DISTRIBUTABLE (71)
Judgment No. SC 27/07
Civil Appeal No. 172/01
DR
MUNETSI STONE MOMBESHORA v (1) BRIGHT NDORO
(2) THE REGISTRAR OF THE HIGH
COURT
SUPREME
COURT OF ZIMBABWE
HARARE,
MAY 9, 2007
G Mhlanga, for the applicant
W Muchengeti, for the first respondent
No appearance for the second respondent
Before CHEDA JA: In Chambers, in terms of r 31.
This is an application for condonation of late noting of appeal and
extension of time in which to appeal.
When this application was first placed before me, in Chambers, I
observed that it had not been served on the other interested
parties
and I advised the Registrar accordingly.
The Registrar advised the legal practitioners of the applicant by
minute dated 2 April 2007.
On 17 April 2007, the legal practitioners filed certificates of
service on the first respondents legal practitioners and on
the
Registrar of the High Court. The certificate of service on the
Registrar does not state the name of the person served. It
merely
says service was on the Registrar at the Registrars Office.
The judgment appealed against was not filed, but only the order
made against the applicant was filed. This was not sufficient.
The applicants affidavit attacked the Registrars actions in
abandoning the appeal because it was not served on him.
The Registrar was entitled to do that in view of the provisions of
r 44.
The judgment was on 31 May 2001. The appeal was noted on 20 June
2001, but not copied to the Registrar of the High Court.
Nothing was done by the applicant until five years later when the
Registrar advised that the appeal was abandoned, as the legal
practitioners of the applicant had not responded to his request to
file a copy of the notice of appeal. The Registrar of the High
Court
had been neither cited nor served.
According to the Registrar there was therefore no valid notice of
appeal.
When the parties appeared before me, I pointed out that there was
no copy of the judgment appealed against. I was then furnished
with
the copy. It turned out that the dispute was over property belonging
to a trust. The trust was neither served nor cited
in the
application.
In addition there was nothing said on the merits. It was clear
that both the defective application and the appeal had no prospects
of success.
The judgment clearly showed that the property belonged to the trust
and that the party who sold it had no right to do so.
There was also evidence to show that while the appellant alleged
that he had made part payment for the property, the receipts
he
produced were for rental even after the alleged date of sale.
The above points were made very clear at the hearing, before I
dismissed the application.
The applicant has now changed legal practitioners and the legal
practitioners who now act for him enquired if there were reasons
for
my dismissal of the application.
The above are the reasons.
Scanlen & Holderness, applicants legal practitioners
Chinyama & Partners, first respondents legal
practitioners
