DISTRIBUTABLE
(61)
Judgment
No. SC 51/06
Civil
Application No. 98/06
NICHOLAS
MUGADZA
v
(1)
EZEKIEL DHITIMA (2) SHERIFF OF ZIMBABWE
(3) CITY OF HARARE (4) ZIMBABWE
BUILDING
SOCIETY
SUPREME
COURT OF ZIMBABWE
HARARE,
OCTOBER 11, 2006
K
Gama,
for the applicant
H
Zhou,
for the first respondent
No
appearance for the second, third and fourth respondents
Before: CHEDA
JA, in Chambers in terms of r 34 of the Supreme Court Rules.
The
applicant was the registered owner of an immovable property known as
Stand Number 8393 of Budiriro Township, Harare.
Although
no details of the background are given, what is common cause is that
the applicant had obtained a mortgage bond from Zimbabwe
Building
Society (the fourth respondent). He defaulted in payments. The
fourth respondent repossessed the property and eventually
had it sold
by auction.
The
applicant applied to the High Court to have the sale set aside and
was granted an order to stop the transfer of the property to
the
purchaser.
The
order was conditional in that it gave him sixty days within which to
pay the arrears. This order did not cancel the sale that
had taken
place.
According
to the first respondent, the applicant still failed to comply with
that order to pay within sixty days.
The
first respondent obtained an order from the High Court on 30 July
2003 to have the property ceded to him.
The
applicants subsequent application to the High Court to set aside
the sale was dismissed. This is the order against which
he noted an
appeal.
After
noting the appeal, the applicant failed to comply with the Rules of
the High Court as he did not pay, or make any undertaking
to pay, for
the preparation of the record.
The
Registrar of the High Court, by a letter dated 16 March 2006, advised
his legal practitioners that the appeal was deemed to
have lapsed.
He has now applied for the reinstatement of the appeal.
In considering such an
application the Court has to take into account, amongst other
factors, the reasons for failure to comply with
the Rules and the
prospects of success if the application is granted.
The
applicants explanation is not satisfactory. He says he was at
his home in Gokwe where communication with his legal practitioners
is
difficult, and he only contacted them after a relative advised him
that the legal practitioners wanted to speak to him.
He
did not narrate in detail in his founding affidavit what happened,
but when his brief explanation was challenged he filed a replying
affidavit, in which he said he advised his legal practitioners even
before his application was dismissed that if he lost the case
he
would appeal.
The
applicant was in court on the day the application was dismissed. He
does not say what he did then, but excuses himself and
his legal
practitioners by saying they could not undertake to pay for the
record as he had not yet given them instructions, yet they
were able
to file the appeal within the time limit.
His
legal practitioners would have known that once they noted an appeal
there was need for the record to be prepared. They have
not given
any explanation for their failure to comply with this requirement.
The excuse that the applicant seeks to put forward
for his legal
practitioners is unacceptable. It cannot be said that the applicant
wanted them to appeal when he was not going to
pay for the record.
I
find the explanation to be unsatisfactory.
On
the other hand, even assuming that this could be the fault of his
legal practitioners, the applicant has not shown that there
are
prospects of success in the appeal if the application is granted.
In
his founding affidavit, the applicant clearly stated that he did not
wish to deal with the merits save to refer to the notice
of appeal.
As
a result, a lot of background information as to what transpired was
not given. It was only at the hearing of the application
that his
legal practitioners disclosed that there had been several court cases
on the same matter, but reference to them could not
assist an
applicant who is reluctant to make his case clear on the founding
affidavit.
The
High Court found that what the applicant sought to do was to reverse
the transfer, but had no valid challenge to the sale as
there was no
irregularity shown.
The
applicant argued that when he tried to make payment for the arrears
the Building Society turned him away as they had been paid
by the
purchaser of the house. The purchaser also refused to surrender the
house to him. They were entitled to do so as he was
only trying to
reverse a process which was by then complete.
I
therefore see no prospects of success on appeal even if this
application is granted.
Accordingly,
this application is dismissed with costs.
Madzivanzira
& Partners,
applicants legal practitioners
Bvekwa
Legal Practitioners,
respondent's legal practitioners