Court name
Supreme Court of Zimbabwe
Case number
SC 54 of 2006
Civil Application 236 of 2000

Fuyana v Moyo ( 236/00) (SC 54 of 2006, Civil Application 236 of 2000) [2006] ZWSC 54 (29 November 2006);

Law report citations
Media neutral citation
[2006] ZWSC 54







REPORTABLE
(46)


Judgment
No. SC 54/06



Civil Application No. 236/00








VIGOUR
BUSILIZWE FUYANA v NTOMBAZA MOYO








SUPREME
COURT OF ZIMBABWE


HARARE,
OCTOBER 11 & NOVEMBER 30, 2006








The
applicant in person





No
appearance for the respondent









Before: CHIDYAUSIKU CJ, In Chambers, in terms of r 31



of the Rules of the Supreme Court









This is a Chamber application for the
condonation of the late noting of an appeal. Although the applicant
does not specifically
aver this, I shall assume that the application
is made in terms of rule 31 of the Supreme Court Rules (“the
Rules”).






On 25
July 2005 SANDURA JA, sitting with MALABA JA and NDOU AJA,
issued the following order:







“WHEREUPON,
after reading documents filed of record and hearing counsel,







IT IS ORDERED THAT:







The matter be struck off the roll with costs.”







The record reveals that both parties were present, and the record of
SANDURA JA, who presided over the matter, indicates that
the
matter was struck off the roll because the notice of appeal was filed
out of time and no application for condonation had been
made.
Because of the multiplicity of cases involving the same parties, it
is important to understand that the Court was seized
with appeal case
no. SC 236/2000, which was an appeal against judgment
no. HB-44/2000.







Where an appeal is noted out of time, before the matter can be
heard by this Court an application for condonation has to be made
and
such condonation granted before the appeal can be entertained. A
matter that is set down for hearing without condonation being
first
granted will be struck off the roll, as happened in this case.







On 14 and 18 July 2000 the applicant filed
a Chamber application for directions before KAMOCHA J. He
handed down judgment
dismissing the application on 20 July 2000.
The judgment is judgment number HB-44/2000.







Over a year after the handing down of the
judgment, on 21 August 2001, the applicant filed a notice of
appeal against the judgment
of KAMOCHA J. The headnote of that
notice of appeal reads as follows:







“Take
notice that the applicant hereby appeals against the judgment of the
High Court No. HB-44/2000, in terms of which the Honourable
Judge
dismissed the applicant’s application for discharge of the
provisional order in case number HC 5207/99 with costs on
the
grounds and reasons detailed below.”







Apart from the fact that the above notice of
appeal does not comply with the Rules, in particular r 29(a) and
(c) in that it
does not give the date when the judgment was delivered
nor state whether the appeal is against the whole or part of the
judgment,
and is therefore invalid, it was filed way out of time.
The applicant was appealing against the judgment of KAMOCHA J
(no.
HB-44/2000) which had been handed down on 20 July 2000 and
not any of the other judgments involving the same parties of which
there are several. Thus the Court was seized with an appeal against
judgment no. HB-44/2000 and no other matter.







The applicant in his submissions to the Court
alleges that he filed a notice of appeal against this judgment,
no. HB-44/2000,
on 15 August 2000 and that the above notice
of appeal of 21 August 2001 was an amendment to the notice of
appeal filed
on 15 August 2000. The alleged notice of appeal
of 15 August 2000 is not on the record. The notice of appeal
of 21 August
2001, cited above, is not an amendment but a notice
of appeal on its own. However, even if I were to accept that the
applicant
did file a notice of appeal on 15 August 2000, that
notice of appeal would have been out of time. Judgment HB-44/2000
was
handed down on 20 July 2000 and, according to my
calculations, the
dies induciae
for noting an appeal expired on 10 August 2000. Thus, the
notice of appeal filed on 15 August 2000 was outside the fifteen
days prescribed by the Rules of the Supreme Court. Thus, whichever
of the two dates one accepts as the date for the filing of the
notice
of appeal makes no difference. Both dates were outside the
dies
induciae
. Consequently, the striking
off of the matter from the roll admits no doubt. The applicant
contends that the matter should not
have been struck off the roll and
impugns the integrity of the Court for striking the matter off the
roll. I shall revert to this
aspect of the matter later.







Ten months after the appeal was struck off the
roll, on 17 May 2006, the applicant filed the present
application for condonation
of the late noting of an appeal. The
Rules of this Court provide that condonation for the late noting of
an appeal can be granted
upon the establishment of a good cause.







It is well settled that the essential elements
of a good cause are –







(a) a reasonable explanation for the failure to file the notice of
appeal within the prescribed period;







(b) some prospect of success on the merits; and







(c) the bona fides
of the application.







REASONABLE EXPLANATION FOR THE FAILURE TO
NOTE THE APPEAL IN TIME







The applicant’s application for condonation in this case consists
of unwieldy voluminous affidavits, submissions and attached
documents. The voluminous application for condonation does not
provide the one thing that is critical to the applicant’s case,
namely the explanation for the applicant’s failure to file the
notice of appeal in the time prescribed by the Rules. Without
such
an explanation it is difficult to see how a Judge can grant the
applicant the indulgence or condonation sought.







The applicant in para 7.4 of the founding affidavit makes the
following averment:







“The
Appellate Judge did not appreciate the fact that judgment Number
HB-44/2000 was uplifted on 3 August 2000; that the original
Notice Of Appeal in SC 236/00 was filed on 15 August 2000;
that the notice of amendment of the grounds of appeal was filed
on
3 August 2001 and the fact that the Appeal Number is SC 236/00
and not SCA 236/01.







The Appellate Judge did not appreciate the fact
that the main action matter number HC 4295/98 and its allied
application HC 5207/99
were consolidated into one matter and
that condensed arguments in both applications were presented on
14 July 2000. Therefore
there was no need to apply for leave
to appeal or for condonation to appeal out of time, as there was
nothing interlocutory about
HC 5207/99 and since the CHEDA J
(as he then was) Orders and Judgments must not have been at all, as
the respondent had
recovered her $20 384.”







The applicant suggests the matters between the
parties had been consolidated. The record shows no order
consolidating the cases.
Cases do not consolidate on the mere say
so of the litigant. This near meaningless averment is the nearest
that can be described
as an explanation proffered by the applicant
for the failure to file the notice of appeal on time. The above
averment falls far
short of discharging the
onus
on the applicant to provide a reasonable explanation for his failure
to comply with the Rules. In my view, the above averment is
no
explanation at all. If anything, the suggestion in para 7.4 is
that
dies induciae
should run from 3 August 2000 because that is when the applicant
became aware of the judgment. That contention is untenable
and
unacceptable.







The applicant has not provided an acceptable reason for his failure
to comply with the Rules and on this basis alone the application
for
condonation must fail.







However, even if I were to accept that the
applicant filed his alleged notice of appeal, which is not on the
record, within five days
of the
dies
induciae
, and therefore should be given
some latitude, I would still dismiss this application on the basis
that it has no prospects of success
on the merits.







PROSPECTS OF SUCCESS ON THE MERITS







As I have already stated, the appeal that was before the Court and
that was struck off the roll was the appeal against judgment
no.
HB-44/2000. In that judgment KAMOCHA J dismissed a Chamber
application for directions by the applicant. Judgment no.
HB-44/2000 is very brief and to the point. The judgment very ably
sets out the facts of this case and the reasoning behind the
learned
Judge’s conclusion. I can do no better than refer to it
extensively. It reads in part as follows:







“For convenience, the parties in this matter will be referred to as
Fuyana and Ntombaza.






On 14 October 1998 Ntombaza obtained a
provisional order whose terms
inter alia
barred Fuyana from taking transfer of stand number 11747
Nkulumane from one William Ndlovu who had allegedly sold the
same
property to Ntombaza using Fuyana as his agent. Ntombaza was
also granted rights to re-occupy the house as she had been in
occupation
before the said house had been damaged by one Jericho
Maphosa.







Fuyana filed his notice of opposition but did not
anticipate the return date. Exactly a year later, on 14 October
1999, Ntombaza
made an
ex parte
application seeking for (
sic)
an order converting the papers in the first application to pleadings
and the matter (to be) referred to trial. The parties were
allowed
to file further pleadings within fourteen days of the order if they
so desired.






This
application to refer the matter to trial was served on the legal
practitioners of Fuyana on 8 October 1999. There seemed
to be
no opposition from Fuyana’s legal practitioners and the application
was granted six days after it had been served. To illustrate
the
confusion that reigned in Fuyana’s camp a belated attempt to oppose
the application was made by Fuyana himself, not through
his lawyers.






Ntombaza asserted that Fuyana’s legal practitioners had agreed that
the matter be referred to trial. I am inclined to agree with
her
because if what she asserted was not true Fuyana’s legal
practitioners would have filed an affidavit denying that they had
agreed to the matter being referred to trial with the terms of the
provisional order standing.






When the
court granted the application it must have been satisfied that the
matter was not capable of being resolved on the papers
filed of
record. It then issued an order which has not been rescinded. The
matter has been settled and yet Fuyana still calls
upon the court to
interfere.






The court had concluded that a robust approach could not be adopted
in this particular case to resolve the matter on the papers in
the
light of the numerous disputes of fact therein. But Fuyana still
lodged this application requesting the court to discharge
the
provisional order in question. He also wanted Ntombaza and all
persons claiming through her to be ordered to vacate stand 11747
Nkulumane within forty-eight hours of service on them of the order,
failing which the Deputy Sheriff be ordered to evict them and
their
possessions.






Fuyana is
clearly abusing court process and this court should express its
displeasure by ordering him to pay punitive costs.







In the result, the application is dismissed with costs on an
attorney/client scale.”







It is difficult to see on what possible basis a Court of Appeal can
interfere with the above judgment more so having regard to
the
grounds of appeal contained in the notice of appeal. The reasoning
and the conclusion of the learned Judge, in my view, are
flawless and
there is no prospect of an appeal court differing from the learned
Judge. The notice of appeal filed by the applicant
is no more than
a series of senseless assertions that the learned Judge misdirected
himself on this fact or on that point of law.
The notice of appeal
raises nothing worth serious comment or consideration.







I would also add that KAMOCHA J was dealing with an
application for directions by the applicant. The heading of the
application
specifically indicates that the application before the
learned Judge was one for directions. An application for
directions, as
the word implies, is an application seeking directions
on how to proceed in the main proceedings, usually the trial.
Order 23
and r 152 clearly set out the purpose and content
of an application for directions.







The application before KAMOCHA J, although headed application
for directions, sought to canvass issues between the same persons
referred to trial by another judge. The draft order attached to the
application for directions sought substantive and not procedural
relief.







In my view, an application for directions that
seeks in its draft order the eviction of the respondent from the
premises is totally
misconceived and should have been dismissed on
that basis alone without much ado. The merits of the case involving
the agreement
of sale which the applicant is harping on
ad nauseum
could only be resolved properly at a trial. The judge in the
previous proceedings was quite correct in referring the issues for
trial. This was done with the consent of the applicant’s legal
practitioner and therefore with the consent of the appellant.
The
learned Judge, in my view, was correct in ordering the matter to go
to trial.







It would appear from the record that the trial did
not take place because the applicant was in default. Where a
default judgment
has been granted, the recourse open to an aggrieved
party is to apply for rescission of the judgment. It may well be
that the applicant
applied for rescission of the judgment – that is
not very clear on the record. But whatever the applicant’s
grievance may have
been in respect of those proceedings, they are
totally irrelevant to the filing of an appeal against the judgment of
KAMOCHA J.







I am satisfied that the applicant has no prospects of successfully
appealing against the judgment of KAMOCHA J, No. HB-44/2000.
On that basis alone, even if I were to forego the failure to note
an appeal on time, this application must fail.










Before concluding, I would like to make the following observations
–







Voluminous submissions, affidavits and documents relating to the
validity or otherwise of an agreement of sale and the issue and
status of the agreement of sale, were filed in this application for
condonation. These were totally irrelevant to the issues I
need to
determine in this case, namely, whether or not KAMOCHA J was
correct in dismissing an application for directions seeking
the
discharge of a provisional order which had already been referred to
trial by another Judge.




It is trite
that supporting affidavits in an application should contain essential
averments in support of the relief claimed.
The papers filed in
this case bear no resemblance to the above requirement. For
instance, the founding affidavit and its attachments
run into some
forty pages, yet there is no explanation as to why the notice of
appeal was not filed in time. Further, as part of
the application a
bundle of documents of about seventy pages headed “Evidence” was
filed. Another bundle of documents entitled
“Supporting Heads of
Argument”, consisting of not less than fifty-five pages was also
filed. A good part of the so-called “Supplementary
Heads of
Argument” is devoted to principles of what the applicant called
“Advocacy”, “Advocacy A Code of Conduct”, “Objections
in
limine
”. A long list of the cases
that were cited and summarised in the supplementary heads of argument
had no bearing on the application
for condonation of the late noting
of an appeal. There was also another bundle of documents filed in
this application headed “Civil
Appeal”. This bundle of
documents amounted to some forty pages and consisted of what the
applicant called “Opening Speech”,
“Consolidated Heads” and
“Closing Speech”. In brief, this application was overloaded
with rubbish.







Worse still, after hearing this matter I reserved judgment. The
applicant, without the leave of the Judge, filed yet another
lengthy
document, in which he sought to explain why the notice of appeal was
not filed on time and to lecture me on how a CHIEF JUSTICE
should discharge his duties and his intention to write a book about
this case. I have completely disregarded this document, as
it was
improperly placed before me. The application stands or falls on the
founding affidavit. It is not open to litigants to
file affidavits
in complete disregard of the Rules.







Apart from this, the applicant has impugned the integrity of
virtually all the Judges who handled this case. There is absolutely
no basis for impugning the integrity of the Judges who have handled
this case. This case constitutes the most blatant abuse of
court
process I have ever come across. This kind of abuse of court
process is unacceptable.







It is also apparent from the record that the applicant was
imprisoned for contempt of court for refusing to obey a court order
in respect of proceedings involving the same parties to this
application. The inescapable inference is that the applicant has
very
little regard for court process.







It is quite apparent from the nature of the documents filed in
these proceedings that the applicant is conducting himself in this
manner at the instance of or with the assistance of some “bush
lawyer” with very limited knowledge of the law and the procedures
of the courts. Be that as it may, I hold the applicant accountable
for this abuse of court process and warn him of the risk of
an order
of perpetual silence. In the meantime there is need for the Court
to protect its process from this kind of abuse.







The Court has inherent jurisdiction to regulate
its own processes, which it can use to protect its process from
abuse. See
De Villiers and Anor v
McIntyre N O
1921 AD 435. In the
exercise of that jurisdiction, I will therefore issue the following
directive –







“THAT
the applicant is barred from commencing any litigation concerning the
disputed sale of Stand No. 11747 Nkulumane, Bulawayo,
without
first obtaining the leave of a Judge of the High Court or this
Court”.







For the foregoing reasons, the application is dismissed. There
will be no order as to costs as none was asked for.