Court name
Supreme Court of Zimbabwe
Case number
SC 54 of 2003
Civil Appeal 307 of 2002

Divine Homes (Pvt) Ltd. v Sheriff of Zimbabwe (07/02) (SC 54 of 2003, Civil Appeal 307 of 2002) [2004] ZWSC 54 (08 February 2004);

Law report citations
Media neutral citation
[2004] ZWSC 54













DISTRIBUTABLE
(45)


Judgment
No. SC 54/03


Civil
Appeal No. 307/02








DIVINE
HOMES (PRIVATE) LIMITED v


THE
SHERIFF OF ZIMBABWE








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & GWAUNZA JA


HARARE,
OCTOBER 13, 2003 & FEBRUARY 9, 2004








G
Chikumbirike
,
for the appellant





G
Mitha-
Valla,
for the respondent








GWAUNZA
JA: The appellant appeals against a judgment of the High Court in
terms of which its application for certain relief was
dismissed with
costs.





The
appellant charges that the learned trial judge concentrated on
matters pertaining to an earlier case between the parties, and
not
sufficiently on matters before her. For that reason the relief
sought by it in the court
a
quo
merits comment at
this stage.





The
appellant filed an urgent chamber application entitled
"Chamber
Application for Condonation of Failing to Observe Order of Court
dated 6 May 2002”.

This was in reference to an earlier provisional order of the same
court, in terms of which the appellant had to comply with certain
conditions, among them the filing of heads of argument, by certain
dates specified in the order. According to the order, failure
to
comply with any of the conditions outlined would oblige the
respondent to re-auction certain immovable property that was the
subject
matter of the dispute between the parties. The appellant
was interested in securing ownership of that property.





Despite
the heading of its application, the appellant attached to its
application a draft order phrased in these terms:






“That the
sale in execution proposed by the respondent on the 6
th
of September 2002 be and is hereby set aside until the determination
of the court application in case number 4015/02”.






Case No.
4015/02, it should be noted, was the case in which the appellant had
been ordered to satisfy certain conditions by given
dates, failing
which the consequences referred to would follow.






In compliance with that order,
and in the light of the appellant’s default, the respondent gave
notice of its intention to re-auction
the property in question on
6 September 2002. This is what prompted the urgent chamber
application by the appellant, which
was heard on the same date.






It
would appear that the appellant or, more specifically, its legal
representative, had come to the realisation that the re-auctioning
of
the property would proceed unless the appellant’s failure to comply
with the conditions in question was condoned by the court.
Although
the contradiction between the title of the application and the relief
sought through the draft order was not explained,
it can, in my view,
be safely assumed that while the appellant realised the need for
having its default condoned, it was more interested
in having the
impending re-auctioning of the property stopped. That this was the
primary concern of the appellant will become more
evident later when
the merits of the appellant’s appeal on the issue of condonation is
considered.







The learned
judge
a
quo
,
faced with the contradiction referred to, to varying degrees
addressed her mind to both the appellant’s concerns. She noted
that the relief seeking a stop to the proposed auction sale of the
property was the same relief the appellant had sought in case
No.
4015/2002. While not specifically mentioning the fact that the
appellant now sought condonation of its failure to comply with
certain conditions in the earlier order, the learned judge
a
quo

nevertheless noted that the explanation by the appellant’s legal
practitioner for failing to do so was inadequate. She reiterated
the fact that the order was by consent and that, according to the
relevant condition therein, which was phrased in peremptory terms,
the failure by the appellant to comply with any one of the conditions
would lead to the consequences already referred to. Hence
her
dismissal of the application.







My view is
that the contradiction between the relief sought by the appellant as
it appeared in the draft order, and the indication
that such
application was for condonation, was quite unnecessary. The
appellant was aware of the need to seek condonation. Indeed,
an
explanation for the failure to comply was given in the founding
affidavit. The effect of the condonation, had it been granted,
would
have been to put a stop to the proposed re-auctioning of the property
in question. The two prayers could properly have been
accommodated
in the same draft order, thereby negating the appellant’s
contention before this Court, that the learned judge
a
quo

had misdirected herself by focusing more on matters related to case
no. 4015/2002 and not enough on the issue of the condonation
sought.







Be that as it
may, I am satisfied the court
a
quo
dealt
sufficiently with both matters placed before it, and properly came to
a decision on them. What this Court has to determine
is the
correctness of that decision.







Before turning to that issue,
however, it is necessary that I dispose of a few preliminary matters
raised by the parties.







The first was
the appellant’s application for an amendment to its notice of
appeal, to the effect that the appellant was noting
an appeal against
the whole of the judgment delivered by the learned judge in the court
a quo.
This
application not having been opposed by the respondent, the Court
granted it.







The second
issue was another preliminary matter raised by the appellant, which
sought to have the respondent barred for failure to
file its heads of
argument within the times prescribed by the Rules of this Court.
Mr
Chikumbirike

for the appellant made reference to the document entitled “Sheriff’s
Submissions” signed for and on behalf of the Sheriff and
dated 8
October 2003. The document had been filed on 10 October 2003,
three days before the hearing of the appeal.







Ms Valla,
for the respondent, explained that she had only been briefed by the
respondent the previous day and that her instructions had been
to
argue the matter on the basis of the detailed document entitled “The
Sheriff’s Submissions”. She then made an application
for
condonation of the late filing of this document, which was to be
treated as the respondent’s heads of argument. She indicated
that
the document had been prepared without the respondent having had
sight of the appellant’s heads of argument, adding that she
had
only been able to obtain a copy of the appellant’s heads of
argument from the Court.







The
application was vigorously opposed by Mr
Chikumbirike.
At the end of argument on that matter we directed that the appeal
should proceed and that our determination on the application
would be
included in this judgment. I now proceed to consider the application.







Mr
Chikumbirike
contended that the application for the condonation was not presented
in writing nor was it in affidavit form, that no good and sufficient
explanation for not filing the heads in question had been tendered
and that, contrary to Ms
Valla’s
assertion, the appellant’s heads had been served timeously on the
respondent, as indicated by a signed acknowledgement to that
effect
from someone in the Sheriff’s Office.







Although
having the application in question in writing and in affidavit form,
would have been the ideal situation, the practice of
this Court has
never been to deny an application of this nature on this ground
alone. An applicant for condonation must satisfy
certain legal
requirements. As long as he is able to do so, even where the
application is made before the hearing of the merits
of an appeal,
insistence on a written application would only serve to unnecessarily
delay finalisation of the matter. This is a
circumstance that the
Court always strives to avoid.







I am not
persuaded that no good and sufficient explanation has been given for
the default. Ms
Valla
had been briefed to appear on behalf of the respondent only the day
before. Until then, the respondent was, for all intents and
purposes, a self-actor. In that capacity, the respondent had
prepared the document in question, which was titled “Sheriff’s
Submissions”. The Rules of this Court (Rule 43) place the
obligation of, and time limits for, the filing of heads of argument
only on those litigants represented by a legal practitioner.
Litigants who represent themselves are under no such obligation.
In
casu
,
had Ms
Valla
not appeared virtually at the last minute to represent the
respondent, and had the respondent thereby appeared to represent
himself
in person, the application to bar him would not have been
made. The respondent’s case would then have been argued on the
basis
of the same document that Ms
Valla
sought
to argue the matter. That being the case, I cannot conceive of any
prejudice being suffered by the appellant by virtue of
the person of
the respondent having been substituted by that of Ms
Valla.







In my view,
the circumstances surrounding the filing of the document in question,
and the appearance of Ms
Valla
to argue the respondent’s case on the basis of that document,
constitute a good explanation for the default in question.







Mr
Chikumbirike
argued finally that, contrary to Ms
Valla’s
assertions, the appellant’s heads had been served on the respondent
on time. This argument, I find, would have been relevant
had the
respondent been legally represented at the time the heads in question
were received. It is not in dispute that such was
not the case.
Since a self-actor, whether served with his opponent’s heads of
argument or not, is not in terms of Rule 43 obliged
to thereafter
file his heads within the time limits therein imposed, or at all, the
issue of such service becomes irrelevant.






All
in all, I am satisfied the respondent has proved a case for the
condonation sought, and such application is therefore granted.






The third
issue that I will deal with is another application by the appellant -
albeit made well into the hearing and not at the beginning
thereof -
for a further amendment to the notice of appeal. The amendment
sought was to the effect that the court
a
quo

misdirected itself in finding that the provisional order under case
HC 4015/02, in terms of which the appellant was put on certain
terms,
was by consent when, in fact, it was not.







The
application was opposed by the respondent. We dismissed it and
indicated the reasons would follow. They are given below -







Until the
application was made, well into Mr
Chikumbirike’s
argument, no indication had been given by him that he disputed the
finding by the learned judge
a
quo

that such order had been made by consent. To the contrary, the
impression given to the Court throughout Mr
Chikumbirike’s
lengthy argument and as he addressed certain questions put to him by
the Court, was that all concerned accepted that such order had
been
given by consent.



The application therefore came as
something of a surprise.






A
perusal of the order in question, made by OMERJEE J, does not
indicate that such order was by consent of the parties.

However, that matter must have been brought to the attention of the
court
a
quo
,
hence the learned trial judge’s notation in her judgment:





“At
the hearing before me, I was advised that the order by OMERJEE J had
been granted by consent of the parties”.







The learned
trial judge did not, in the same judgment, suggest that this
assertion had been disputed by the appellant, through Mr
Chikumbirike,
who was present at the hearing. That the appellant did not at the
first instance give as one of its grounds of appeal this alleged
misdirection by the court
a
quo
further
reinforces the finding by the court
a
quo
that
the order in question was by consent.







The matter is,
however, put beyond any doubt when regard is had to the certificate
of urgency filed by Mr
Chikumbirike
himself in support of the urgent chamber application in the court
a
quo
.
The first reason given for the urgency of that matter reads as
follows:






“The
property, (the) subject matter of this application, is to be sold by
public auction on the 6
th
of September 2002. If the application is not heard urgently and a
decision made prior to that date, it means that the property
would
have been disposed off (
sic)
without the applicant having put across the facts of its case as was
envisaged when the provisional order was granted
by
consent

(my emphasis)”.







It is evident
that at the time he filed the urgent chamber application in the court
below, Mr
Chikumbirike
fully accepted that the order by OMERJEE J had been granted by
consent. Given his categoric declaration to that effect in the
certificate
of urgency, Mr
Chikumbirike’s
sudden turn around and assertion that the order had not been granted
by consent clearly lacked credence.






Taking
all these factors into account, the Court found no merit in the
application, hence its dismissal of it.





This
matter will therefore be determined on the basis that the order by
OMERJEE J, which put the appellant on certain terms, was granted
by
consent.






I will now
turn to the merits of the appeal, and start with the background to
the dispute. This is succinctly set out in the judgment
of the
court
a
quo

as follows.







A company
called Solid Structures (Private) Limited borrowed money from various
institutions to purchase certain immovable property
called Lot 399
Highlands Estate of Welmoed in the district of Harare, measuring
18.1743 hectares. The company had, in pursuance
of a permit issued
by the Municipality of Harare, subdivided the property and sold some
of the stands to various purchasers. The
said company then failed
to pay the amounts which it owed the various financial institutions.
At the instance of such institutions,
which had obtained judgment
against Solid Structures, the property in question was attached and
sold in execution. The purchaser
subsequently failed to effect
payment in respect of the purchase price, resulting in the
cancellation of the sale. The property
was thereafter sold to the
appellant by private treaty. The appellant having failed to pay the
purchase price, the Sheriff cancelled
the sale and sought to
re-auction the property. The appellant objected, resulting in the
matter coming before OMERJEE J on 6 May
2002. By consent,
OMERJEE J made the following order:






“It is Ordered:


1. That
subject to paragraph 2 hereof:



(a) The Respondent’s sale of
Lot 399 Highlands Estate of Welmoed be, and is, hereby suspended.





(b) The
Applicant shall serve the chamber application in the above matter on
the four occupants of Lot 399 Highlands Estate of Welmoed.






(c) The
applicant shall by the 10
th
May 2002 file and serve on the Respondent, the legal practitioners of
record for Standard Chartered Bank Zimbabwe Limited and Stanbic
Bank
Zimbabwe Limited and the four occupants any papers which it may wish
to file in supplement of the founding affidavit in the
above matter.







(d) Standard
Chartered Bank Zimbabwe Limited and Stanbic Bank Zimbabwe Limited
shall by the 21
st
May 2002 file and serve on the applicant and the respondent any
opposition to the application in the above matter.







(e) The
applicant shall by the 28
th
May 2002 file and serve on the respondent and the legal practitioners
for Standard Chartered Bank Zimbabwe Limited and Stanbic Bank
Zimbabwe Limited any reply to the opposition filed by Standard
Chartered Bank Zimbabwe and Stanbic Bank Zimbabwe Limited.







(f) The
applicant shall by the 4
th
June file and serve on the respondent and on the legal practitioners
for Standard Chartered Bank Zimbabwe Limited and Stanbic Bank
Zimbabwe Limited its heads of argument.







(g) The legal
practitioners for Standard Chartered Bank Zimbabwe Limited and
Stanbic Bank Zimbabwe Limited shall by the 14
th
June 2002 file and serve on the Applicant and the Respondent their
heads of argument.







2. That should the applicant fail
to comply with any one of the time limits given in paragraph 1
hereof, the respondent shall re-auction
Lot 399 Highlands Estate of
Welmoed.







3. That the costs of the chamber
application shall be costs in the cause.”





On
30 July 2002 the respondent addressed a letter to the appellant’s
legal practitioners of record, drawing their attention to
the fact
that since clauses 1(b), (e) and (f) of the provisional order had not
been complied with, instructions had been given to
the auctioneers to
re-auction the property.





Nothing
further seems to have been done by the applicant until 6 September
2002, when the urgent chamber application in question
was heard in
the court
a quo.
The appellant had, apparently, received notice that the property
would be re-auctioned on that day.






The court a
quo
having dismissed
that application as already indicated, the appellant now appeals to
this Court.






I
will deal with each of the grounds of appeal cited.






The appellant charges that the
learned trial judge misdirected herself in dismissing the application
“which was for
condonation for a minor, insignificant non-compliance with a court
order”
.
The appellant further avers that a good and valid explanation for
the non-observance had been given. Further, that such
non-observance
was “a mere inadvertence” on the part of the
appellant’s legal practitioners, for which the appellant was not to
blame.







It should be noted here that,
having denied failing to comply with clauses 1(b) and (e) of the
provisional order,
Mr
Chikumbirike
made a
qualified concession that clause 1(f) had not been complied with.
The first ground of appeal is therefore concerned only
with the
appellant’s failure to comply with clause 1(f).







In support of the contention that
trivialises the non-observance of this clause
Mr
Chikumbirike
, who
deposed to the founding affidavit on behalf of the appellant, averred
that the heads of argument in question had duly and timeously
been
filed with the court on the afternoon of 4 June 2002, the date by
which the court had ordered they should be served on the other
parties.
Mr
Chikumbirike
avers
further (and in this he is supported by the messenger in question)
that the messenger who had filed the papers with the court
had, due
to the lateness of the hour and another assignment, failed to effect
service on the other parties. The same messenger
had then been
taken ill and had only come back to work on 6 June, on which date he
had “completely overlooked” the fact that
the papers had not been
served on the parties concerned. The realisation that the papers
had not so been served had then only been
made on 21 June 2003, after
which they had then been served.







The respondent disputes the
appellant’s assertion that the default in question was minor or
insignificant. He contends as follows
in paragraph 2:7 of his heads
of argument:







“… The
terms and conditions of the order by his Lordship Mr Justice OMERJEE
were stringent with definite consequences flowing from any
default.
This alone should have put the appellant and its legal practitioners
on guard.

To the contrary and on its own showing, (the) appellant and its legal
practitioners did not implement a detailed monitoring system
to
ensure that the terms of the order were adhered to. The legal
practitioner issued no instructions to Rinomhota regarding urgency
and need to adhere to the terms of the order. He was content to
leave the matter of such critical importance in the hands of a
messenger who in any event was not fully briefed.”











While also taking issue with the
appellant’s dismissal of the default as minor and insignificant,
the respondent asserts, correctly
in my view, that,
in
casu
, it was the
consequence of such delay, especially its impact on the finality of
the litigation, that had to be considered.







I find merit in the
respondent’s contention. The evidence before this Court shows this
matter has dragged on for a considerable
time. The property in
question has several times been put on the auction block, with
finalisation of the sale being put off for
one reason or another.
In the process the relevant creditors have been frustrated in their
effort to recover what is owed to them.
The order of OMERJEE J, by
putting the appellant on strict terms, was an attempt to speed up
finalisation of the matter. The appellant
was represented at that
hearing by
Mr
Chikumbirike
, who
could not have failed to appreciate the importance of ensuring
progress in the matter.




The
order in question put much of the responsibility of ensuring such
progress on the appellant. Yet there is little to show that
the
appellant took this responsibility seriously. Quite to the
contrary. Paragraph (b) of the order required the appellant to
serve
the chamber application in question on the four occupants of the
property in question. This was not done and the explanation
given by
Mr Chikumbirike
for not having done so was, at best, vague and evasive. While it is
true that the filing of an answering affidavit is not mandatory,
the
significance of the appellant not having done so
in
casu
is that such
failure should have given the appellant more time to attend to the
crucial issue of the heads of argument. As discussed
above these
were filed late with the court on, and in the event were not served
by, the date stipulated in the order of OMERJEE J.







When considered together, these
defaults on the part of the appellant indicate that the appellant did
absolutely nothing between 6
May 2002 when the order was made, and 4
June 2002, when the heads of argument in question were rushed to the
High Court at the last
minute, and filed. It is significant that
clause 1(f) of the provisional order in question obliged the
appellant to
serve
the heads of argument on the other parties, not just to file them
with the court.







The appellant therefore had a
full month during which it could have prepared, filed and served the
heads of argument in question.
No explanation has been tendered as
to why the heads of argument had not been filed earlier with the
court, to ensure timeous service
on the parties concerned. Given
the fact that time was of the essence insofar as the service of the
documents was concerned, a
circumstance that the appellant fully
appreciated, the respondent is correct in its assertion that the
former has failed to show
that all necessary steps were taken to
ensure the service was effected timeously.







On the evidence before the
Court, this lamentable lack of diligence on the part of the appellant
extended to the matter of the filing
of the application for
condonation itself. According to
Mr
Chikumbirike
, the
realisation that the heads of argument in question had not been
served as intended on 4 June was made on 21 June 2002, yet
all that
the appellant did was to proceed to serve the papers, as if the
default itself and its consequence were of no significance.
Rather
than file the application for condonation then, the appellant sat
back and did nothing until notification of the sale of
the property,
intended for 6 September 2002, was received, upon which it was moved
to act very quickly and file an urgent chamber
application with the
court
a quo.





Thus, according to the
respondent’s computation, which is not disputed, the application
for condonation was filed eighty-eight
days after the breach in
question was committed, sixty-eight days after the appellant and its
legal practitioner became aware of
the breach and thirty-two days
after the Sheriff had advised the appellant and its legal
practitioners of the breach and his intention
to proceed with the
re-auctioning of the property. These are not insignificant delays,
and a very good explanation for them was
clearly called for. Yet the
application for condonation contained no explanation whatsoever for
the delay in filing it.




When
all this is taken together with the issue referred to at the
beginning of this judgment, that the draft order attached to the
application sought a suspension of the sale of the property rather
than the condonation in question, the inference is inescapable
that
the appellant was concerned more with stopping the sale than seeking
the condonation in question.







This Court has in the past
condemned much shorter delays than those obtaining
in
casu
, and refused to
grant the condonation sought. (See
Viking
Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited

1998 (2) ZLR 249, where the Court set out the principles applicable
in the determination of applications for condonation.







I am indebted to the respondent
who has, in his heads of argument, cited a number of authorities for
the proposition that condonation
of the non-observance of the Rules
is by no means a mere formality and that it is for the appellant to
satisfy the Court that there
is sufficient cause to excuse him from
compliance. (See, for instance
Kodzwa
v Secretary for Health & Another
1999
(1) ZLR 313 (S) at 315). The same proposition applies equally to
non-observance of a court order, particularly where, as
in
casu
, the appellant
had consented to it.







The length of the delay and the
explanation given for it are relevant factors in the determination of
whether or not to grant condonation.
The appellant has failed to
satisfactorily explain the former and has lamentably fallen short on
the latter. This, added to the
seriousness of the default itself,
takes away, in my view, any protection the appellant might have had
from the fact that the default
itself was of the making of its legal
practitioner, and not itself. Quite clearly, the legal
practitioner, who was, nevertheless,
the appellant’s agent, did his
client a disservice.







In the light of the foregoing,
there is little doubt that the appellant failed to prove a case for
the condonation sought. To
that extent the finding of the learned
judge
a quo
on this point cannot be faulted.







The second ground of appeal
given by the appellant is not clearly worded and therefore difficult
to understand. The third ground
builds on the second one. It
would appear, however, that its thrust is that the judgment of the
court
a quo
resulted in the auctioning of property that contained dwelling
houses, a circumstance that necessitated mandatory compliance with
Rule 348A.







Given the nature of the
application in the court
a
quo,
the issue of
compliance with Rule 348A of the High Court Rules, whatever its
merits or demerits, could only have been relevant in
regard to the
appellant’s prospects of success in the main action. There is
nothing in the evidence before the Court to suggest
that this matter
was raised before the court
a
quo
. The learned
trial judge based her decision to dismiss the application on the
insufficiency of the explanation for the default
in question. I have
already determined that her decision in that respect was
unassailable.







In
any event, Rule 348A is concerned with applications for the
postponement or suspension of a sale in execution of a dwelling house
occupied by a judgment debtor.

The appellant, as the judgment debtor, was not in occupation of the
houses in point. Additionally, as the appellant has been
at pains
to explain, the application in the court
a
quo
was effectively
one for condonation of a default and not suspension of a sale in
execution. It was not an application in terms
of Rule 348A. Rule
348A clearly gives the judge hearing an application under that Rule,
the discretion to postpone or suspend the
sale or to evict any
occupant therein. The learned judge
a
quo
could not
therefore, properly have made an order in terms of Rule 348A, even
though it is phrased in peremptory terms.







In the result, I am satisfied
there is no merit in the appeal. The following order is accordingly
made;






“The
appeal is dismissed with costs”.















SANDURA
JA: I agree.














CHEDA
JA: I agree.
















Chikumbirike & Associates,
appellant’s legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondent's legal practitioners