Court name
Supreme Court of Zimbabwe
Case number
SC 4 of 2005
Civil Appeal 32 of 2003

Machaya v Muyambi (32/03) (SC 4 of 2005, Civil Appeal 32 of 2003) [2005] ZWSC 4 (03 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 4






















Judgment
No. SC 4/05


Civil
Appeal No. 32/03











JAISON
KOKERAI MACHAYA v LAMECK NKIWANE MUYAMBI








SUPREME
COURT OF ZIMBABWE


HARARE,
FEBRUARY 4, 2005








T.
Mawere
, for the
appellant





L
Uriri
, for the
respondent












Before: ZIYAMBI JA, in Chambers,
in terms of Rule 39 of the Supreme Court Rules.









The
applicant, who was the parliamentary candidate for the Zimbabwe
African National Union – Patriotic Front (“ZANU-PF”) in
the
parliamentary elections held in June 2000, was duly returned as
Member of Parliament for Gokwe South. On 26 July 2000 the
respondent filed a petition in terms of s 132 of the Electoral Act
[Chapter 2:01](“the Act”) complaining of an undue election.
On
15 January 2000, the High Court delivered its judgment upholding the
petition. (HH 4/2003) An appeal was duly noted on behalf
of the
applicant on 31 January 2003.






On
19 May 2004, the Registrar of this Court wrote to the applicant's
legal practitioners advising them that the record of proceedings
were
received by the Supreme Court on 19 May 2004 and calling on them to
file Heads of Argument within 15 business days from the
date of
service of the letter. The letter was served on the applicant’s
legal practitioners on 20 May 2004. There was no compliance
with
this request.





On
14 October 2004, the Registrar of this Court again wrote to the
appellant’s legal practitioners this time advising them that
the
appeal was deemed to have been dismissed since no Heads of Argument
were received within the prescribed period (stated in her
letter of
19 May 2004). It was advised that the records were being returned
to the court of origin to enable execution by the respondent
of the
judgment appealed against. Only then did the appellant’s legal
practitioners respond.






They received the letter on 22
October 2004 and filed this application on 28 October 2004.
Notwithstanding the requirement of Rule
39 of the Rules of this Court
that applications should be by way of court application, the
application filed was a chamber application.
The founding affidavit
was sworn by the legal practitioner who had been handling the appeal.
Despite this fact, it took the legal
practitioner six days to file
the application.




The
explanation tendered by Mr
Mawere,
who appeared for the applicant, is that despite many requests for the
record from the Registrar of the High Court, a copy was not
availed
to the applicant's legal practitioners. This explanation is wholly
unsubstantiated.






There
was, attached to the papers, no letter written to the Registrar of
the High Court; no file note showing that visits were made
to the
Registrar's Office in search of the record; no note of telephone
conversations with the Registrar requesting the record; no
letter to
the Registrar of this Court indicating that there was a difficulty in
obtaining the record.





The
deponent to the founding affidavit states that he was aware that the
respondent’s legal practitioners were in possession of
their copy
of the record and he was content to wait to peruse the respondent's
copy after the respondent’s Heads of Argument had
been drawn by an
advocate briefed for that purpose.


In
paragraph 6 of the founding affidavit the legal practitioner states:






6. “Accordingly we failed to do
our Heads of Argument in time, a position which we relayed to our
learned friend Mr
Lewis
Uriri
of Honey &
Blanckenberg legal practitioners for the respondent who promised to
supply us with his copies of the record as soon
as Advocate
Zhou
who (
sic)
they had briefed was through with them.







7. We have not yet received any
copy of the records from the High Court Registrar nor from our
learned friend, Mr
Uriri
and the only communication we have had was from the Registrar of this
Honourable Court advising us that the applicant’s appeal
was
regarded as abandoned.”









In
paragraph 8 he avers that his failure to file Heads of Argument was
“neither out of deliberate failure nor was it due to tardiness
on
our part but due to administrative deficiencies at the High Court.
We therefore aver that this cannot be visited on our client”.





A
more fitting example of tardiness and negligence can hardly be found.
The legal practitioner was advised by the Registrar that
the
records had been received at the Supreme Court. If he encountered
difficulty in obtaining the record from the High Court, why
did he
not peruse or obtain a copy of the record held at the Supreme Court
for the purpose of drawing Heads of Argument? There
was, in
addition, no evidence by the applicant to the effect that he made
efforts to ensure the timeous prosecution of his appeal.





As
Mr
Uriri
submitted, he was able to obtain the respondent’s copy of the
record from the Registrar of the High Court with no difficulty.

This, together with the fact that the applicant has attached no
documentary proof of his efforts to obtain the record, suggests
to me
that the legal practitioner made no effort to obtain the record.







It seems that the applicant’s
legal practitioner was content to do nothing – and nothing he did.
Mr
Mawere
concedes that the legal practitioner was remiss but asks that the
client not be visited “with the sins of his legal practitioner”.






How
many times has this plea been heard in the many applications before
this Court whether for condonation and extension of time within
which
to appeal, or for reinstatement of appeals! Times innumerable.
Yet the flood of applications continue unabated and the
same excuses
are tendered over and over.






The time has come for sterner
measures to be taken of applications of this nature where negligence,
tardiness, and disdain for the
rules of court is exhibited by legal
practitioners. The often quoted passage from the judgment of
STEYN CJ
in
Saloojee
& Anor,
NNO v Minister of
Community Development

1965 (2) SA 135 (A) at 141 C–E bears repeating here, namely, that:






“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.”





And
at F-H:


“A
litigant, moreover, who knows, as the applicants did, that the
prescribed period has elapsed and that an application for condonation
is necessary, is not entitled to hand over the matter to his attorney
and then wash his hands of it. If, as here, the stage is
reached
where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by, without so much
as
directing any reminder or enquiry to his attorney (
cf.
Regal v. African Superslate (Pty.) Ltd
.,
supra
at p 23
i.f.)
and expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient, he cannot
be heard to claim that the insufficiency should be overlooked merely
because he has left the matter entirely in the hands of his
attorney.
If he relies upon the ineptitude or remissness of his own attorney,
he should at least explain that none of it is to
be imputed to
himself. That has not been done in this case. In these
circumstances I would find it difficult to justify condonation
unless
there are strong prospects of success”.









The applicant himself is not
without blame. There is nothing in the papers to satisfy me that the
applicant made efforts to ensure
the timeous prosecution of his
appeal.





The
notion that condonation of a breach of the Rules is there for the
asking ought to be dispelled. And, there must be finality
to
litigation. It is an injustice to a party who has been waiting to
execute his judgment to be forced to suffer the effects of
the
disregard by the other party’s legal practitioners of the Rules of
Court, namely, the delaying of the execution of his judgment.





The
factors usually weighed by the court in considering applications of
this nature are the degree of non-compliance, the explanation
for it,
the importance of the case, the prospects of success, the
respondent’s interest in the finality of his judgment, the
convenience
of the court and the avoidance of unnecessary delay in
the administration of justice. See
Herbstein
& Van Winsen
The
Civil Practice of the Supreme Court of South Africa

4
th
ed at p 898.


It
was submitted on behalf of the applicant that there are good
prospects of success on appeal in that the finding of the learned
Judge that the perpetrators of the act of violence proved to have
been committed against the respondent were agents of the applicant,
was wrong. I will address this submission below but suffice it to
say at this stage that even where there are prospects of success,
that factor is not necessarily decisive. See
Kodzwa
v Secretary for Health

& Anor
1999 (1) ZLR 313 (S) at 315 F-H where SANDURA JA remarked:





“Whilst
the presence of reasonable prospects of success on appeal is an
important consideration which is relevant to the granting of
condonation, it is not necessarily decisive. Thus in the case of a
flagrant breach of the rules, particularly where there is no
acceptable explanation for it, the indulgence of condonation may be
refused, whatever the merits of the appeal may be. This was
made
clear by MULLER JA in
P
E Bosman Transport Work
s
Committee & Ors v
Piet Bosman Transport (Pty) Ltd

1980 (4) SA 794 (A) at 799 D-E, where the learned JUDGE OF APPEAL
said:





‘In
a case such as the present, where there has been a flagrant breach of
the Rules of this court in more than one respect, and where
in
addition there is no acceptable explanation for some periods of delay
and, indeed, in respect of other periods of delay, no explanation
at
all, the application should, in my opinion, not be granted whatever
the prospects of success may be.’”








See
also
Rennie v Kamby
Farms
(Pty)
Ltd
1989 (2) SA 124
(A) at 131 G-J:





“The
notice of appeal, however, states no reasons for concluding that the
appeal is likely to succeed. It does no more than to recite
that
the trial Court erred in making the findings on which its judgment is
based; and to list those findings which, so it is suggested,
the
learned Judge should have made.





In
applications of this sort the prospects of success are in general an
important, although not decisive, consideration. It has
been
pointed out (
Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and others

1985 (4) SA 773 (A) at 789C) that the Court is bound to make an
assessment of the petitioner’s prospects of success as one of the
factors relevant to the exercise of the Court’s discretion unless
the cumulative effect of the other relevant factors in the case
is
such as to render the application for condonation obviously unworthy
of consideration. It seems to me that in the instant case
the
cumulative effect of the factors which I have summarised in paras
(1)-(5) above is by itself sufficient to render the application
unworthy of consideration; and that this is a case in which the Court
should refuse the application irrespective of the prospects
of
success. (
Cf Mbutuma v
Xhosa Development Corporation Ltd
1978
(1) SA 681 (A) at 687 A;
P
E Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd
1980 (4) SA
794 (A) at 799D-E.)”









I am of the view that the lack of
diligence exhibited by both the legal practitioner and the applicant
in this matter is sufficient
to render this matter unworthy of
consideration irrespective of the prospects of success.






Despite this view I considered
the prospects of success and have come to the conclusion that they
are slim. The respondent who
contested the elections as the MDC
candidate for the same constituency, was, on 19 June 2000, severely
assaulted by a number of Zanu
PF supporters who included Johannes
Dzenga, a member of the applicant’s campaign team. He was
hospitalized as a result of the
assault and was allowed out in order
to vote on the 25 June. Thereafter he returned to the hospital for
completion of his recovery
process.






That Dzenga was a member of the
applicant’s campaign team was common cause in the court
a
quo
. The learned
Judge found that a corrupt practice had been committed by Dzenga, an
agent of the applicant within the meaning of
s124 (a) of the Act and
that accordingly the election was void.







The learned Judge also found that
the election of the applicant could not be saved by the provisions of
s125 since the applicant on
the evidence before her had not taken any
reasonable precautions to prevent the commission of corrupt practices
at the election.







In the circumstances I am not
persuaded that there are any reasonable prospects of success on
appeal and the application is accordingly
dismissed.























Ziumbe & Mtambanengwe,
appellant's legal practitioners


Honey
& Blanckenberg
,
respondent's legal practitioners