Court name
Supreme Court of Zimbabwe
Case number
SC 28 of 2003
Civ. Application 139 of 2003

Apostolic Faith Mission in Zimbabwe and Others v Murefu (39/03) (SC 28 of 2003, Civ. Application 139 of 2003) [2003] ZWSC 28 (09 October 2003);

Law report citations
Media neutral citation
[2003] ZWSC 28



















DISTRIBUTABLE
(19)


Judgment
No. SC 28/03


Civ.
Application No. 139/03





(1)
APOSTOLIC FAITH MISSION IN ZIMBABWE


(2)
ENOS MANYIKA (3) KNOWLEDGE MUNJERI





v
TITUS INNOCENT MUREFU








SUPREME
COURT OF ZIMBABWE


HARARE,
SEPTEMBER 12 & OCTOBER 10, 2003








J
M Mafusire
, for the
applicants





W
Mutezo
, for the
respondent








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









This is an application for the
reinstatement of an appeal and condonation of the late filing with
the registrar of the High Court
the letter of undertaking required in
terms of rule 34(1) of the Supreme Court Rules.






Rule 34 of the Supreme
Court Rules







Rule 34 subrules (1) and (5)
provide as follows:





“(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. …





(5) 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.”









Background









It is necessary to state the
background of the application.







The respondent was at all
material times a pastor in the full-time employ of the first
applicant, to whom I shall refer hereinafter
as “the Church”.
The second applicant is the immediate past national president and
chairman of the Church. The third applicant
is a pastor of the
church. He now occupies the post of overseer for the Harare East
Province following an election held in February
2003, which election
has been challenged by the respondent.







Following allegations of
misconduct brought against the respondent by the Church and the
second applicant, the respondent was charged
with various
contraventions of the constitution of the Church.







On 5 December 2002 the
chairman of the court appointed by the Apostolic Council of the
Church wrote to the respondent, advising
that he had been acquitted
of all charges against him. Notwithstanding the acquittal, the
Church and the second applicant sought
to impose on the respondent a
discipline by way of punishment. The respondent was of the view
that the imposition of this discipline
was outside the procedure
prescribed by the constitution of the Church and filed an application
for review in the High Court under
case number HC 61/03. The
applicants, represented by their legal practitioner in this
application, did not file opposing papers
on due date and an
application for condonation and an extension of time in which to file
opposing papers is still pending.







On 13 January 2003 the High
Court issued the following order at the instance of the respondent
against the applicants:






“TERMS OF FINAL ORDER SOUGHT







That you show cause to this
Honourable Court why a final order should not be made in the
following terms –







1. THAT it is hereby ordered that
the applicant is to continue carrying out all the duties of his
employment and elected offices,
and receiving full salary and
benefits, including the use of a Mazda B2500 twin cab,
registration number 757-768K, issued to
him in terms of his contract
of employment with the first respondent, until the determination of
an application for review filed
by the applicant under case No.
HC 61/2003 to challenge the three months discipline imposed on
him by the first respondent’s
Council.







2. THAT pending the finalisation
of the said review, the applicant shall be undisturbed in the
exercise of the said duties of his
employment and elected offices
which include the right to minister at his Borrowdale Assembly, the
right to supervise the work of
all pastors and workers under his
jurisdiction in his capacity as overseer of the Harare Province, the
right to call for meetings
in his capacity as overseer of the Harare
Province, the right to exercise full powers in his capacity as the
national general secretary,
and generally the right to enjoy all
benefits and to exercise all responsibilities of the offices of
pastor for the Borrowdale Church,
chairman and overseer for the
Harare Province and national general secretary for Zimbabwe.







3. THAT the second and third
respondents be and are hereby personally and specifically interdicted
from interfering with the applicant
in the exercise of his duties
aforesaid and the enjoyment of the benefits of his offices aforesaid
in any way pending the finalisation
of the aforesaid review, whether
such interference be done by the second and third respondents
directly or is indirectly done through
some other persons.







4. THAT any interference by the
second and third respondents with the applicant’s exercise of his
duties aforesaid and/or the enjoyment
of the aforesaid benefits of
his said offices shall constitute a contempt of Court.







5. THAT the respondents pay the
costs of this application only in the event that they oppose and lose
this application.







INTERIM RELIEF GRANTED







6. THAT pending the confirmation
or discharge of this order, a temporary order be and is hereby made,
binding the respondents in terms
of paras 1, 2, 3, 4 and 5 of the
final order sought and such temporary order shall operate as if it
were a final order pending its
confirmation or discharge.







SERVICE OF THE PROVISIONAL
ORDER







7. THAT leave be and is hereby
granted to the applicant to serve this order through his legal
practitioners.”










Elections for the position of
overseer were held on 22 February 2003. The respondent, being
the sitting overseer, and the third
applicant were the candidates for
the election. However, while the election was in progress the
second applicant intervened and
disqualified the respondent from
running for the election on the ground that, having served a
discipline by way of punishment, the
respondent was ineligible to
stand. The third applicant was therefore confirmed as the new
overseer. This disqualification effectively
eliminated the
respondent from the race for the elections for national
president/chairman of the Church, to be held on or about 15 May
2003.







The respondent viewed his
disqualification as being contrary to the terms of the provisional
order issued by the High Court and approached
that court for redress
on a certificate of urgency. An order declaring the applicants to
be in contempt of the court order as well
as an order,
inter
alia
, setting aside
the elections for overseer held on 22 February 2003 was sought.
The application was successful, save that the
order for contempt of
court was not granted. The order issued by the High Court on 15 May
2003 provided as follows:






“PROVISIONAL ORDER



TERMS OF ORDER MADE





THAT
you show cause to this Honourable Court why a final order should not
be made in the following terms –






1. THAT the election held on
22 February 2003, in which the third respondent was elected
overseer for the Harare East Province,
be and is hereby set aside and
the applicant is to continue in that position, enjoying the full
salary and benefits of that office,
until a proper election is held
for the position of overseer Harare East Province and any
disqualification of the applicant to stand
for the said election
shall nullify the said election.






2. THAT
the first and second respondents are hereby ordered to hold a fresh
election, in which the applicant shall be allowed to stand,
to fill
in the post of overseer Harare East Province.





3. THAT
the applicant shall be allowed to stand for the election of national
president/chairman, notwithstanding that he was not allowed
to stand
for the position of overseer and any disqualification of the
applicant to stand for the said election shall nullify the
said
election.





4. THAT the
first and second respondents are specifically ordered to ensure that
the applicant is allowed to stand for both the overseer
Harare East
Province election and the national president/chairman election and
any attempt by them either directly or indirectly
to disallow the
applicant from standing in the said elections shall constitute
contempt of court.





5. THAT
the second respondent shall pay the costs of this application on a
legal practitioner and client scale.





INTERIM
RELIEF GRANTED





6. THAT
pending the holding of a fresh election for the position of overseer
Harare East Province the applicant is hereby declared
the present
overseer and shall be paid the full salary and benefits of the
office.





7. THAT
the applicant shall be allowed to stand for the election of overseer
Harare East Province and for the election of national
president/chairman and any disqualification of the applicant from
standing for any of the said offices shall disqualify [nullify]
the
respective election.





8. THAT
the first and second respondents are specifically ordered to ensure
that the applicant is allowed to stand for the election
of overseer
Harare East Province and for the election of national
president/chairman and any attempt by them to either directly or
indirectly disallow the applicant from standing for any of the said
offices shall constitute contempt of court.





SERVICE
OF THE PROVISIONAL ORDER





9. THAT,
without ousting the usual powers of the Deputy Sheriff, leave be and
is hereby granted to the applicant to serve this order
through his
legal practitioners.”







Notwithstanding this order, the
elections for the post of national president/chairman took place on
16 May 2003 and the respondent
was not allowed to stand.
According to the applicants, they were dismayed at the contents of
the order which they received on 16 May
2003. They therefore
instructed their legal practitioner to note an appeal against it.
The legal practitioner confirmed by telephone
that an appeal had been
noted and the order thereby suspended. The elections proceeded as
scheduled and the respondent did not
stand. Nothing further was
heard of the appeal until 18 June 2003 when, according to the
applicants, they:






“…
learnt that the respondent’s
legal practitioner was taking the point that the appeal had lapsed
for want of compliance with the
provisions of the Rules of this
Honourable Court relating to the costs of the record of appeal”.






It
is this appeal which is the subject of the present application.





The
application





The
application was filed on 25 June 2003, more than a month after
the appeal had lapsed. No attempt was made by the applicants
to
explain why the application was not filed earlier. The date on
which the legal practitioner first realised that the appeal had
lapsed is not given. There is a growing tendency among legal
practitioners to regard the application for condonation of failure
to
comply with the Rules of this Court as a mere formality. In the
words of STEYN CJ in
Saloojee
and Anor v Minister of Community Development

1965 (2) SA 135 at 138E:






“It
is necessary once again to emphasise, as was done in
Meintjies
v H.D. Combrinck (Edms) Bpk
,
1961 (1) SA 262 (AD) at p 264, that condonation of the
non-observance of the Rules of this Court is by no means a mere
formality.
It is for the applicant to satisfy this Court that there
is sufficient cause for excusing him from compliance, and the fact
that
the respondent has no objection, although not irrelevant, is by
no means an overriding consideration.”







The applicants averred that the
relief aforementioned was sought:





“… on
the basis that the failure to file the letter of undertaking was not
a result of any wilful default, negligence, recklessness or
wanton
disregard of procedure or an indifference to the outcome of the
matter but was purely a result of procrastination on the part
of our
legal practitioner whose affidavit is attached hereto.”







The legal practitioner averred in
his affidavit that:






“4. When I filed the appeal, I
was quite conscious of the provisions of Rule 34(1) of the Rules
of this Honourable Court, having
relied on it myself on numerous
other occasions during my seventeen years in practice.






5. However,
as will be obvious from the pleadings in HC 2488/03, the appeal
was noted on an urgent basis. Thereafter my own
file of papers
never left my desk. I intended to submit the undertaking.
Unfortunately, I never got down to doing it due to a
somewhat
abnormal load of work at that time.”






In
paras 8 and 9 he said:






“8. Eventually, when I got down
to drafting the undertaking, the time to submit it had lapsed
although I did not immediately notice
it.






9. Naturally,
I feel contrite and penitent over what happened. It was never my
intention to deliberately flout procedure. I was
quite conscious of
the importance of the matter to the parties as the dispute between
them was threatening to wreck them apart.
I respectfully seek
condonation so that the substantive issues may properly be determined
on the merits.”







The application is opposed by the
respondent on the grounds,
inter
alia
, that the conduct
of the legal practitioner amounted to a reckless disregard of the
Rules of Court and that in any event there are
no prospects of
success on appeal.






The conduct of the legal
practitioner






Mr Mafusire,
for the applicants, submitted that the appeal had lapsed solely
because of a failure by him to file the required undertaking within
five days of noting the appeal. This, he submitted, was
procrastination on his part and was not the fault of the applicants.







The conduct of the legal
practitioner is difficult to comprehend. Procrastination is
different from inadvertence. It involves
putting off what one knows
one has to do. The legal practitioner was at all times aware of his
responsibility in terms of the Rules
but kept on postponing it. I
can find no other way to describe his conduct save to say that he
acted in reckless disregard of the
Rules by constantly putting off
what he knew was required to be done in terms of thereof. A prudent
legal practitioner would attach
the undertaking to the notice of
appeal or, at the very least, diarise the matter to ensure that the
undertaking was filed in time.
If the prosecution of the appeal
was, in the legal practitioner’s view, an urgent matter, one
wonders why he did not file the
undertaking at the same time as the
notice of appeal.







It seems to me that his conduct
lends substance to the submission by Mr 
Mutezo,
for the respondent, that the notice of appeal was filed with the sole
purpose of suspending the court order so that the elections
could
proceed without the participation of the respondent. Thereafter,
there was no need to file the letter of undertaking as the
object of
noting the appeal had been achieved. Such conduct, in my view,
amounts to an abuse of court process.







Courts are generally loathe to,
so to speak, visit the sins of legal practitioners on their clients
who are not themselves to blame
for the default. In the present
matter, it is debatable whether any fault is to be attached to the
applicants. However, that
aside, there is a limit beyond which a
client cannot escape the consequences of the conduct of his legal
practitioner and it seems
to me that this limit has been exceeded in
casu.
See
Saloojee and
Another NN.O v Minister of Community Development supra
,
where, at 141 C-E STEYN CJ remarked as follows:


“There
is a limit beyond which a litigant cannot escape the result of his
attorney’s lack of diligence or the insufficiency of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the Rules of this Court.
Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. In fact this
Court has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to a
condonation of a failure to comply with a Rule of this Court, the
litigant should be absolved from the normal
consequences of such a
relationship, no matter what the circumstances of the failure are.”






I
respectfully associate myself with the above remarks.






The prospects of success







The applicants argue that there
are prospects of success on appeal. In a case of this nature,
strong prospects of success on appeal
might be a decisive factor in
an applicant’s favour, but a reading of the grounds of appeal does
not support this submission.
Two of the grounds of appeal relate to
the exercise by the learned judge of her discretion to treat the
application as urgent.
No allegation of an improper exercise of her
discretion has been made which would justify interference by the
Supreme Court with
the learned judge’s decision in this matter.







The third ground of appeal is
that no clear right had been established nor was any apprehension of
irreparable harm proved. It is
common cause that the respondent had
an order of court in his favour. He alleged that his rights in
terms of the order had been
breached and were likely to be further
breached by the applicants. There is no question that the breach of
these rights would cause
irreparable harm to him.







The fourth ground of appeal was
that the learned judge had failed to appreciate that the respondent
had abused the court process by
bringing frivolous applications, the
sole motive of which was to bring paralysis to the operations of the
Church. No evidence was
placed before me of these so called
frivolous applications. What was placed before me was a number of
court orders in favour of
the respondent which, so the respondent
averred, were disobeyed by the applicants to his detriment.







Moreover, if the applicants were
concerned about what they term the paralysis of the operations of the
Church it seems to me that
they would have been eager to have the
review matter determined. Instead they filed no opposing papers and
I am advised that an
application for condonation of their failure to
do so, as well as an application for an extension of the time within
which to file
opposing papers, is still pending before the High
Court. The conclusion is unavoidable that the applicants and/or
their legal practitioner
are dragging their feet in order to delay
the conclusion of the review matter.






Conclusion







In the result, I am satisfied
that there is little or no prospect of the appeal succeeding. The
applicants have, therefore, shown
no cause as to why their
non-compliance with the Rules should be condoned and the appeal
reinstated.






For the above reasons, the
application is dismissed with costs.















Scanlen &
Holderness
,
applicants’ legal practitioners


Mutezo
& Partners
,
respondent's legal practitioners