Court name
Supreme Court of Zimbabwe
Case number
SC 19 of 2007
Civil Application 174 of 2005

Kadungure v Kadungure (174/05) (SC 19 of 2007, Civil Application 174 of 2005) [2007] ZWSC 19 (01 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 19
















DISTRIBUTABLE
(12)








Judgment
No. SC 19/07


Civil
Application No. 174/05








INNOCENT
KADUNGURE v CHERYL CHANDI KADUNGURE








SUPREME
COURT OF ZIMBABWE


HARARE,
JUNE 15, & JULY 2, 2007








H
Nkomo
, for the applicant





G
C Chikumbirike
, for the respondent








Before:
ZIYAMBI JA: In Chambers, in terms of rs 5 and 31(7) of the Rules
of the
                                                                 Supreme
Court.







This application should, as I understand it, be
correctly termed an application for an extension of time within which
to note a cross
appeal. However it is headed: “APPLICATION FOR
CONDONATION OF LATE NOTING OF COUNTER APPEAL”.







This Court has reiterated time and time again that it
cannot condone the late noting of an appeal as the appeal so noted is
a nullity.
It does not exist. How can it be condoned? What an
applicant must apply for is an extension of the time within which to
note an
appeal (or cross-appeal as the case may be) and for
condonation of his failure to note an appeal (or cross appeal) in the
time prescribed.
See for example, Passmore Matanhire v BP Shell
Marketing Services (Private) Limited
SC 113/04.







To add to the confusion, the remedy sought according to
the draft order attached to the application is:






“1. The time within which the Applicant is entitled
to note an appeal (my underlining)      against
the judgment  of the High Court in HC4393/00 be and is
     hereby extended by
seven days
from the date of this order.







  1. The
    applicant be and is hereby directed to file and
     serve
    his notice and grounds of counter-appeal within  seven
    days of this order...”.












What should have been sought is an extension of the time
within which to file a cross appeal (not a counter- appeal) and not
an appeal
since an appeal has already been noted by the respondent
against the judgment of the court a quo.







In addition, the papers have not been paginated and
indexed as required by the Rules of this Court (“the Rules”) and,
because
of the volume thereof, make difficult reading.







The above begins the sad litany of errors which have
beset this application. The history of the matter is as follows.
The judgment
was delivered on 8 June 2005. On the same day, so the
applicant avers, instructions were given to his then legal
practitioner, to
appeal against part of the judgment. The last day
for filing a notice of appeal in terms of the Rules was 29 June 2005.
Indeed,
the respondent filed a notice of appeal against part of the
judgment on 10 June 2005 and served a copy on the applicant’s legal
practitioners. One would think that this would have alerted the
applicant’s legal practitioner to the fact that he must file a
cross- appeal. The Rules (rule 33(1)) provide that this must be done
within ten days of entry of the appeal. Thus the cross-appeal
should
have been filed by 24 June 2005.







No cross-appeal was filed. Instead, a notice of appeal
was filed by the legal practitioner which was out of time by one
month and
five days on 1 August 2005.







Rule 34 of the Rules of this Court require an appellant
to pay for the costs of the record or give to the Registrar an
undertaking
that such costs will be paid. This was not done. Nearly
one year later, on 3 July 2006, the Registrar wrote to the
applicant’s
legal practitioners advising them that the “appeal”
had lapsed. This provoked some reaction. With a greater degree of
diligence
than displayed formerly, the legal practitioner, on
24 July 2006, filed an application for reinstatement of the appeal
albeit some three weeks after the notification by the Registrar.
No
explanation is given by the applicant as to why it took three weeks
for that application to be filed.







In due course the matter came before me and, there being
no appeal to be reinstated, the application was denied. The
Registrar advised
the applicant’s legal practitioners of the result
of the application on 2 October 2006. Immediately upon receipt of
the letter
and with amazing alacrity considering his history of
inaction in this case, the legal practitioner, on 4
October 2006, wrote to advise the Registrar in the following
terms:







“Your letter of 2 October 2006 refers.







You will note that the written judgment was not
available on 8 June 2005 as can be seen from the appellant’s Notice
of Appeal filed
of record in our court application as annexure A.







We respectfully point out that the judgment was only
made available on 20 July 2006 as appears from the date stamp from
the High Court.
The appeal was accordingly filed within the
requisite time period, a fact which you, by implication,
acknowledged.







We would be grateful if you could draw this to the
attention of the Honourable Judge.”







Thereafter there was a period of silence from 4 October
2006 to 28 March 2007 when the instant application was filed - a
period of
in excess of five months in respect of which the applicant
gave no explanation in his affidavit.







There was no explanation as to how the applicant came to
be represented by its present legal practitioners and when. In
short, there
was no explanation for the applicant’s inaction for
five months.







It is now more than two years since the respondent filed
its notice of appeal and served it on the applicant. The delay is
inordinate.







The only explanation proffered by the applicant for the
default is that his legal practitioner was of the belief that the
time for
noting an appeal in this Court was fifteen days from the
date on which he had sight of the written judgment. This belief is
unfounded
as the Rule clearly states that time begins to run from the
date of the judgment.







Rule 30 of the Rules of the Supreme Court of Zimbabwe
(‘the Rules’) provides as follows:







“30. Time for entry of an appeal







An appellant shall institute an appeal within the
following times -







(a) if leave to appeal is not necessary, by serving
notice of appeal within                  
fifteen day  of the date of the judgment appealed against.”







The time is reckoned from the date of the judgment. How
can anyone, let alone a legal practitioner, read into the words “date
of
judgment” the meaning “date one has sight of the judgment”?
If the judgment or order is delivered orally then the date of
judgment is clearly the date of such oral delivery. If the judgment
is handed down in written form the ‘date of judgment’ is
the date
of such handing down. This is elementary knowledge which every legal
practitioner should have at his finger-tips. Yet
infringement of
this Rule carries on unabated despite the fact that the attention of
legal practitioners continues to be drawn to
the provisions of
thereof. As a result, many ‘appeals’ are being struck off the
roll with costs which are most likely being borne
by the appellants.







Also, r 33 of the Rules clearly states that once an
appeal has been noted the respondent may file a cross appeal.




Rule 33 provides:







“(1) When an appeal has been instituted the respondent
shall be entitled, within ten days of the entry of appeal in terms of
r 29,
to enter a cross-appeal.”







Needless to say, the legal practitioner was also
unaware of this Rule hence the noting of an appeal as opposed to a
cross-appeal.
Not only was the applicant’s legal practitioner
remiss in failing to file a cross-appeal within the time prescribed
by the Rules,
but when it was pointed out to him by the Registrar
that his action in filing an appeal outside the fifteen days allowed
was a nullity,
he sought to argue with the Registrar the correctness
of his actions without attaching any authority in support of his
allegations.
There is, of course, no such authority, but where a
legal practitioner has been alerted in such a manner of the
incompetence of
his actions, I would expect the legal practitioner to
back up with relevant authorities his argument to the contrary. Not
so in
this case. Instead, there was a long silence of five months
and then this application was filed with no explanation as to the
reason
for that delay. Accordingly, the explanation for the default
is inadequate and in respect of the five months preceding the
application,
non-existent.







There can hardly be a worse example of disdain for the
Rules of Court or incompetence and lack of diligence by a legal
practitioner.
It is deplorable that the Rules of Court are not
studied or taken seriously by the legal practitioners who practise in
those courts.
It is part of a legal practitioner’s legal duty to
his client to ensure that he is well versed in the Rules of the court
in which
he appears on behalf of his client. Not to be conversant
with the Rules constitutes, in my view, gross negligence on the part
of
a legal practitioner vis-a-vis his client.







But there is a further enquiry to be undertaken here and
that is whether, in this case, the negligence of the legal
practitioner ought
to be visited on his client. The applicant does
not deny knowledge of his appeal having lapsed, nor the fact that he
deposed to
an affidavit requesting that the appeal, which he believed
to have been properly noted, be reinstated.







There is a certain degree of watchfulness which is
expected of a client who has given instructions to his legal
practitioner to act
on his behalf. He is obliged to take an active
part in ensuring that his case is being prosecuted with due
diligence. There is
a degree to which he cannot sit back and leave
the matter in the hands of his legal practitioner. He must ensure
that he is being
kept informed of the progress of his case and change
his legal practitioner if necessary in order to ensure that his case
receives
the attention it deserves. He must exercise vigilance if he
is not to suffer the consequences of his legal practitioner’s
incompetence
and negligence.







The applicant, judging by his averments in his
affidavit, was aware of the misdemeanors of his legal practitioner.
He was aware of
the lapsing of the appeal on or about 3 July 2006.
He deposed to an affidavit on 24 July 2006 in an application in which
he sought
the reinstatement of the appeal. There is no explanation
as to why it took as long as three weeks before the application for
reinstatement
was filed.







As was pointed out by Mr Chikumbirike for the
respondent, letters from the office of the Registrar of the Supreme
Court are not posted but placed in the pigeon-holes of
the respective
legal practitioners and collected therefrom by the legal
practitioners. The applicant proffered no explanation for
the gap of
three weeks. When that application was refused, notification to the
applicant was given on 2 October 2006. There followed
the long and
unexplained silence from 2 October 2006 to 26 March 2007 when this
application was filed.







Certainly the applicant has displayed no desire to
pursue his appeal or he would have taken some remedial action once he
learned of
the blunderings of his legal practitioner first with the
lapsing of the appeal due to non-compliance with the Rules and then
with
the application for reinstatement of the non-existent appeal.
In my view, no case has been made out for the exoneration of the
applicant
from the inaction, incompetence and lack of diligence of
his legal practitioners.







Further, in a case of this nature, regard is usually had
to the prospects of success on appeal as being one of the factors to
be taken
into account in determining whether to grant an application
for extension of time within which to appeal.







The applicant has made no effort to present a case by
which one could be persuaded that there are reasonable prospects of
success
on appeal. The main ground of appeal alleged in the draft
notice of appeal attached to the application is that the learned
Judge
failed to properly take into account the relevant factors in s
7(4) of the Matrimonial Causes Act. The applicant takes issue with
the grant by the learned Judge of a 30% share of the matrimonial home
to the respondent on the grounds that the learned Judge did
not “take
into proper consideration” the fact that the respondent had
acquired two immovable properties during separation, documentary
evidence of which the court wrongly excluded. However, the learned
Judge in her judgment said the evidence was not properly before
the
court and she could therefore not take it into consideration. It
seems to me that, far from establishing that the apportionment
was
unjust, the applicant appears to have benefited from it, in that the
applicant sold a “Borrowdale stand” in respect of which
the court
was of the view that the respondent should have been awarded a 30%
share but the court declined to make that award on the
grounds that:




“The amount for which it was sold was not disclosed to
the court. The court thus does not have sufficient evidence upon
which an award
may be made in respect to this property.”











Where there is such an inordinate delay in complying
with the Rules of court, as is the case with the instant matter, an
applicant
must show that the prospects of success are strong. In
casu, the applicant has failed to satisfy me that there are
reasonable, let alone strong, prospects of success on appeal.







In the result the application is dismissed with costs.



















Mtetwa & Nyambirai, applicant’s legal
practitioners



Chikumbirike & Associates, respondent’s
legal practitioners