Court name
Supreme Court of Zimbabwe
Case number
SC 17 of 2005
Civil Application 83 of 2005

Abraham v Abraham and Others (83/05) (SC 17 of 2005, Civil Application 83 of 2005) [2005] ZWSC 17 (23 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 17













DISTRIBUTABLE
(14)


Judgment
No. SC. 17/05


Civil
Application No. 83/05








VIOLET
ABRAHAM v




(1)
RICHARD ABRAHAM (2) THE CITY OF
BULAWAYO


(3)
THE DEPUTY SHERIFF OF THE HIGH
COURT








SUPREME
COURT OF ZIMBABWE


HARARE,
JUNE 9, 2005








Before:
CHEDA  JA, In Chambers, in terms of Rule 30 of the
Supreme Court Civil Rules






The
applicant and the first respondent are brother and sister. On
18 May 2001 the applicant (“Violet”) obtained an order
against the first respondent (Richard”) for his ejectment from a
house which each party claimed to own. It was ordered that Richard
be ejected from the house, together with any persons who occupied
through him the house on stand no. 5972 Thorngrove, Bulawayo,
and that he pay rental of $4 000 per month calculated from
1 February 2001 to date of eviction and costs of suit on an
attorney and client scale.





This
was a default judgment which was subsequently rescinded at the
instance of Richard. The matter was brought to trial on 4
and
12 September 2003 and finalised on 25 November 2004. The
court awarded the house to Richard.






Violet says she did not get to
know about the judgment. She was represented at the trial. She
says her legal practitioner advised
her to withdraw her file as the
legal practitioner was moving to another law firm. She says
judgment was passed in her absence
on 25 November 2004. She
was told by her legal practitioner, who was then Mr Marondedze
of Sibusiso, Ndlovu & Partners,
that the judgment was not in her
favour. She went to consult the registrar of the High Court some
time in December 2004. She
was advised to provide the registrar
with bond paper so as to have the judgment printed for her. She
provided the registrar with
bond paper and the judgment was printed
for her in December 2004.





Violet
took the judgment to her representative, who advised her he would
assist her in noting an appeal but to no avail. She sought
the
services of another legal practitioner, who said he was unable to
deal with the case. She was advised to approach the Zimbabwe
Federation of Trade Unions in Bulawayo, which assisted her in noting
this application.





Rule 30
of the Supreme Court Rules required Violet to note the appeal within
fifteen days of the judgment. She says she believes
that she
received the judgment when the period for the noting of the appeal
had already lapsed and the notice of appeal was already
out of time.





The
applicant does not give any actual dates, but says she got to know
about the judgment when her legal practitioner told her that
the
judgment was not in her favour. She does not say when this was.
She says she went to consult the registrar of the High Court
in
December 2004. Again she does not give the date.





I
am not persuaded that the registrar would ask Violet to supply bond
paper in order to print a judgment for her. This cannot be
true.





Further
to that, having known about the judgment in December 2004, Violet
only filed this application on 23 March 2005, that
is, three
months after the judgment was delivered. I am not satisfied with
her explanation for this long delay and on that ground
the
application should fail.





On
the merits, the matter went to trial and each party led evidence.
The trial court listened to the evidence, assessed the credibility
of
the witnesses and found that the first respondent and his witnesses
were more credible than the applicant was. I cannot interfere
with
that finding.





The
applicant has not shown that if the appeal were heard she would have
any better evidence or argument than that at the trial.
She did not
even file grounds for the appeal.





The
requirements for leave to note an appeal out of time have been stated
in several cases. See De Kuszaba-Dabrowski et Uxor v Steel N.O.
1966 RLR 60 (A); Kombayi v Berkhout 1988 (1) ZLR 53 (S); and
Kilian v Geregsboge, Uitenhage 1980 (1) SA 808 (A). This
application does not meet the above requirements.





A
further point raised by the first respondent is that the property has
since been transferred into his name.





The
application cannot succeed and it is dismissed with costs on an
attorney and client scale.





















Dube
& Partners
, first respondent's legal practitioners