Court name
Supreme Court of Zimbabwe
Case number
SC 17 of 2009
Civil Appeal 191 of 2008

Mutizhe v Ganda and Others (191/08) (SC 17 of 2009, Civil Appeal 191 of 2008) [2009] ZWSC 17 (01 April 2009);

Law report citations
Media neutral citation
[2009] ZWSC 17

REPORTABLE ZLR (6)








Judgment
No. 17/09


Civil
Appeal No. 191/08








ELIZABETH
MUTIZHE v (1) LOVENESS AXCILLIA GANDA (2)
THE REGISTRAR OF DEEDS (3)
FANNIE RONNIE
MUTIZHE








SUPREME
COURT OF ZIMBABWE


HARARE,
FEBRUARY 11 & APRIL 2, 2009









J Samkange, for the applicant



G Gafu, for the first respondent



No appearance for the second and third respondents









Before MALABA DCJ: In Chambers in terms of r 31 of the
Rules of the Supreme Court (“the Rules”).







This is an application for an extension of time in which to note an
appeal against the whole judgment of the High Court given
on 27
February 2008.







The applicant and the third respondent were married to each other
until the High Court granted him a decree of divorce on 22
February
2005 in case No. HC 8877/03. The High Court made an order with
regard to the division of the assets of the spouses.







Of relevance to the determination of this application is the fact
that the third respondent was awarded 80% of the market value
of the
matrimonial house situated at Stand No. 2711 Mahogany Circle, New
Marlborough, Harare (“the property”). The applicant
was awarded
20% of the market value of the matrimonial house.







The order further directed that:






“5. If the parties cannot agree on the value of the matrimonial
home within ten (10) days of the date of this order, the property
is
to be evaluated within 30 days thereafter by a registered firm of
Estate Agency agreed upon by the parties’ legal practitioners
or
failing such agreement by an Estate Agent nominated by the Registrar
of this Court.








  1. The cost of evaluation are to be borne by both parties in equal
    shares.









  1. The plaintiff shall pay to the defendant on or before the 1st
    of November 2005, 20% of the net value of the property.








  1. Failing compliance with the provisions of clause 7 above, the
    matrimonial home shall be sold on the open market to the best
    advantage and the net proceeds therefrom to be shared between the
    parties as set out in the paragraph above.”








On 16 June 2004 the applicant had obtained from the High Court an
interdict prohibiting the second respondent from registering
transfer
of the property without her prior written consent.







On 11 August 2005 the first respondent entered into an agreement of
sale with the third respondent in terms of which he sold and
she
purchased the property for $750 000 000.00. She paid the purchase
price to the third respondent’s conveyancers. At the
time she
entered into the agreement of sale, the first respondent was not
aware of the court order awarding the applicant 20% of
the value of
the property. When she subsequently got to know of the order she
raised the question of its possible effects on the
sale of the
property. The third respondent assured her that the order would not
affect transfer of the property into her name
provided the applicant
was paid the 20% share of the value of the property. Upon request by
the third respondent, she authorized
the release of $150 000 000.00
which was 20% of the purchase price into his bank account for payment
to the applicant. The applicant
confirmed in the founding affidavit
that an amount of $149 000 000.00 was paid into her bank account.







After the payment of the purchase price by the first respondent, the
applicant instituted an appeal against the order of the High
Court.
A perusal of the record in case No. HC 8877/03 shows that the appeal
had been noted out of time. It appears that there
was an application
for an extension of time in which to note the appeal which was
granted.







The notice of appeal, however, remained fatally defective for
non-compliance with r 29(1)(d) of the Rules. Under the heading
“Grounds of Appeal” it is stated as follows:







“1. With new evidence before the court, the court a quo’s
apportionment of shares in the matrimonial house called House No.
2711 Mahogany Circle, New Marlborough, Harare is amendable.








  1. Without all evidence the court a quo failed to award Stand
    6839 Borrowdale.”








By no stretch of imagination can it be said that what is stated
constitutes grounds of appeal against the order given by the court
a
quo
on 22 February 2005 in case No. HC 8877/03.





In light of the appeal which the applicant had purported to
institute, the third respondent sought to cancel the agreement of

sale. The first respondent rejected the cancellation and commenced
action in case HC 1545/06 claiming an order against the third

respondent of specific performance of his obligation to transfer the
property into her name. She also claimed an order of upliftment
of
the caveat of 16 June 2004 and eviction of the applicant and all
those claiming the right of occupation of the property through
her.







The third respondent did not appear at the trial to oppose the
claim. A default judgment was entered against him. That had
the
effect of confirming the third respondent’s right to transfer of
the property. The court a quo found that the first respondent
had adduced sufficient evidence to establish her entitlement to an
order of upliftment of the bar.
It granted the order. The decision
took into account the fact that the applicant had not adduced
evidence in opposition of the
granting of the order.







The applicant had defended the claim on the ground that the order
of 22 February 2005 gave her a real right in the property.
The court
held that her right was to have 20% of the proceeds of the sale of
the house. It held that the right was enforceable
against the third
respondent and could not operate to defeat the transfer of the
property to the first respondent in terms of the
agreement of sale.







The judgment was given on 27 February 2008. The Registrar had
given notice to the parties through the roll of the court relating
to
unopposed matters for that day that the judgment was to be handed
down. Whilst the legal representative of the first respondent

attended court to note the handing down of the judgment neither the
applicant nor her legal practitioner attended. No appeal was

instituted against the judgment within fifteen (15) days as is
required by r 30(a) of the Rules.







The applicant averred in the founding affidavit that she had
knowledge of the judgment for the first time on 22 August 2008 when
a
copy of it was served on her by the Deputy Sheriff. On 26 August she
filed a notice of appeal with the Registrar. The document
contained
all the formalities required by r 29 to be stated in a notice of
appeal. Strict compliance with the mandatory requirements
of the
provision of r 29 suggests that the applicant had read the relevant
Rules before noting the appeal.







The notice of appeal was, however, fatally defective because it was
filed six months after the date the judgment appealed against
was
given. Rule 30(a) had not been complied with. No application for
condonation of failure to institute the appeal within fifteen
(15)
days of the date the judgment was given and extension of time in
which to appeal was made in terms of r 31 of the Rules.







The explanation given by the applicant for non-compliance with the
Rules was that she was a self-actor. She said she did not
know that
she was required to make an application for condonation of
non-compliance with r 30(a) and extension of time in which
to appeal.
She said she did not know that the notice of appeal was defective.







On 13 November 2008 the first respondent’s legal practitioners
wrote to the Registrar drawing her attention to the defective
notice
of appeal. The letter was copied to the applicant. Notwithstanding
the fact that the letter made it clear that the effect
of the
defective notice was that there was no appeal against the judgment,
the applicant did not act to regularize the situation.







On 25 November 2008 the Registrar wrote to the first respondent’s
legal practitioners accepting the contention that there was
no appeal
against the judgment of the High Court given on 27 February 2008.
The letter was copied to the applicant. She did not
act immediately
to secure compliance with the rules of court. It was sixteen (16)
days later that the applicant made an application
for extension of
time in which to appeal.







The explanation for failure to act after having been made aware of
the defective notice of appeal and consequences thereof was
again
that the applicant was a self-actor. She pleaded ignorance of the
requirements of r 31.







The factors a court has to consider in the determination of an
application for condonation and extension of time in which to
appeal
have been stated in numerous decisions of this Court and the High
Court. In Maheya v Independent African Church S-58-07 it is
stated at p 5 of the cyclostyled judgment that:






“In considering application for condonation of non-compliance with
its rules the court has a discretion which it has to exercise

judicially in the sense that it has to consider all the facts and
apply established principles bearing in mind that it has to do

justice. Some of the relevant factors that may be considered and
weighed one against the other are: the degree of non-compliance;
the
explanation therefor; the prospects of success on appeal; the
importance of the case; the respondent’s interests in the finality

of the judgment; the convenience to the Court and avoidance of
unnecessary delays in the administration of justice.”











See De Kuszab Dabrowski Uxor v Steel N.O. 1966 RLR 60(A) at
162B-E; Bishi v Secretary for Education 1989(2) ZLR 240(H) at
242D-243C; Director of Civil Aviation v Hall 1990(2) ZLR
354(S).







The period of time marking the delay by the applicant in taking
steps to note a valid appeal is nine months. The right to appeal
is
now dependent on the exercise of the court’s discretion. The
application was made on 8 December 2008. The inordinate delay
may be
divided into three parts. The first part extended from 27 February
to 26 August 2008. The second extended from 27 August
to 25
November. The last part extended from 26 November to 7 December
2008.







The applicant gave different explanations for her inaction during
each of the three periods of delay. In relation to the first
period
of delay, she said that she had no knowledge that the judgment had
been given on 27 February. In respect of her inaction
in the second
part of the period of delay, she said as a self-actor she was not
aware of the requirements of r 30(a). She said
she was also not
aware of the provisions of r 31 providing a remedy to a party who
would have failed to exercise the right to appeal
against a judgment
of the High Court timeously. She had no explanation for her inaction
during the last part of the period of
delay.







Is the explanation of the delay reasonable? Apart from saying she
did not know that the judgment had been delivered on 27 February
2008
the applicant did not say why steps were not taken by her or her
legal practitioners which would have enabled her to acquire
that
knowledge. The court a quo had reserved judgment at the end
of hearing of evidence in the trial of the action. The applicant and
her legal practitioners
were under the duty to make regular inquiries
with the Registrar as to when the judgment would be given. To
provide a reasonable
explanation for compliance with rules of court
it is generally necessary to say why the applicant or his legal
representative failed
to act in a manner a diligent litigant or his
legal practitioner would reasonably have been expected to act.







In Metro International (Pvt) Ltd v Old Mutual
Property Investment Corporation
(Pvt) Ltd S-31-2008
the applicant company could not explain why its legal representative
failed to take necessary steps to get knowledge
of when the judgment
it sought to appeal against had been given. At p 4 of the
cyclostyled judgment it was stated that:






“It is clear that the applicant’s legal practitioners were under
a duty, having taken instructions to represent it in the application

at the High Court, to make regular inquiries at the Registry,
confirmed by letters, as to whether the judgment had been given and

if not, when it was to be handed down. A vigilant litigant
interested in the speedy outcome of the application would have
satisfied
himself that the legal practitioners made regular inquiries
for the judgment. Lack of knowledge of a judgment due to the failure

to make necessary inquiries in circumstances where one is under a
duty to do so cannot be an acceptable explanation for non-compliance

with Rules of the Court. The applicant could not remain inactive
until notification of the judgment was given by the Registrar.”







In this case notification of the judgment given on 27 February 2008
was given to the parties by the Registrar in a Court Roll
of cases to
be dealt with on that day. The applicant and her legal practitioner
did not avail themselves of the official source
of the information on
the delivery of the judgment. In my view, she cannot escape the
consequences of failure to diligently pursue
a judgment that befell
the applicant in Metro International’s case supra.







The explanation of failure to apply for an extension of time in
which to appeal when the applicant got to know of the date the

judgment was given is also unacceptable. The applicant could not
have been ignorant of the requirements of r 30(a) when she drew
up a
notice of appeal which contained all the necessary formalities of a
valid notice of appeal prescribed under r 29.







The letter of 13 and 25 November drew the applicant’s attention
to the fact that no appeal was pending before the Supreme Court

because none had not been instituted within fifteen (15) days of the
date the judgment was given. She was advised of the need
to make an
application for extension of time in which to appeal if she wished to
have the situation regularized. To plead ignorance
of the Rules in
the circumstances on the ground that one is a self-actor is unlikely
to persuade any reasonable Court to hold that
the applicant was not
culpable for the consequences of her own inaction.







There was no explanation for the failure to apply for extension of
time in which to appeal for sixteen (16) days after the applicant

received the letter of 25 November 2008. In the Director of Civil
Aviation
case supra at p 358B-C GUBBAY CJ cited with
approval from Bosman Transport Works Committee & Ors v Piet
Bosman Transport (Pty) Ltd
1980(4) SA 794(A) where at p 799D-E
MULLER JA said:






“Where there has been a flagrant breach of the Rules of this Court
in more than one respect and where in addition there is no
reasonable
explanation for some periods of delay and indeed, in respect of other
periods of delay, no explanation at all, the application
should …
not be granted whatever the prospects of success may be.”







As I am unable in this case to go so far as to hold that the
applicant was in flagrant breach of the Rules of this Court, I have

considered the question whether there are good prospects of the
appeal succeeding despite the finding that there is no reasonable

explanation for the inordinate delay in making the application for
extension of time in which to appeal.







The grounds of appeal were stated as being that:






“1. The court a quo erred at law and in fact in failing to
uphold that the appellant’s appeal in HC 8877/03 had an effect of
suspending the whole
judgment of the High Court in the divorce
proceedings.








  1. The court a quo erred in fact and at law by holding that the
    appellant had no real rights over the disputed property known as
    stand 2711 Marlborough
    Township of Stand 2575 Marlborough Township.









  1. The court a quo misdirected itself by failing to regard the
    appellant’s evidence that the interdict obtained by the appellant
    on 16 June 2004
    had an effect of interdicting any transfer of the
    disputed property pending the determination of the appeal in case
    no. HC 8877/03.








  1. The court a quo erred in fact and at law by failing to uphold
    that the cancellation of the agreement of sale by the third
    respondent was valid
    and lawful.”








One looks at the founding affidavit for evidence of the facts stated
as grounds of appeal. Considering these facts together with
the
reasons for the judgment appealed against and applying the relevant
law, one can decide whether there are good prospects of
success on
appeal.







All that is stated in the founding affidavit on the grounds of appeal
is this. The applicant said:







“20. I strongly believe that there are prospects of success on
appeal. I say so because









    1. As appears from the Notice of Appeal I insist that there was a
      valid and lawful cancellation of the agreement of sale.











    1. I was also not satisfied by the court’s ruling that the issue
      between me and the first respondent was whether or not I had
      a real
      right to the property.










    1. For instance if the appeal court in case No. HC 8877/03 were to up
      my share from the 20% given by the court a quo to a higher
      percentage, this would affect the issues of enforceability of the
      judgment. This aspect is normally addressed
      by way of giving one
      party a time frame within which to pay out the other party of its
      share failing which that property can
      be sold and the proceeds are
      shared.










    1. Assuming the transfers were to be done to the so called innocent
      buyer, and then the appeal court were to up my share, such
      court
      order would be difficult to enforce. The house in a case of this
      nature is a surety that one gets their share.”









Nothing is said in the founding affidavit about the first ground of
appeal. What was stated in the notice of appeal against the
judgment
of 22 February 2005 did not constitute grounds of appeal required
under r 29(1)(d) of the Rules. There would be no valid
appeal
pending in the Supreme Court against the judgment in case HC 8877/03.
In any case the appeal would not have been instituted
against the
whole judgment of the court a quo. There was no appeal
against the order granting the decree of divorce. The court a quo
could not have erred in failing to hold that the appeal suspended the
whole judgment in case HC 8877/03 when in fact the appeal
could not
have had that effect.







It is clear from the founding affidavit that the applicant took issue
with the fact that the court a quo perceived the question in
dispute between her and the first respondent as having been whether
she had real rights in the property.
Contrary to the contention
advanced in argument on her behalf by Mr Samkange, the
applicant was not even claiming that the order of the court in case
HC 8877/03 gave her real rights in the property. She
did not
challenge the fact that the right she was given was 20% of the share
of the value of the house. Her view was that 20%
of the value of the
property was too low. These facts do not render any support to
ground No. 2 of the defective notice of appeal.







The law is to the effect that the person in whose name immovable
property is registered is prima facie its owner. The order of
the court a quo did not alter the fact that as the third
respondent was the person in whose name the house was registered, he
was the sole holder
of the real rights in it. It must be borne in
mind that the rights of spouses in the division, apportionment or
distribution of
assets upon dissolution of marriage, are depended
upon discretionary remedies. In this case in the exercise of the
broad discretion
conferred on it, the court in case HC 8877/03 gave
the applicant a right to 20% of the value of the property as opposed
to 20%
share of the real rights in the property. It was not a share
in a joint ownership of the house. The third respondent could sell

the property to a third party without the consent of the applicant
provided he paid her 20% of the proceeds. That right did not
give
her power to veto the exercise by him of the right to dispose
of all the real rights he alone held in the house as long as the sale
met the conditions
prescribed by the order. There is no basis in
fact on which the allegation in ground No. 2 of the defective notice
of appeal could
be established.







On the third ground the interdict did not in fact have the effect the
court a quo was accused of having disregarded. It preceded
the judgment in HC 8877/03 and did not interdict transfer of the
property pending
determination of the appeal against that judgment.
What the interdict prohibited was the registration of transfer of the
property
without prior written consent of the applicant. In other
words the interdict would have given the applicant an absolute right
to veto the transfer of the property even when the subsequent
order gave her the right to 20% of value of the property with no
power to
veto the sale of the property to best advantage. So
even if the applicant adduced evidence it would not prove that the
interdict had
the effect of prohibiting transfer of the property
pending the determination of the appeal in case No. HC 8877/03.
(The underlining is mine for emphasis)







Nothing of substance was said in the founding affidavit on ground No.
4. Cancellation of a contract is lawful when it is in accordance

with the terms and conditions of the contract between the parties.
It is also lawful where there has been a repudiation of the
contract
which is accepted by the innocent party as a breach relieving him
from future performance of his obligations, otherwise
the innocent
party has a right to elect to accept or reject the unilateral act by
the other party to try and bring a contract to
an end. If he rejects
the repudiation as a breach of contract the innocent party can hold
the other party to his side of the bargain
provided he discharges his
own obligations under the contract.







The court a quo found that the third respondent had not shown
that the cancellation was in terms of the agreement of sale. It
accepted the evidence
of the fact that the first respondent had
elected to reject the cancellation of the contract by the third
respondent as a breach.
The first respondent was found to have held
the third respondent to his side of the bargain. The applicant did
not place before
me facts on the basis of which a determination could
be made to the effect that there were good prospects of ground No. 4
succeeding
on appeal.







The application is accordingly dismissed with costs.











Byron Venturas & Partners, applicant’s legal
practitioners


Scanlen
& Holderness
, first respondent’s legal practitioners