DISTRIBUTABLE
(10)
Judgment
No. SC 14/06
Civil
Application No. 343/05
MINISTER
OF TRANSPORT & COMMUNICATION
v
C
V CHITATE
SUPREME
COURT OF ZIMBABWE
HARARE,
MAY 16, 2006
V
B Chigwida, for the
appellant
N
Chiwa, for the
respondent
Before: ZIYAMBI JA, in Chambers, in terms of r 5
of the Rules of the Supreme Court.
Application
for an extension of time within which to appeal
The respondent was awarded, by the High Court, damages
in the sum of $400 000 000.00 in respect of a collision which took
place between
a vehicle belonging to the respondent and a truck
belonging to the applicant on 6 September 2001. The applicants
driver perished
in the collision.
The founding affidavit is sworn by the legal
practitioner for the applicant. She states that the judgment sought
to be appealed
against was delivered on 22 June 2005. As the legal
practitioner representing the applicant, she was unaware that the
judgment
had been delivered as she was on maternity leave from May
August 2005. She first had sight of the judgment in September (date
not given) when she went to the office to extend her leave to October
2005. On perusal of the judgment she noted the comment by the
learned
Judge that the judgment had been written without the benefit of her
closing submissions. She then left the file in the
hands of another
law officer who proceeded to communicate with the Judges clerk in
the hope of clearing up the issue of the
submitting of our closing
arguments. She attached to her affidavit a letter from her
colleague addressed to the Judges clerk
dated 1 August 2005. The
letter states in part:
We
refer to the above matter in particular to the judgment that was
handed down on 22 June 2005 by the Honourable Bhunu J in particular
to pages 4 and 5 of the judgment and advise that the closing
submissions by Ms Chigwida were filed on 22 March 2005. In this
regard
please see attached copy.
Please may you bring this to the
Honourable Judges attention and advise our office accordingly
..
The deponent averred that it was the hope of her
colleague that the Judge would vary his order in the line (sic) of
enlightenment
on that issue.
A response from the Judges chambers was received on
23 September 2005. The letter dated 4 August 2005 and date stamped
12 August
2005 and addressed to the Civil Division of the Attorney
Generals Office stated:
In
response to your letter dated 1 August, I want to high light(sic)
to you that the respective lawyers were supposed to submit their
closing submissions by 16 March 2005 and it was even endorsed on
the
file cover by the Honourable Judge on 8 March 2005.
According to your papers, the
submissions were date-stamped on 22 March, well after the due date,
worse still they did not reach the
judges chambers.
I even communicated with Ms Gatsi
before the judgment was written and I was told Ms Chigwida was on
maternity leave. Again, I talked
to you Ms Mudenda in person and
you told me the same story that Ms Chigwida was on maternity leave.
Consequently the judge prepared
the judgment.
The deponent resumed office and continued the correspondence with the
judges clerk. She was under the bona fidebelief that
the variation of the order could be done. She waited for a
response but none was forthcoming thus prompting her to
file this
application.
She averred that the appeal had prospects of success in that the
respondent (Plaintiff in the High Court) had no locus standias
the vehicle in respect of which the claim was made belonged to the
respondents wife and not to the respondent. Further, there
were
two accident reports by the police which had different implications
and the respondent had failed to call the police detail
who attended
the scene of the accident to verify the existence of two different
reports. There are further grounds of appeal attacking
the
assessment of the evidence by the learned Judge and the quantum of
damages.
The application is opposed on grounds that the delay is inordinate
and willful and the prospects of success slim since the learned
judge
dealt extensively with the issue of locus standiand his
judgment thereon is unassailable. Further, the issue of an
inspection in locowas never raised by the applicant at the
trial it being common cause that the road accident in which the
respondents vehicle was damaged
had occurred in 2001 and that, due to
the effect of rain wind and use by many vehicles of the road, an
inspection in locowould yield no helpful results. As regards
the quantum of damages, the amount claimed is far less than the
actual worth of the vehicle.
Because of the effects of inflation
the amount awarded would be insufficient to replace the vehicle whose
value has soared since
the date of the judgment.
It would be naïveto accept the explanation given by the
applicants legal practitioner as being reasonable. Nowhere in the
affidavit is it averred
that she or her office checked with the
judges clerk in order to ascertain whether the judgment had been
delivered. As early
as 1 August 2005, the applicants legal
practitioners were aware that the judgment had been delivered on 22
June 2005. Yet no
steps were taken to seek condonation and an
extension of time within which to appeal. The deponents averment
that she thought
the order would be varied is nonsensical having no
foundation in law. Are there not set procedures in the Rules of the
High Court
for applying for variation of orders and rescission of
judgments? The deponent has not explained in the application and to
this
Court why she hoped that a court would vary its order upon
receipt of a letter by her and without notice to the other party.
As to the prospects of success, I agree with the
respondent that there are little or no prospects of success on
appeal, the learned
Judge having been satisfied that the vehicle was
jointly owned by the respondent and his wife. Regarding the police
reports, it was
open to the applicant, if it thought the evidence of
the police detail necessary, to call him to give evidence. This,
the applicant
did not do. As to the quantum of damages, the effects
of present day inflation on the prices of goods is a well known fact.
In
the end the respondent will be out of pocket and the longer the
delay in finalizing the matter the more difficult it will be to
replace
the respondents vehicle with the amount awarded. Thus it
can be seen that the prejudice to the respondent in granting this
application
is great.
Accordingly when regard is had to all the above factors,
I have to hold that the applicant has failed to satisfy me that there
are
good reasons for granting the application and it is therefore
dismissed with costs.
Attorney-Generals
Office, appellant's legal practitioners
Chihambakwe, Mutizwa & Partners, 's
legal practitioners