Court name
Supreme Court of Zimbabwe
Case number
SC 116 of 2004
Civil Application 125 of 2004

National Social Security Authority v Chipunza (25/04) (SC 116 of 2004, Civil Application 125 of 2004) [2005] ZWSC 116 (03 April 2005);

Law report citations
Media neutral citation
[2005] ZWSC 116













DISTRIBUTABLE
(118)


Judgment
No. SC 116/04


Civil
Application No. 125/04








NATIONAL
SOCIAL SECURITY AUTHORITY v DENFORD
CHIPUNZA








SUPREME
COURT OF ZIMBABWE


HARARE,
DECEMBER 8, 2004 & APRIL 4, 2005








Zhou,
for the applicant





O
Mushuma
, for the respondent





Before
ZIYAMBI  JA, in Chambers, in terms of Rule 31(7) of
the Rules of the Supreme Court






This
is an application for an extension of time within which to appeal.





Rule 31
of the Supreme Court Rules provides:






“(1) An application that leave
to appeal be granted or for an extension of time in which to appeal
shall be by notice of motion
signed by the applicant or his legal
representative and shall be accompanied by a copy of the judgment
against which it is sought to appeal.





(2) …





(3) An
application for extension of time in which to appeal shall have
attached to it a notice of appeal
containing the matters required
in terms of subrule (1) of rule 29 and an affidavit setting
out the reasons why the appeal
was not entered in time or leave to
appeal was not applied for in time. Counsel may set out any
relevant facts in a statement.
Where such application is in
relation to a matter in which leave to appeal is necessary, the
application shall, in addition, comply
with the requirements of
subrule (2).” (the underlining is mine)






Contrary
to subrule (1), a copy of the judgment was not filed with the
application. Nor was a notice of appeal attached to
the application
as required by subrule (3).





Counsel
for the applicant advised the Court that he was only “briefed
yesterday”. While accepting that there was non-compliance
with
the Rules, he urged the Court to condone the non-compliance and grant
the application. He submitted that there were prospects
of success
on appeal, in that the learned judge wrongly exercised his discretion
to entertain the matter on review when the application
was out of
time.







The main considerations usually
taken into account in determining applications of this nature are –








  • the degree of non-compliance;









  • the explanation for the delay;
    and









  • the prospects of success.







It
was submitted on behalf of the applicant that it only became aware on
25 March 2004, in a conversation with the respondent’s
legal
practitioners, that the judgment in this matter had been handed down
on 24 April 2003. An appeal was noted on 8 April
2004,
albeit without an application for condonation. In the
circumstances, so it was argued, the degree of non-compliance was low
and a satisfactory explanation had been given.





I
digress here to set out the background of this application. On
20 August 2004 the respondent (“Denford”) filed a Chamber
application in this Court, in which he sought the following relief:






“The appeal in case SC 125/04
is hereby struck out; and the respondent is ordered to pay the costs
of both the appeal and this
application on a higher scale.”






In
that application Denford alleged that judgment in his favour was
given by the High Court on 24 April 2003 (see HB 56/2003)
and that one year later, on 8 April 2004, a notice of appeal was
filed. It appeared ex facie the notice of appeal that
the appellant (the applicant in the present matter) was aware that
the appeal was out of time, as part
of the notice of appeal read:






“Take notice that the appellant
hereby appeals against the decision of the High Court dated 24 April
2003 in judgment No. HB 56/2003
but made available to the
appellant on 25 March 2004.”







Nevertheless, no application for
condonation of the failure to note the appeal timeously and for an
extension of time within which
to note an appeal was filed.






On 20 April 2004 Denford’s
legal practitioners wrote to the registrar of this Court, pointing
out that the appeal was out of
time. In a reply dated 7 May
2004, the registrar advised that a copy of the legal practitioner’s
letter of complaint had
been sent to the applicant’s legal
practitioners for their comments. Nothing further was heard of the
matter and on 13 July
2004 Denford’s legal practitioners wrote
to the registrar of this Court in the following terms:






“Your letter dated May 7,
2004 refers. We note that Messrs Atherstone & Cook, the
appellant’s legal practitioners, have
not done anything about the
application for condonation for late noting of the appeal. Are we
now entitled to treat this matter
as finalised in that there is no
appeal before the Supreme Court? There is need to finalise (this)
matter. This cannot go on
for ever.”









It
seems that Denford’s legal practitioners were advised by the
registrar of this Court to make an application to strike out the
appeal. This was on 3 August 2004.





It
was Denford’s allegation that he had not worked since his unlawful
dismissal in April 2002 and that, to his great prejudice,
the
applicant had refused to comply with the judgment which ordered the
reinstatement of Denford in his employment with the applicant.





At
the hearing before me in Chambers on 16 September 2004, it was
made clear to the legal practitioners concerned that there
was no
appeal pending before this Court, since ex facie the
notice of appeal it was apparent that the appeal was filed out of
time and no application for condonation and for an extension
of time
within which to appeal had been filed. The applicant was given
seven calendar days within which to file an application
for an
extension of time within which to appeal as well as a notice of
appeal, failing which Denford could execute his judgment.





Two
points need to be noted here. The first is that the requirement to
file a notice of appeal with an application for an extension
of time
within which to appeal is, in terms of Rule 31 of the Rules of
this Court, a mandatory requirement. The order of 16 September
2004, requiring a notice of appeal to be filed, served to reiterate
the need for the filing of the notice.





Secondly,
a person who has obtained judgment in his favour from the Labour
Court is entitled, where no notice of appeal has been
filed within
the prescribed time, to execute his judgment. He requires no leave
from this Court to do so.





Be
that as it may, the parties appeared before me and, having heard
them, it was decided to allow the applicant time within which
to file
its appeal if it so wished – since the applicant had shown some
desire to appeal by attempting to note an appeal within
two weeks of
the date on which it became aware that judgment had been delivered.





On
21 September 2004 the applicant filed the present application.
It did not comply with either subrule (1) or subrule (3)
of
rule 31 of the Rules of this Court, in that the judgment
appealed against did not accompany the application and the notice
of
appeal was not attached to the application. The failure to attach a
notice of appeal also constituted a failure to comply with
the order
of 16 September 2004.





The
registrar of this Court wrote to the applicant’s legal
practitioners on 5 October 2004 advising as follows:






“I refer to the application
for extension of time in which to appeal.





Part
‘C’ of the order granted does not appear to have been fully
complied with. Certificate of service of (the) application
for
extension of time in which to appeal has not been filed.”









Part ‘C’
of the order required a notice of appeal to be filed with the
application for an extension of time within which
to appeal.
Despite this reminder no notice of appeal was filed, although a
certificate of service of the application was filed
on 8 October
2004.





Counsel
for the applicant has said everything that could possibly be said on
its behalf and sought condonation of the many errors
in this
application. But unfortunately for the applicant:






“There is a limit beyond which
a litigant cannot escape the results 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
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.
(Cf Hepworths Ltd v Thornloe and Clarkson Ltd 1922 TPD 336;
Kingsborough Town Council v Thirlwell and Anor 1957 (4) SA 533
(N)).”









See Saloojee and Ano NNO v
Minister of Community Development
1965 (2) SA 135 (A) at 141 C-E;
Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd
1998 (2) ZLR 249 at 251.






The legal practitioner’s
conduct in this case exhibits a disdain for the Rules of this Court
bordering on an abuse of Court process.
See At The Ready
Wholesalers (Pvt) (Ltd) t/a Power Sales v Innocent Katsande and Ors

SC-7-03.







There is a constant flow of
applications for condonation of the non-compliance with the Rules of
this Court, often based on flimsy
and inane excuses. The
pronouncements issued by this Court requiring a diligent compliance
with the Rules of this Court appear
to fall on deaf ears. It must
be emphasised that the Rules of Court are enacted for the purpose of
regulating the conduct of matters
brought before the Court and that
condonation of failure to observe them is not automatic or there for
the asking. An applicant
must make out a good case for condonation
of his non-compliance with the Rules. Failure to do so is fatal to
his application.





In
this matter, not only is there no reasonable explanation given for
the failure to seek condonation before the appeal was noted,
but the
application is defective in that it fails to comply both with the
Rules of this Court and with an order of this Court.
The failure by
the applicant to attach to its application a copy of the judgment
appealed against renders it impossible to determine
the prospects of
success on appeal.





Accordingly
I am of the view that the applicant has established no basis for the
grant of the indulgence sought.





I
see no reason why costs should not be awarded on the higher scale.
When the application was placed before me, I indicated that
in view
of the defective application there was no compliance with my order of
16 September 2004 and that accordingly the application
could not
be entertained. However, the parties were given leave to appear
before me to argue the matter should the applicant persist
in a
hearing. The applicant did persist, resulting in the present
hearing.





In
the result, the application is dismissed with costs on the legal
practitioner and client scale.




















Atherstone & Cook,
applicant's legal practitioners


Majoko
& Majoko
, respondent's legal practitioners