Court name
Supreme Court of Zimbabwe
Case number
SC 18 of 2007
Civil Appeal 404 of 2005

Champion Constructors v Mkandla and Another (404/05) (SC 18 of 2007, Civil Appeal 404 of 2005) [2007] ZWSC 18 (09 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 18

DISTRIBUTABLE (17)






Judgment No. SC 18/07


Civil
Appeal No. 404/05








CHAMPION
CONSTRUCTORS V (1) MODRACK MKANDLA AND (2)
PATIENCE CHIPO MKANDLA








SUPREME
COURT OF ZIMBABWE


HARARE,
JUNE 15 & JULY 10, 2007









M Mandizha, for the applicant


T
Sakutukwa
, for the first respondent





No
appearance for the second respondent








Before
GARWE JA: In Chambers, in terms of the Supreme Court Rules.









This is an application for the reinstatement of an appeal which was
regarded as abandoned and deemed to have been dismissed in
terms of r
44 of the Supreme Court Rules.







The facts of this case are in the main not in dispute. On 21
December 2005 the applicant noted an appeal against the judgment of
the High Court in case number HC 8969/03. The applicant undertook to
pay for the preparation of the record. The Registrar of the
High
Court then prepared a record which did not contain a transcript of
the proceedings or the evidence of the parties. The record
also did
not contain the legal practitioners’ addresses. These errors
appear to have escaped the notice of the legal practitioners
of both
parties. On 11 July 2006 the Registrar of the High Court invited
both parties to inspect the record. The following day
i.e 12 July
2006, Messrs Musimbe & Associates, representing the
respondents, wrote to the Registrar advising of the passing away of
Mr Musimbe the sole partner of the law firm. On 26 July 2006
the applicant’s legal practitioners also wrote to the Registrar
suggesting that
the inspection of the record be deferred until the
status of Musimbe & Associates was clarified. There was
no response to that request. Instead the record was forwarded to the
Registrar of the Supreme Court.
On 7 August 2006 the Registrar of
the Supreme Court then wrote to the applicant’s legal practitioners
advising that the record
of appeal was now ready and calling upon the
same to file heads of argument within fifteen days from the date of
service of the letter.
No heads of argument were filed. On 11
September 2006 the Registrar wrote to the applicant advising of the
dismissal of the appeal.
Nothing further appears to have happened in
this matter until 26 September 2006 when the applicant’s legal
practitioners wrote
to the respondents’ legal practitioners
advising that an attempt to arrange the inspection of the record had
been in vain as the
record could not be located.




The applicant in his papers says that the record could not be located
by the High Court Registrar because it had erroneously been
forwarded
to the Supreme Court before inspection had taken place. The High
Court Registrar undertook to recall the record from the
Supreme Court
and the applicant believed therefore that the process would start all
over again.







The respondents oppose the application. They state that the
transcript was inspected by the parties. The Registrar of the High
Court then referred the record to the Supreme Court as no further
inspection was necessary. The respondents further submit that
after
receiving the letter from the Registrar calling upon the applicant to
file heads of argument, the applicant should have take
prompt action
to ensure that the errors in the record were rectified. The
applicant did not do so and appears to have taken action
only after
the appeal had been dismissed. The respondents further state that
the applicant has no prospects of success on appeal
and that this
application should therefore be dismissed.







The position is now settled that in an application for the
re-instatement of an appeal which was regarded as abandoned and
deemed
to have dismissed the applicant must show good cause for the
default - Susan Chipo Vera v Mitsui & Company Limited SC
32/04. The requirements that have to be satisfied in an application
of this nature are the same as in an application for condonation
for
late noting of an appeal and for extension of time within which to
file an appeal. These are (i) the extent of the delay (ii)
the
reasonableness of the explanation proferred for the delay and (iii)
the prospects of success on appeal. I will now deal with
each of
these requirements in turn.







THE EXTENT OF THE DELAY



The present application was filed on 4 May 2007. The notice to file
the heads of argument was issued on 7 August 2006 and served
on the
applicant’s legal practitioners on 10 August 2006. The appeal was
then dismissed on 11 September 2006 following the failure
by the
applicant to file heads of argument. The delay in making this
application therefore commenced to run from 11 September 2006
when
the appeal was regarded as abandoned. There was therefore a delay of
just over seven months. Under normal circumstances such
a delay
would be inordinate. However, it is clear in this case that there
were a number of other developments that made it impossible
for the
applicant to comply with the directive given by the Registrar. I
will comment on this shortly.







THE REASONABLENESS OF THE EXPLANATION PROFFERED FOR THE DELAY



There can be no doubt in this case that the record of the proceedings
that was forwarded to the Supreme Court by the Registrar of
the High
Court was incomplete. At a later stage both parties appear to have
accepted that there was need for the record to be corrected
and
re-inspected before it could be forwarded to the Registrar of the
Supreme Court. The death of the respondents’ legal practitioner
complicated the matter further as both parties appear to have
accepted that nothing further could be done until the status of the
firm of which Mr Musimbe had been sole partner had been
clarified. This much is clear from the correspondence entered into
between the two law firms. The
result of these developments was that
no heads of argument were filed in the absence of a proper appeal
record. It appears that
the Registrar of the High Court was advised
of the difficulty but at that stage the record had apparently already
been forwarded
to the Supreme Court. It further appears that no-one
brought these difficulties to the attention of the Registrar of the
Supreme
Court. The Registrar of the Supreme Court then directed the
applicant’s legal practitioner to file heads of arguments. The
applicant’s
legal practitioner did not do so.







That a record of appeal must be complete before submission to the
Supreme Court goes without saying. Rule 15 of the Supreme Court
Rules prescribes how an appeal record is to be compiled. In
particular the record must contain the evidence of the witnesses who
gave evidence during the trial and the Registrar of the High Court
shall be responsible for its preparation. The Registrar is then
required to certify the record before delivering the same to the
Registrar of the Supreme Court. It is only after all this is
complied
with that the Registrar of the Supreme Court would call upon
the appellant’s legal practitioner to file heads of argument in
terms
of Rule 43. In the event that heads of argument are not filed
within 15 days, Rule 44 provides that the appeal shall be regarded
as
abandoned and shall be deemed to have been dismissed.







The need for appeal records to be certified by the Registrar and for
both parties to be involved in the preparation of the record
has been
stressed in a number of decisions of this Court. In Winterton,
Holmes & Hill v Lesley
Patterson SC 115/95 GUBBAY CJ
remarked at p 17:



“I draw attention to r 15(8) of the Rules of the Supreme Court.
This expressly provides that not only the registrar but the legal
representatives of both parties have an obligation to participate in
the preparation of the record. Quite obviously, this is not
being
done. I cannot for a moment believe that this record was prepared
with the sanction of either the appellants or the respondent.







I strongly urge the registrar to refrain from certifying an appeal
record as a true and complete copy until he has called upon the
legal
representatives of the parties to satisfy themselves that it has been
properly compiled and all irrelevant matter excluded
therefrom.







This Court has been faced with poorly prepared records time without
number. They have caused great inconvenience to its members.
I must
warn that if this undesirable practice persists much longer, such
records will be rejected and the appeals postponed.”











It is clear in this case that the letter by the Supreme Court
Registrar directing the applicant to file heads of argument was
predicated
on the existence of an appeal record that was in fact
defective and which had not been properly inspected by both parties.
It was
therefore not possible for the applicant to file heads of
argument based on an incomplete record. It is evident that attempts
were
made by both parties to have the record rectified but this
attempt was made more difficult by the sudden demise of Mr Musimbe.







In all the circumstances, I consider the explanation given to be
reasonable. Given the fact, however, that the applicant was called
upon to file heads of argument by a certain date one would have
expected the applicant’s legal practitioner to have approached
the
Registrar of the Supreme Court to advise of the difficulty the
applicant faced in attempting to comply with the directive. The
legal practitioner appears to have done nothing in response to the
request to file heads of argument. The failure, however, does
not
render the explanation unreasonable. It is apparent that both
parties were aware of the inadequacy of the appeal record. The
Registrar of the Supreme Court was not and as a result called for the
filing of heads of argument when these were not in fact due.







PROSPECTS OF SUCCESS



The court a quo found that the respondents had breached the
agreement by failing to pay the instalments on due date. However the
court found that
in order to terminate the agreement on that basis
the applicant should have forwarded a notice in terms of s 8 of the
Contractual
Penalties Act [Cap. 8:04] by registered post. The
applicant’s case appears to be arguable. I am not required at this
stage to make a definite finding
on the prospects of success. This
is for the appeal court. As stated in Susan Chipo Vera v
Mitsui & Anor
supra:



“The applicant deserves her day in court regardless of the merits
of the case…” (at p 3 of the cyclostyled judgment)







In all the circumstances the application must succeed.







On the question of costs, I consider the suggestion by the applicant
that these should be in the cause to be fair in view of the
fact that
administrative error was largely to blame for the difficulties
experienced in this matter.







It is accordingly ordered as follows:








  1. The appeal be and is hereby reinstated.



  2. The costs of this application shall be in the cause.
















Mandizha & Company, applicant’s legal practitioners



Sakutukwa & Partners, first respondent’s legal
practitioners