Judgment
No. SC 8/09
Civil
Application 219/08
NMBZ
HOLDINGS LTD v THE LIQUIDATOR OF CONTINENTAL
SECURITIES TRADING PRIVATE LIMITED
SUPREME
COURT OF ZIMBABWE
HARARE,
OCTOBER 29, 2008 &
FEBRUARY
4, 2009
H Zhou, for the applicant
F Mutamangira, for the respondent
CHEDA JA: In Chambers, in terms of r 31 of the Supreme Court Rules.
This is an application for an extension of time in which to note an
appeal in terms of r 31 of the Supreme Court Rules.
On 27 August 2008 the respondent obtained judgment against the
applicant for the return of a number of vehicles listed in the
order
together with costs of suit.
On 18 September the applicant filed a notice of appeal against that
judgment. The notice of appeal was defective in that it
did not give
the date of the judgment concerned. When the respondent was served
with this application it filed its opposition
to it.
The respondent pointed out that the applicant had not given a
reasonable explanation for the delay and reasonable prospects of
success. The respondent also pointed out that applicant admitted
that it uplifted the judgment on 1 September 2008, yet the judgment
was delivered in Motion Court on 27 August 2008.
The applicant, in its affidavit sworn to by Mr Narotam, only
referred to an affidavit by Mr Lloyd and said the applicant was
not
manifestly in wilful default.
On the prospects of success, again Mr Narotam only referred to
Annexures D & E and said the directors and shareholders of
Continental Securities Trading (Pvt) Ltd were all perfectly aware of
the terms of the contractual arrangements which had been entered
into
which resulted in the motor vehicles in question remaining in the
possession of the applicant. Annexure D is referred to
in the Index
as a Notice of Appeal on pages 16-18 on the papers. Annexure E is a
Notice of Appeal which is an amended Notice of
Appeal.
Reference to the Notice of Appeal is inadequate as it only tells
the Court the findings against which an appeal is made. It
does not
deal with the prospects of success required in the procedure for this
type of application.
It is a requirement in our law that the affidavit should deal with
this aspect of the application, that is, the prospects of
success.
The respondent, in opposing the application, raised these issues,
and, in addition, pointed out that the applicant only instituted
the
application when a writ of execution was served.
It also pointed out that the applicant sought to blame its legal
practitioners instead by reference to the fact that the matter
was to
be dealt with by Mr Lloyd who later declined saying he was about to
leave the country.
In Director of Civil Aviation v Hall 1920 (2) ZLR 354 it was
pointed out that the prima facie prospects of success needed to be
set out in the application.
The judgment which the applicant seeks to have set aside raises an
important point, which is that the applicant could not deal
with
company property as if it was its own when it is a shareholder.
In response to that, the applicant then attempted to counter that
by giving a history of the matter which was never raised in
the
papers.
These are matters that the applicant had the opportunity to deal
with in its affidavit. They were not part of the grounds of
appeal
either.
Once it was noted that the matter was opposed, both Mr Narotam and
Mr Lloyd filed replying affidavits.
Mr Narotam submitted that it was not necessary to argue in detail
the question of prospects of success on appeal. He said the
Notice
of Appeal speaks for itself and argument would be addressed at the
hearing of the application. This is clearly the opposite
of what the
Rules say. The end result is that the applicant was not willing to
say anything about its prospects of success.
Mr Lloyd also said absolutely nothing about the prospects of
success. Instead he said the failure to act timeously rested with
the applicants advisors. The fact that the applicant was only a
shareholder and should not have dealt with the company property
as
its own was not challenged.
The fact that in so doing the applicant had ignored the interest of
the other shareholders was not challenged. It is difficult
to see
how, in such a situation, the applicant believed that there were
prospects of success.
In conclusion, the application fails on the basis that no
reasonable explanation for the delay was given, and no attempt was
made to proffer any prospects of success.
The application is therefore dismissed with costs.
Gill, Godlonton & Gerrans, applicants legal
practitioners
Mutamangira & Associates, respondents legal
practitioners
