarised in paras (1)-(5) above is by itself sufficient to render the application unworthy of consideration; and that this is a case in which the Court should refuse the application irrespective of the prospects of success. (Cf Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 687 A; P E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D-E.)”

I am of the view that the lack of diligence exhibited by both the legal practitioner and the applicant in this matter is sufficient to render this matter unworthy of consideration irrespective of the prospects of success.

Despite this view I considered the prospects of success and have come to the conclusion that they are slim. The respondent who contested the elections as the MDC candidate for the same constituency, was, on 19 June 2000, severely assaulted by a number of Zanu PF supporters who included Johannes Dzenga, a member of the applicant’s campaign team. He was hospitalized as a result of the assault and was allowed out in order to vote on the 25 June. Thereafter he returned to the hospital for completion of his recovery process.

That Dzenga was a member of the applicant’s campaign team was common cause in the court a quo. The learned Judge found that a corrupt practice had been committed by Dzenga, an agent of the applicant within the meaning of s124 (a) of the Act and that accordingly the election was void.

The learned Judge also found that the election of the applicant could not be saved by the provisions of s125 since the applicant on the evidence before her had not taken any reasonable precautions to prevent the commission of corrupt practices at the election.

In the circumstances I am not persuaded that there are any reasonable prospects of success on appeal and the application is accordingly dismissed.

Ziumbe & Mtambanengwe, appellant's legal practitioners

Honey & Blanckenberg, respondent's legal practitioners