Court name
Supreme Court of Zimbabwe
Case number
SC 134 of 2004
Civil Application 340 of 2004

Musanhu v Nyoni and Another (40/04) (SC 134 of 2004, Civil Application 340 of 2004) [2005] ZWSC 134 (03 April 2005);

Law report citations
Media neutral citation
[2005] ZWSC 134






















Judgment
No. SC. 134/04


Civil
Application No. 340/04








SIMON
MUSANHU v





(1)
MARIA NYONI (2) THE REGISTRAR OF
DEEDS








SUPREME
COURT OF ZIMBABWE


HARARE,
NOVEMBER 26, 2004 & APRIL 4, 2005








J
Samukange
, for the applicant





G V Mamvura,
for the first respondent





No
appearance for the second respondent








Before:
ZIYAMBI  JA, in Chambers, in terms of Rule 31


of
the Supreme Court Rules






This
is an application for condonation of the failure to note an appeal
timeously and for an extension of time in which to appeal.
The
application is strenuously opposed by the first respondent.







The judgment sought to be
appealed against was delivered on 22 September 2004 and noted by
Mrs Harvey of the firm of legal
practitioners representing the
applicant. On the same date, so the applicant averred, he gave
instructions to Mrs Harvey to
appeal against the judgment.






On 5 November 2004 the
applicant went to his legal practitioners’ offices to check on the
progress of the appeal, only to learn
that the notice of appeal had
not been filed with the Supreme Court “despite the fact that it had
been prepared by 9 October
2004”. (A copy of the notice of
appeal, bearing the date 9 October 2004 and signed by Mrs Harvey
was annexed to the
founding affidavit).






Upon
querying why his instructions had not been carried out,
Mr Samukange’s secretary apologised to him, stating that she
had
overlooked the matter as she was extremely busy. Also annexed
to the founding affidavit was an affidavit by Farai Marova,
Mr Samukange’s secretary, who averred as follows:






“3. … I typed the notice of
appeal on the 9th October 2004 with the intention of
filing it within the period stipulated by the Supreme Court Rules.
Mrs Harvey, who
was then acting on behalf of Mr Samukange
in this particular matter, had specifically instructed me to ensure
that the appeal
is (sic) filed on or before the 11th October
2004. I, however, overlooked this issue as I was under a lot of
pressure. This resulted in me failing to give our
messenger the
notices of appeal for filing with the Supreme Court.







4. I only realised this when the
applicant came to our offices on the 5th November
2004 to check on the progress of the appeal.”






The
respondent opposes this application on the grounds that not only was
the applicant’s legal practitioner in court on the date
of the
judgment (22 September 2004), but on 19 October 2004, the
time limit for appealing having expired, a copy of the
judgment was
served on the applicant by the Deputy Sheriff. That fact should
have alerted the applicant to the fact that his appeal
had not been
noted.





On
8 November 2004 the respondent’s legal practitioners wrote to
the applicant’s legal practitioners, requesting payment
of costs,
which had been awarded by the High Court on an attorney and client
scale. The costs were said to amount to $7 505 818.60.

It was that letter, so the respondent averred, which prompted the
filing of this application with the Supreme Court on 9 November
2004.





The
factors usually considered in applications of this nature are inter
alia
:-







1. The extent of the delay;







2. The reasonableness of the
explanation for the delay (whether the applicant himself was
responsible);







3. The prospects of success; and







4. The possible prejudice to the
respondent should the application be granted.






In
terms of Rule 30 of the Supreme Court Rules,



“An appellant shall institute
an appeal within the following times –







(a) if leave to appeal is not
necessary, by serving notice of appeal within fifteen days of the
date of the judgment appealed against”.











The applicant was therefore
over a month out of time.





The
explanation given for the delay is of some concern. It is an insult
to the intelligence of this Court. The judgment was
noted by a
legal practitioner, who had instructions on the same day to note an
appeal. The importance of noting the appeal on time
could not have
escaped the legal practitioner’s attention. Surely it was a
simple matter of diarising the matter to ensure the
appeal was noted
on time. To entrust such an important matter to a secretary without
checking to ensure that it is done displays
a degree of negligence
not expected of a legal practitioner. In the final analysis, it is
the legal practitioner, not his secretary,
who is responsible to his
client as well as to the Court for compliance with the Rules of
Court.





In
addition, the manner in which this application was made raises the
suspicion that the explanation being proffered by the applicant’s
legal practitioners is lacking in truth/honesty. Neither of the two
legal practitioners involved – Mrs Harvey and Mr Samukange
– has seen fit to file an affidavit explaining the delay. The
notice of appeal bears the date 9 October 2004, which was
a
Saturday. The legal practitioner had instructions on the day of
judgment, but the matter was left to the end of the period in
which
an appeal could be filed. It is not disclosed who drafted the
notice of appeal and why the secretary was not checked on.





An
applicant for condonation of the failure to abide by the Rules of
this Court must be honest with the Court. Condonation will
not be
granted as a matter of course but only if the judge is satisfied that
the applicant is genuine and has made out a case for
the grant of
this indulgence. I am not persuaded by the explanation advanced by
the applicant for his failure to note the appeal
timeously.





The
prospects of success are non-existent. The applicant advertised his
house in The Herald newspaper on 24 July 2003 at a
price of $85 million. The respondent made an offer of
$82 million, which was accepted
by the estate agents employed by
the applicant on 25 July 2003. An agreement of sale was
immediately drawn up and the respondent
paid the required deposit of
ten million dollars. The sale was subject to a special condition
that the respondent should secure
a loan for the full purchase price
from her employer – the bank – within thirty days of the date of
the agreement.





On
5 August 2003 the bank issued a letter of undertaking in favour
of the applicant’s legal practitioners for the full balance
of the
purchase price, which was $72 million. The guarantee was
delivered to the applicant’s legal practitioners and conveyancers,
Messrs Byron Venturas & Partners, under cover of a letter from
the respondent’s legal practitioners, Messrs Scanlen &
Holderness,
dated 13 August 2003. By 14 August 2003 a
draft mortgage bond against the property in favour of the bank had
been drawn,
as well as cheques for stamp duty, in preparation for
simultaneous lodging with the applicant’s legal practitioners of
the draft
documents for ensuring transfer.





Meanwhile,
on 31 July 2003, the applicant wrote to his estate agents
purporting to cancel the sale alleging “discrepancies
and
inadequacies” in the registration of the estate agents themselves
with the Real Estate Institute of Zimbabwe. Bearing in
mind that
the estate agent was appointed by the applicant, the relevance of the
alleged irregular registration to the agreement of
sale between the
parties was not apparent to the respondent and she sought an
explanation from the applicant. When she finally
got in touch with
the applicant, she was “surprised to hear him shamelessly demand
that (she) should increase (her) offer from
$82 million to
$100 million, as there was another prospective buyer offering
the latter amount. The property was later
advertised in The Herald
for $120 million. The applicant had resiled from the agreement
concluded with the respondent.





Not
surprisingly, therefore, the respondent successfully obtained, in the
court a quo, an order compelling transfer to herself of
the property.





Accordingly,
no basis has been advanced on which the application could be granted.





This
application was entirely misguided and it has put the respondent to
the further and unnecessary expense of defending these
proceedings.
It is only fitting in the circumstances that costs should be ordered
on the legal practitioner and client scale.





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




















Byron
Venturas & Partners
, applicant's legal practitioners


Scanlen
& Holderness
, respondent's legal practitioners