REPORTABLE
(52)
Judgment
No. SC. 62/05
Civil
Application No. 302/05
(1)
JOHN MANGOSHO (2) CONELLIA MANGOSHO
v
(1)
BILLIE SAINI KAHARI (2) WEBSTER MAFUNDO
(3)
THE REGISTRAR OF DEEDS
SUPREME
COURT OF ZIMBABWE
HARARE,
OCTOBER 25 & NOVEMBER 9, 2005
D
T Mugadza, for the applicants
Ms
J Wood, for the second respondent
No
appearance for the first and third respondents
Before:
CHEDA JA, In Chambers, in terms of rule 31 of the Supreme
Court Rules
This
is an application for condonation of the late noting of an appeal.
The applicants are husband and wife. They have been
occupying a
property known as Stand No. 1134, Glen Norah A
Township, Harare (the property) since 1989. The
applicants
say initially they were renting the property from the first
respondent but then bought it from him in 1992. They did
not take
transfer of the property.
In
October 2002 the first respondent sold the same property to the
second respondent. The second respondent took transfer of the
property. This second sale was contested at the High Court, and
judgment was granted in favour of the respondents.
The
applicants wish to appeal against that judgment, but they are out of
time. They now seek leave to note their appeal out of
time.
I
am not prepared to grant them the leave sought for the following
reasons
1. They have failed to give a
satisfactory explanation for the delay.
The first applicant says the
judgment was given on 23 February 2005, but he was not advised
by his then legal practitioner who
was representing him. He only
got to know of the judgment on 7 March 2005 when he was served
with a writ of ejectment. He
asked his legal practitioners to file
an appeal on 9 March 2005.
Nothing was done then. The
appeal was only filed on 6 April 2005. This was about
thirty-three days after the first applicant
got to know about the
appeal and about forty days from the date on which it was handed
down.
2. A letter was written to the
applicants legal practitioners on 13 May 2005, pointing out
that they were out of time.
The applicants did not respond
to this letter until 23 June 2005. Even after that, the
application for condonation was only
filed in September 2005.
Mr Mwonzova
signed an affidavit in which he says he was campaigning for elections
and sought to make an excuse for the other
legal practitioner by
saying that that other legal practitioner was inundated with work.
3. The applicants also failed
to comply with the provisions of rule 34 of the Supreme Court
Rules (the Rules), in that no
arrangement was made about the
preparation of the record and no undertaking was made regarding
payment for its preparation.
The appeal is therefore deemed
to have lapsed in terms of rule 34(5) of the Rules.
4. The
applicants chose to say nothing about the merits and the prospects of
success if the application is granted.
Instead the first applicant only
referred to the grounds of appeal. Those grounds do not contain
anything that can be considered
on the merits and the prospects of
success on appeal.
Accordingly,
the application for condonation of the late noting of the appeal is
dismissed with costs.
Mwonzora
& Associates,
applicant's legal practitioners
Byron Venturas & Partners,
second respondent's legal practitioners