DISTRIBUTABLE (17)

Judgment No. SC 18/07

Civil Appeal No. 404/05

CHAMPION CONSTRUCTORS V (1) MODRACK MKANDLA AND (2) PATIENCE CHIPO MKANDLA

SUPREME COURT OF ZIMBABWE

HARARE, JUNE 15 & JULY 10, 2007

M Mandizha, for the applicant

T Sakutukwa, for the first respondent

No appearance for the second respondent

Before GARWE JA: In Chambers, in terms of the Supreme Court Rules.

This is an application for the reinstatement of an appeal which was regarded as abandoned and deemed to have been dismissed in terms of r 44 of the Supreme Court Rules.

The facts of this case are in the main not in dispute. On 21 December 2005 the applicant noted an appeal against the judgment of the High Court in case number HC 8969/03. The applicant undertook to pay for the preparation of the record. The Registrar of the High Court then prepared a record which did not contain a transcript of the proceedings or the evidence of the parties. The record also did not contain the legal practitioners’ addresses. These errors appear to have escaped the notice of the legal practitioners of both parties. On 11 July 2006 the Registrar of the High Court invited both parties to inspect the record. The following day i.e 12 July 2006, Messrs Musimbe & Associates, representing the respondents, wrote to the Registrar advising of the passing away of Mr Musimbe the sole partner of the law firm. On 26 July 2006 the applicant’s legal practitioners also wrote to the Registrar suggesting that the inspection of the record be deferred until the status of Musimbe & Associates was clarified. There was no response to that request. Instead the record was forwarded to the Registrar of the Supreme Court. On 7 August 2006 the Registrar of the Supreme Court then wrote to the applicant’s legal practitioners advising that the record of appeal was now ready and calling upon the same to file heads of argument within fifteen days from the date of service of the letter. No heads of argument were filed. On 11 September 2006 the Registrar wrote to the applicant advising of the dismissal of the appeal. Nothing further appears to have happened in this matter until 26 September 2006 when the applicant’s legal practitioners wrote to the respondents’ legal practitioners advising that an attempt to arrange the inspection of the record had been in vain as the record could not be located.

The applicant in his papers says that the record could not be located by the High Court Registrar because it had erroneously been forwarded to the Supreme Court before inspection had taken place. The High Court Registrar undertook to recall the record from the Supreme Court and the applicant believed therefore that the process would start all over again.

The respondents oppose the application. They state that the transcript was inspected by the parties. The Registrar of the High Court then referred the record to the Supreme Court as no further inspection was necessary. The respondents further submit that after receiving the letter from the Registrar calling upon the applicant to file heads of argument, the applicant should have take prompt action to ensure that the errors in the record were rectified. The applicant did not do so and appears to have taken action only after the appeal had been dismissed. The respondents further state that the applicant has no prospects of success on appeal and that this application should therefore be dismissed.

The position is now settled that in an application for the re-instatement of an appeal which was regarded as abandoned and deemed to have dismissed the applicant must show good cause for the default - Susan Chipo Vera v Mitsui & Company Limited SC 32/04. The requirements that have to be satisfied in an application of this nature are the same as in an application for condonation for late noting of an appeal and for extension of time within which to file an appeal. These are (i) the extent of the delay (ii) the reasonableness of the explanation proferred for the delay and (iii) the prospects of success on appeal. I will now deal with each of these requirements in turn.

THE EXTENT OF THE DELAY

The present application was filed on 4 May 2007. The notice to file the heads of argument was issued on 7 August 2006 and served on the applicant’s legal practitioners on 10 August 2006. The appeal was then dismissed on 11 September 2006 following the failure by the applicant to file heads of argument. The delay in making this application therefore commenced to run from 11 September 2006 when the appeal was regarded as abandoned. There was therefore a delay of just over seven months. Under normal circumstances such a delay would be inordinate. However, it is clear in this case that there were a number of other developments that made it impossible for the applicant to comply with the directive given by the Registrar. I will comment on this shortly.

THE REASONABLENESS OF THE EXPLANATION PROFFERED FOR THE DELAY

There can be no doubt in this case that the record of the proceedings that was forwarded to the Supreme Court by the Registrar of the High Court was incomplete. At a later stage both parties appear to have accepted that there was need for the record to be corrected and re-inspected before it could be forwarded to the Registrar of the Supreme Court. The death of the respondents’ legal practitioner complicated the matter further as both parties appear to have accepted that nothing further could be done until the status of the firm of which Mr Musimbe had been sole partner had been clarified. This much is clear from the correspondence entered into between the two law firms. The result of these developments was that no heads of argument were filed in the absence of a proper appeal record. It appears that the Registrar of the High Court was advised of the difficulty but at that stage the record had apparently already been forwarded to the Supreme Court. It further appears that no-one brought these difficulties to the attention of the Registrar of the Supreme Court. The Registrar of the Supreme Court then directed the applicant’s legal practitioner to file heads of arguments. The applicant’s legal practitioner did not do so.

That a record of appeal must be complete before submission to the Supreme Court goes without saying. Rule 15 of the Supreme Court Rules prescribes how an appeal record is to be compiled. In particular the record must contain the evidence of the witnesses who gave evidence during the trial and the Registrar of the High Court shall be responsible for its preparation. The Registrar is then required to certify the record before delivering the same to the Registrar of the Supreme Court. It is only after all this is complied with that the Registrar of the Supreme Court would call upon the appellant’s legal practitioner to file heads of argument in terms of Rule 43. In the event that heads of argument are not filed within 15 days, Rule 44 provides that the appeal shall be regarded as abandoned and shall be deemed to have been dismissed.

The need for appeal records to be certified by the Registrar and for both parties to be involved in the preparation of the record has been stressed in a number of decisions of this Court. In Winterton, Holmes & Hill v Lesley Patterson SC 115/95 GUBBAY CJ remarked at p 17:

“I draw attention to r 15(8) of the Rules of the Supreme Court. This expressly provides that not only the registrar but the legal representatives of both parties have an obligation to participate in the preparation of the record. Quite obviously, this is not being done. I cannot for a moment believe that this record was prepared with the sanction of either the appellants or the respondent.

I strongly urge the registrar to refrain from certifying an appeal record as a true and complete copy until he has called upon the legal representatives of the parties to satisfy themselves that it has been properly compiled and all irrelevant matter excluded therefrom.

This Court has been faced with poorly prepared records time without number. They have caused great inconvenience to its members. I must warn that if this undesirable practice persists much longer, such records will be rejected and the appeals postponed.”

It is clear in this case that the letter by the Supreme Court Registrar directing the applicant to file heads of argument was predicated on the existence of an appeal record that was in fact defective and which had not been properly inspected by both parties. It was therefore not possible for the applicant to file heads of argument based on an incomplete record. It is evident that attempts were made by both parties to have the record rectified but this attempt was made more difficult by the sudden demise of Mr Musimbe.

In all the circumstances, I consider the explanation given to be reasonable. Given the fact, however, that the applicant was called upon to file heads of argument by a certain date one would have expected the applicant’s legal practitioner to have approached the Registrar of the Supreme Court to advise of the difficulty the applicant faced in attempting to comply with the directive. The legal practitioner appears to have done nothing in response to the request to file heads of argument. The failure, however, does not render the explanation unreasonable. It is apparent that both parties were aware of the inadequacy of the appeal record. The Registrar of the Supreme Court was not and as a result called for the filing of heads of argument when these were not in fact due.

PROSPECTS OF SUCCESS

The court a quo found that the respondents had breached the agreement by failing to pay the instalments on due date. However the court found that in order to terminate the agreement on that basis the applicant should have forwarded a notice in terms of s 8 of the Contractual Penalties Act [Cap. 8:04] by registered post. The applicant’s case appears to be arguable. I am not required at this stage to make a definite finding on the prospects of success. This is for the appeal court. As stated in Susan Chipo Vera v Mitsui & Anor supra:

“The applicant deserves her day in court regardless of the merits of the case…” (at p 3 of the cyclostyled judgment)

In all the circumstances the application must succeed.

On the question of costs, I consider the suggestion by the applicant that these should be in the cause to be fair in view of the fact that administrative error was largely to blame for the difficulties experienced in this matter.

It is accordingly ordered as follows:

1. The appeal be and is hereby reinstated.

2. The costs of this application shall be in the cause.

Mandizha & Company, applicant’s legal practitioners

Sakutukwa & Partners, first respondent’s legal practitioners