Court name
Supreme Court of Zimbabwe
Case number
SC 54 of 2005
Civil Application 136 of 2005

Gasela v Constituency Elections Officer for Gweru Rural Constituency and Others (36/05) (SC 54 of 2005, Civil Application 136 of 2005) [2005] ZWSC 54 (10 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 54




REPORTABLE (40)














Judgment No
SC 54/05


Civil Application No
136/05

















RENSON
GASELA v (1) CONSTITUENCY ELECTIONS OFFICER FOR
GWERU RURAL CONSTITUENCY (2) CHAIRMAN
OF THE
ZIMBABWE ELECTORAL COMMISSION (3) JOSPHAT MADUBEKO











SUPREME COURT OF
ZIMBABWE


HARARE JUNE 2 &
OCTOBER 11, 2005








E. Matinenga,
for the appellant





G. Chikumbirike,
for the respondents












Before CHIDYAUSIKU CJ, in Chambers





This is an
application for an extension of time to appeal. The application is
headed “court application for extension of time
in which to appeal
in terms of Rule 30 subrule 3”. The notice reads:-






“Take notice that the applicant intends to apply to the Supreme
Court for an order in terms of the draft order annexed to this
notice
and that the accompanying affidavits and documents will be used to
support the application.”






The draft order
provides as follows:-






“IT IS ORDERED:






1. That leave be and is hereby granted to the Appellant to file an
appeal against the order of the High Court made under Case No
HC
495/2005 awarding costs in favour of the 1st, 2nd and 3rd
Respondents on an attorney and client scale.





2. That such notice of
appeal be filed with the Registrar of this Honourable Court within 7
days of the date of this order.





3. That Respondents
should pay the costs of this application only if they oppose it.”









The application was opposed. The applicant avers that he was
unable to note an appeal on time because of the delay in the handing
down of the reasons for judgment. The reasons for judgment were
handed down some time after the judgment. The applicant submitted
that the appeal has prospects of success. The applicant’s grounds
of appeal are:-






“1. The court a quo erred in law in concluding that the
procedural flaws in the application were of such a nature as to
warrant an award of costs on
a punitive scale.





2. The court a quo
erred in considering the scale of costs in not lending weight to the
fact that the reason the appellant proceeded by way of an urgent
application was that the appellant wanted the matter determined
before the holding of a parliamentary election which was only a week
away and to that extent the matter was urgent.





3. The court a quo
erred in considering costs by ignoring the fact that the period
between the 18th February 2005 and the 18th
March 2005 when the urgent application was filed was only a month
during which appellant had sought legal advice before deciding
to
approach the court and therefore could not be said to have waited
until the last minute before approaching the court.





4. The court a quo
should have found it a factor in favour of the appellant when
considering costs, that the contents of the application met all the
requirements of the High Court Rules dealing with review applications
but for the fact that it was an urgent chamber application.





5. The court a quo
should have given due weight, in determining the scale of costs, to
the fact that the issues raised in the application against 3rd
respondent’s nomination were meritable and, if considered by the
court, would have led to the disqualification of the 3rd
respondent from contesting the election.






RELIEF SOUGHT







The appellant prays that this Honourable Court sets aside the order
of the court a quo awarding costs against appellant on an
attorney and client scale and substitute the following order:-






‘Accordingly the application is dismissed with costs on an ordinary
scale.’”









The respondents opposed the application on the grounds that the
appeal has no prospects of success. It is quite clear on the
papers
that the applicant is not appealing against the entire judgment but
against the order as to costs on attorney and client scale.
The
applicant contends costs should have been on the ordinary scale.






The issue therefore is whether this was a proper case for the
awarding of costs on attorney and client scale. The reason for
awarding
costs at attorney and client scale was that the application
was riddled with procedural flaws and was an abuse of court process.

The court also held that the urgency of the matter was created by
the applicant’s failure to act timeously and that the matter
should
not have been brought to court on an urgent basis.





A perusal of the record
clearly establishes that this matter was handled most ineptly
particularly by the legal practitioners for
the applicant. The
conclusion of the court a quo in this regard cannot be
faulted. Even this application is characterized by ineptitude and
incompetence.




Firstly
this application states that it is being made in terms of Rule 30
subrule 3. There is no indication as to whether this is
Rule 30
subrule 3 of the High Court or Supreme Court Rules. The court
expects such indication for the purposes of clarity. The
rule cited
is the wrong rule. There is no Rule 30 subrule 3 of the High Court
Rules. Rule 30 of the Supreme Court Rules does
not have subrule 3.
It is Rule 31 subrule 3 of the Supreme Court Rules that deals with
applications for extension of time to appeal.
It would appear this
is the rule that the applicant must have intended to cite or should
have cited.




Secondly
this application does not comply with s 43(2)(c)(ii) of the High
Court Act [Chapter 7:06] which provides:-






“43(2) No appeal shall lie -





(a) …





(b) …





(c) from –





(i) …






(ii) an order as to costs only which by law is left to the discretion
of the court, without the leave of the High Court or of the
judge who
made the order or, if that has been refused, without the leave of a
judge of the Supreme Court.”









It is clear from s 43 of the High Court Act that an appeal against
an order of costs has to be with the leave of the court a quo.
In the event of such leave being refused only then can application
be made to this Court. In casu, no such leave was applied
for and, therefore, such leave was neither granted nor refused. The
applicant is seeking, in this application,
an extension of time to
note an appeal in respect of which he has no leave. Such leave is
required in terms of the Act. The applicant
should have first
applied for leave to note an appeal against the order of costs.
Once such leave has been granted by the court
a quo or such
leave has been refused by the court then the applicant can approach a
judge of the Supreme Court for an extension of time.
If leave to
appeal has been refused then the applicant can approach this Court
for: (a) the granting of such leave and, (b) for
the extension of
time within which to note an appeal. The failure by the applicant
to first seek the leave of the court a quo before approaching
this Court is a fatal irregularity and on that ground alone this
application cannot succeed.





Apart from this the
prospects of success on the merits are virtually non-existent. The
issue of costs is a matter for the discretion
of the court a quo,
see s 43 of the High Court Act. This Court can only interfere with
the exercise of such a discretion if there has been a misdirection
or
the order is so unreasonable that no reasonable court applying its
mind to the facts of the case could have made such an order.
A
perusal of the judgment of the court a quo reveals no
misdirection nor can the order be said to be unreasonable let alone
grossly unreasonable. Thus, even if the application
were properly
before me it was bound to fail on the ground that there were no
prospects of success.






In the result and for the foregoing reasons the application is
dismissed with costs.


















Coghlan & Welsh, appellant's legal practitioners


Chikimbirike &
Associates
, respondents’ legal practitioners