Court name
Supreme Court of Zimbabwe
Case number
SC 48 of 2006
Civil Application 172 of 2006

Marandure v Southey Investments (Pvt) Ltd. (72/06) (SC 48 of 2006, Civil Application 172 of 2006) [2006] ZWSC 48 (16 October 2006);

Law report citations
Media neutral citation
[2006] ZWSC 48



















Judgment
No. SC 48/06


Civil
Application No. 172/06








GIBSON
GABRIEL MARANDURE v SOUTHEY INVESTMENTS (PRIVATE)
LIMITED








SUPREME
COURT OF ZIMBABWE


HARARE,
OCTOBER 17, 2006








A
Chizikani
, for the
applicant





P
C Paul
, for the
respondent








Before:
ZIYAMBI JA, in Chambers in terms of rule 5 of the Rules of the
Supreme Court, 1964.









This is an application for an
extension of time within which to appeal. The judgment was
delivered on 15 March 2006 and the application
was filed in this
Court on or about 24 June 2006.





As
has often been repeated in the many cases of this type which have
flooded this Court in recent months the Court, in deciding whether
or
not to grant an application of this nature, will have regard to a
number of factors which include the extent of the default and
the
reasonableness of the explanation tendered for it, the prospects of
success on appeal, the prejudice if any, that is likely to
be caused
to the respondent should the application be granted, and, generally,
the need to bring finality to the proceedings. With
this in mind I
turn to consider the merits of the application.







The appeal should have been noted
within 15 days of the delivery of the judgment. Thus the delay of
some three months in noting
the appeal is considerable. The
explanation given by the applicant, who deposed to the founding
affidavit, for the delay is that
the applicant’s legal
practitioners were awaiting “the Honourable Judge’s typed
judgment and full reasons for the judgment
to enable us to note an
appeal”. The applicant averred that his legal practitioners and
himself were of the belief that they
were “entitled to note an
appeal only after receipt of the judgment”. Notwithstanding that
the typed reasons were not availed
to the applicant’s legal
practitioners, an appeal was noted on or about 24 June 2006 (the
date stamp of the Supreme Court does
not appear on the face of the
Notice of Appeal) by which time, the
dies
induciae
had already expired.







Not surprisingly, the respondent
challenged the validity of the appeal so noted and applied for leave
to execute the judgment purported
to be appealed against. The
applicant’s response was to file this application.









The respondent, in its opposing
affidavit, averred that the judgment was delivered in the presence of
the applicant and his legal
practitioners in open court after the
conclusion of argument by both parties and was in the exact terms as
the written judgment filed
with this application so that there was no
need to request typed reasons when full reasons for the judgment were
well known to the
applicant’s legal practitioner. The allegation
that the legal practitioner was well aware of the full reasons for
the judgment
from the date of its delivery is evidenced by the fact
that the notice of appeal was filed without recourse to the typed
judgment.
Further, no affidavit by the applicant’s former legal
practitioners was attached in proof of his allegations.







This Court has stated time and
time again that where allegations are made against a legal
practitioner or blame is placed on him for
failure to comply with the
rules, an affidavit from the legal practitioner must be attached or
failing that, proof that he was asked
to swear an affidavit and has
declined or refused to do so.






Besides, if the legal
practitioner was of the view that despite reasons being handed down
in open court he was entitled to note an
appeal after the expiry of
the
dies
induciae
as specified in the rules of court, then he was failing in his duty
to his client as the rules clearly state that the appeal must
be
noted within 15 days after delivery of the judgment. (See s 5 of
the Supreme Court Miscellaneous Appeals and References Rules,
1975).
A prudent legal practitioner would file a notice of appeal and, upon
acquiring the written judgment, seek to amend the grounds
of appeal
filed should there be further grounds apparent in the written
judgment that were not included in the notice of appeal filed
of
record. The actions of the legal practitioner, if the applicant has
correctly portrayed them, were far from prudent. I do not,
for the
above reasons, consider the explanation for the default to be a
reasonable one.







I turn to consider
the prospects of success.







The subject of the dispute is a
piece of land known as Maggios Plot situate in Mbare (“the plot”),
which the applicant alleges
was sold to him by the respondent pending
the acquisition of a permit to subdivide the property of which it
forms a part, and which
the respondent avers was let to the applicant
in 1987 for two years at a rental of $4000,00 per month. The
judgment sought to be
appealed against is one in which the High Court
granted to the respondent, an order for the eviction of the applicant
from the plot.







At the hearing before the High
Court, the respondent’s legal practitioners conceded that if there
was an agreement of sale as alleged
by the applicant, that agreement
would be illegal and therefore null and void by reason of its
contravention of s 39 of the Regional
Town and Country Planning Act
[
Cap 29:12
] (“the Act”) in that the respondent did not, at the time of the
agreement, have a permit for the subdivision of the property.









Section 39 provides as follows:








“39 No
subdivision or consolidation without permit






(1) Subject to subsection (2), no
person shall-





(a) subdivide
any property; or


(b) enter
into any agreement-






(i) for the change of ownership
of any portion of a property; or






(ii) for
the lease of any portion of a property for a period of ten years or
more or for the lifetime of the lessee; or





(iii) conferring
on any person a right to occupy any portion of a property for a
period of ten years or more or for his lifetime;
or





(iv) for
the renewal of the lease of, or right to occupy, any portion of a
property where the aggregate period of such lease or right
to occupy,
including the period of the renewal, is ten years or more;







or







(c ) consolidate two or more
properties into one property; except in accordance with a permit
granted in terms of section forty.”












Not only is there an express
prohibition of any subdivision without a permit granted in terms of s
40 of the Act, but the agreement
alleged by the applicant is in
direct contravention of s 39(1)(b). See also
X-Trend-A
Home (Private)
Limited
v
Hoselaw Investments

Private Limited
2000 (2) ZLR 348 (S).










The learned judge, in the face of
the concession by the applicant’s legal practitioners, granted the
application by the respondent
for the eviction of the applicant from
the plot. The applicant now contends that there are prospects of
success on appeal as
X-Trend-Home
was wrongly decided and the concession by his legal practitioners was
unjustified. Further, the applicant alleges that he made
improvements on the property on which he therefore holds a lien which
entitles him to remain in occupation of the property until
he has
been paid for the said improvements.









However, the respondent’s
stance, with which I am in complete agreement, is that since the
applicant did not raise the issue of
the lien in his opposing
affidavit but only addressed it in argument at the end of the
hearing, the learned judge cannot be faulted
for concluding that this
issue was not properly before her.












As for the argument that
X-Trend-Home
was wrongly decided, the judgment being one of the Supreme Court, is
binding on the High Court. In any event the judgment merely
expounds the clear provisions of s 39 of the Act that an agreement
such as the one alleged by the applicant is prohibited.












Accordingly, the applicant has
neither given a reasonable explanation for the default nor has he
established on the papers that there
are reasonable prospects of
success on appeal. The application must therefore be, and it is
hereby, dismissed with costs.














Chingore
& Associates
,
appellant's legal practitioners


Wintertons,
respondent's legal practitioners