Court name
Supreme Court of Zimbabwe
Case number
SC 10 of 2003
Civil Application 322 of 2002

Selk Enterprises (Pvt) Ltd. v Chimenya and Others (22/02) (SC 10 of 2003, Civil Application 322 of 2002) [2003] ZWSC 10 (07 January 2003);

Law report citations
Media neutral citation
[2003] ZWSC 10













DISTRIBUTABLE
(21)


Judgment
No. SC 10/03


Civil
Application No. 322/02








SELK
ENTERPRISES (PRIVATE) LIMITED v





(1)
OLIVER HURUNGWE CHIMENYA


(2)
PHILLIP VALERIO SIBANDA


(3)
MUGOVE MERCY SIBANDA


(4)
REGISTRAR OF DEEDS








SUPREME
COURT OF ZIMBABWE


HARARE,
JANUARY 8, 2003








C
T Mantsebo
,
for the applicant





No
appearance for the first respondent





I
E G Musimbe
,
for the second and third respondents





No
appearance for the fourth respondent








Before
GWAUNZA  JA, In Chambers in terms of rule 34(5) of
the Supreme Court Rules





After
hearing argument in Chambers in this matter, I dismissed the
application for condonation of the late noting of an appeal with
costs. I now give the reasons for the order.





The
applicant filed an application in the High Court seeking certain
relief against the respondents. The court
a quo
handed down its judgment, in terms of which the applicant’s claim
was dismissed with costs, on 11 September 2002. The applicant
timeously filed its notice of appeal to this Court on 30 September
2002. It then failed to comply with rule 34(1) of
the Supreme
Court Rules, which reads as follows:





“34 Preparation
and Service of Record





(1) The
appellant, unless he has been granted leave to appeal
in
forma pauperis
, shall,
at the time of the noting of an appeal in terms of rule 29 or
within such 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.”





This
provision is to be read together with subrule 5 of the same
rule, which reads:





“If
the appellant fails to comply with the provisions of subrule (1)
or any written undertaking made in terms of the proviso
to that
subrule, the appeal shall be deemed to have lapsed unless a Judge
grants relief on cause shown.”





On
4 November 2002 the legal practitioner representing the second
and third respondents addressed a letter to the Registrar
of the High
Court, asking whether the applicant had paid the costs of preparing
the record. The Registrar responded to this letter
on 28 November
2002, informing the legal practitioners that as of that date the
applicant had not complied with rule 34(1)
and that, in terms of
subrule 5 thereof, the appeal was deemed to have lapsed.





It
was that letter, copied to the applicant’s legal practitioners,
which is said to have prompted this application. The applicant
therefore seeks an order for the reinstatement of the appeal.





It
is trite that in considering applications for condonation of failure
to comply with the Rules of the Court, especially where
time limits
are imposed, as
in
casu
, the Court
weighs, among others, the following factors –





(i) the
degree of non-compliance;


(ii) the
explanation for it;


(iii) the
importance of the case;


(iv) the
prospects of success;



(v) the respondent’s interest
in the finality of his judgment;


(vi) the
convenience of the Court; and


(vii) the
avoidance of unnecessary delay in the administration of justice.






See
Herbstein & van Winsen’s
The
Civil Practice of the Supreme Court of South Africa

4 ed at p 891.





Insofar
as the degree of non-compliance with rule 34 and the explanation
for it are concerned, Mr 
Mantsebo,
counsel for the applicant and the deponent to its affidavit, asserts
simply that he had omitted to furnish the Registrar with the
costs of
the preparation of the record, or a letter of undertaking to pay the
sum concerned, “through an oversight”.





In
argument Mr 
Mantsebo
sought to place the blame for his default on the Registrar, arguing
that the latter should have taken the initiative in seeking the
relevant costs from him.





There
is no merit in this argument, given that the rule in question places
the obligation to tender the costs concerned, or make
the written
undertaking to pay, on the appellant. In addition to this, I found
the explanation that the default was occasioned
by an “oversight”
on the part of the legal practitioners, to be manifestly inadequate.
One may excuse this type of oversight
in the case of a junior and
inexperienced legal practitioner, not one of Mr 
Mantsebo’s
experience.





However,
inadequate though the explanation for the default is, the default
itself was not, in my view, so serious as, on its own,
to warrant a
dismissal of the application.





The
default and the inadequate explanation for it have to be considered
together with the other factors listed above. In particular,
the
Court must consider whether or not the applicant has good prospects
of success on appeal.





To
do this, it is necessary to set out, in brief, the background to the
dispute.





The
first respondent subdivided his farm and entered into an agreement
with the applicant to sell a portion thereof to it. The agreement
was entered into prior to the first respondent being granted
authority to subdivide his farm in terms of s 39 of the
Regional,
Town and Country Planning Act [
Chapter 20:16].
That section, in peremptory terms, forbids the negotiation of such
agreements. Thereafter the applicant failed to meet the
deadline
given to it by the first respondent to sign the purchaser’s
declaration so that transfer could be effected. The first
respondent consequently cancelled the agreement and sold the property
to the second and third respondents, who then took transfer
of the
property.





In
dismissing the application, the learned trial judge relied on the
decision in
X-Trend-A-Home
(Private) Limited v Hoselaw Investments (Private) Limited

2000 (2) ZLR 343, in which McNALLY  JA considered the
effect of s 39 of the Regional, Town and Country Planning Act
and stated as follows:





“The
agreement with which we are concerned is clearly ‘an agreement for
the change of ownership’ of the unsubdivided portion of
a stand.
What else could it be for? Whether the change of ownership is to
take place on signing, or later on an agreed date,
or when a
suspensive condition is fulfilled is unimportant.
It
is the agreement itself which is prohibited

(my emphasis)





The
learned trial judge observed that even if she was wrong in finding
that the agreement between the first respondent and the applicant
was
invalid, she was, in any case, satisfied that the agreement was
properly cancelled by the first respondent. She also found
to be
unsustainable the applicant’s contention that the cancellation of
the agreement was invalid as it did not comply with s 8
of the
Contractual Penalties Act [
Chapter 8:04],
since the first respondent did not give thirty days’ notice for
cancellation. It was the learned trial judge’s finding that
as
the agreement was clearly a cash sale that Act did not apply.





In
respect to the second and third respondents, the learned trial judge
found they were clearly innocent purchasers who were unaware
of any
sale between the applicant and the first respondent and that, as
such, the applicant would have no basis for claiming the
property
from them. It is trite that, in the absence of
mala
fides
on his part, the
Court will not interfere with the rights of an innocent second
purchaser.





Having
considered the above, and the trial judge’s reasoning, which I
found to be sound, I was satisfied the applicant had no
prospect of
success on appeal.





This,
coupled with the inadequate explanation for the default in question,
left no room for any other decision but the dismissal of
the
application. Hence my dismissal of it.














Mantsebo
& Partners
,
applicant's legal practitioners


I
E G Musimbe & Partners
,
second and third respondent's legal practitioners