REPORTABLE ZLR
(68)
Judgment
No. SC 20/08
Civil
Application No 142/04
(1)
MICHAEL MTAMBO (2) SITHOKOZILE NGWENYA
(3)
FELIX MUNYORO (4) NOEL MATORERE (5) NHAMOINESU
DZENGA (6) FARAI MAMBWERE (7)
WASHINGTON
MEDA v (1) ZESA PENSION FUND (2)
MESSENGER OF COURT, HARARE
SUPREME COURT OF
ZIMBABWE
HARARE, JUNE 4, 2008
S Mushonga, for
the applicants
S T Tavenhave,
for the first respondent
No appearance for the
second respondent
CHEDA JA: In Chambers in terms of r 31(4) of the Supreme Court
Rules.
This is an application for an order to be granted in the following
terms:
IT IS ORDERED THAT:
The Registrar of the High Court be and is hereby directed to
reinstate the applicants appeal.
The Registrar of the High Court is to inform the applicants within
fourteen days of the costs of the preparation of the record
and the
applicants are to pay within (14) days of receipt of the
confirmation of the cost of the record.
The cost of this application be costs in the cause if the respondent
do not oppose it but if they oppose the respondents are
to pay the
costs of suit.
Two issues arise in this application and they are:
Did the applicants comply with r 34(1); and
Are there prospects of success.
Rule 34(1) provides as follows.
The appellant unless he has been granted leave to appeal in forma
pauperis, shall, at the time of noting an appeal in terms of r 29
or within much period therefrom, not exceeding five days, as the
registrar
of the High Court may allow, deposit with the said
registrar the estimated cost of the preparation of the record in the
case concerned:
Provided that the registrar of the High Court may, in lieu of such
deposit, accept a written undertaking by the appellant or his
legal
representative for the payment of such cost immediately after it has
been determined.
The applicants have argued that they requested the registrar to
prepare the record and made an undertaking to pay. This is denied.
In view of the denial, all the applicants needed to do was to produce
a copy of the undertaking filed together with the notice
of appeal.
The appellants have not done so but only argue that the registrar
could not have prepared the record if such undertaking
had not been
made. This is not sufficient. The point still stands that it has
not been shown that there was an undertaking to
pay.
In the absence of the deposit being made or an undertaking to pay
acceptable to the registrar, then the notice of appeal did not
comply
with the Rules and was therefore defective.
The applicants request that they be allowed to pay for the record
after 14 days of notification of the cost. This is not in accordance
with the Rules. The Rules require that payment of such cost be made
immediately after it has been determined.
The Court cannot alter this requirement in that way.
PROSPECTS OF SUCCESS
The applicants were indeed granted an opportunity to purchase the
properties as sitting tenants. However, when they were called
upon
to pay they failed to do so within the period provided.
The period was extended. Again they still failed to pay. The
applicants cannot hold the first respondent to an agreement that
fell
away as a result of their failure to pay.
There are therefore no prospects of success on appeal.
In the result the application for the reinstatement of the appeal
is dismissed with costs.
Mushonga & Associates, applicants legal practitioners
Manase & Manase, first respondents
legal practitioners
