Benjamin Rukanda, Lucia Matibenga, People's Democratic Party (Matibenga's Breakaway Party) v The Registrar of the Supreme Court, Kucaca Ivumile Phulu, Settlement Chikwinya, Willias Madzimure, Regai Tsunga, Chelesile Mahlangu, Tendai Laxton Biti, People's Democratic Party, Jacob Mudenda N.O., The Parliament of the Republic of Zimbabwe, The Zimbabwe Electoral Commission

### Preamble
Judgment No. SC 112/22 1
Chamber Application No. SC 10/22
REPORTABLE (97)
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REPORTABLE (97)

(1)     BENJAMIN     RUKANDA     (2)     LUCIA     MATIBENGA

(3)      PEOPLE’S     DEMOCRATIC     PARTY     (Matibenga’s Breakaway Party)

v

(1)     THE     REGISTRAR     OF     THE     SUPREME     COURT     (2)     KUCACA      IVUMILE     PHULU     (3)     SETTLEMENT     CHIKWINYA     (4)     WILLIAS       MADZIMURE     (5)     REGAI     TSUNGA     (6)     CHELESILE     MAHLANGU

(7)     TENDAI      LAXTON      BITI   (8)     PEOPLE’S     DEMOCRATIC     PARTY      (9)     JACOB     MUDENDA     N.O     (10)     THE     PARLIAMENT     OF     THE      REPUBLIC     OF     ZIMBABWE     (11)     THE     ZIMBABWE     ELECTORAL     COMMISSION

SUPREME COURT OF ZIMBABWE

HARARE:  31 JANUARY 2022 & 1 FEBRUARY 2022

S. Simango for the applicants

S. M. Hashiti and M. Ndlovu for the first to eighth respondents

K. Tundu for the ninth to tenth respondents

T. Kanengoni for the eleventh respondent

IN CHAMBERS

UCHENA JA:

This is a chamber application in which the applicants applied in terms of r 13 of the 2018 Supreme Court Rules, for the setting aside of the Registrar’s  act of advising the parties that the applicants’ appeal  against the High Court’s decision in HC 1348/21 had in terms of r 55 (6), been deemed abandoned and dismissed.

After hearing the parties I set aside the Registrar’s erroneous communication and reinstated the applicants’ appeal. I indicated that reasons would follow. These are they.

THE FACTS

The applicants noted an appeal to this Court against the decision of the High Court in HC 1348/21. The parties thereafter appeared before the Registrar in terms of r 55 (2), for the determination of the amount the applicants had to pay as security for the respondents’ costs. The Registrar determined the amount the applicants had to pay as the respondents’ security of costs and the period within which it was to be paid.

Believing that the applicants had failed to pay the respondents’ security of costs within the period she had prescribed the Registrar on  16 December 2021, advised the parties that the applicants’ appeal had, in terms of r 55 (6), been deemed abandoned and dismissed.

In response the applicants submitted proof that they had paid the respondents’ security of costs within the period stipulated by the Registrar.

The Registrar by letter dated 5 January 2022 admitted that she had erroneously advised the parties that the applicants’ appeal had been deemed abandoned and dismissed.  She, in her report, explained that because a number of officers in her registry had tested positive to Covid 19, her office was operating on skeletal staff leading to the delayed movement of documents. In her letter dated 5 January 2022 she advised the applicants that she could not reverse her act because she was functus officio and that their remedy was an application in terms of r 13.

Immediately thereafter the applicants applied for the setting aside of the Registrar’s erroneous communication to the effect that the applicant’s appeal had been deemed abandoned and dismissed and the reinstatement of their appeal.

SUBMISSIONS BY THE PARTIES

Second to Eighth   and Ninth to Eleventh Respondents’ Submissions on Preliminary Issues

Mr Hashiti for the second to the eighth respondents submitted that the applicants’ application was not properly before the court because r 13 is not applicable to the reinstatement of the applicant’s appeal. He submitted that the applicants should have applied for the reinstatement of the appeal in terms of r 70 of the Supreme Court Rules 2018. He further submitted that the applicant should also have applied for condonation. He therefore submitted that the application should be struck off the roll with costs.

Mr Tundu for the ninth and tenth respondents and Mr Kanengoni for the eleventh respondent submitted that their clients will abide by the decision of the court on the preliminary issues.

APPLICANTS’ SUBMISSION ON PRELIMINERY ISSUES

Mr Simango for the applicants submitted that r 13 is the correct procedure to be followed when a litigant is aggrieved by an act, decision or order of a Registrar other than an act, order or decision at the direction of a Judge.

After hearing the parties on the second to eighth respondents’ preliminary issues I

dismissed them and indicated that reasons for my decision will be in the judgment on the merits.

APPLICANTS’ SUBMISSIONS ON MERITS

Mr Simango for the applicants submitted that the applicants paid the respondents’ security of costs within the time ordered by the Registrar and that the Registrar had by letter dated 5 January 2022 admitted that applicants paid security of costs timeously. He submitted that at law the appeal had not been deemed abandoned and dismissed as the factors which trigger the abandonment and dismissal of an appeal had not occurred. He submitted that the Registrar can only advise the parties of what had been triggered by the operation of the law. He further submitted that where the Registrar advises the parties of what the law has not done her erroneous act must be set aside and the appeal be reinstated.

SECOND TO EIGHTH RESPONDENTS’ SUBMISSION ON THE MERITS

Mr Hashiti for the second to the eight respondents submitted that the issue for

determination was whether the applicants had furnished security for the respondents’ costs to the Registrar’s office by 8 December 2021 which was the due date. He submitted that the applicants had failed to do so when they had an obligation to furnish proof of payment to the Registrar. Counsel submitted that the applicants’ failure to furnish proof of payment of the respondent’s security of costs after payment in terms of r 55 (5) justified the dismissal of the appeal.  He further submitted that the application should be dismissed as the draft order did not comply with the rules.

NINTH TO ELEVENTH RESPONDENTS’ SUBMISSIONS ON THE MERITS

Mr Tundu for the nineth and tenth respondents and Mr Kanengoni for the eleventh

respondent submitted that their clients will abide by the decision of the court.

THE LAW

Rule 55 (6) on which the Registrar relied when she advised the parties that the

applicants’ appeal had been regarded as abandoned and deemed to have been dismissed provides as follows:

“55 (6) If the applicant who is required to furnish security for the respondent’s costs of appeal fails to furnish such security within the period specified in subrule (5), the appeal shall be regarded as abandoned and shall be deemed to have been dismissed.”

It is clear that an appeal can only be regarded as abandoned and deemed to have

been dismissed if the following factors have occurred:

The appellant has failed to furnish security for the respondent’s costs.

Within the period specified in terms of subrule (5) of r 55.

The occurrence of these factors on their own without any act on the part of the

Registrar trigger the regarding  of the appeal as having been abandoned and the deeming of its having been dismissed. If the factors on which the appeal can be regarded as having been abandoned and its being deemed to have been dismissed have not occurred the operation of the law cannot be said to have been triggered. The law cannot be activated or be triggered into operation by circumstances other than those for which it was enacted. Therefore any erroneous pronouncement by the Registrar in terms of r 55 (6) that the appeal is regarded as having been abandoned and deemed to have been dismissed will be contrary to the law and a nullity which the provisions of r 13 provides should be set aside.

(18)  	Rule 13 of the 2018 Supreme Court Rules provides as follows:

“(1) 	Any person aggrieved by any act, order or decision   of a registrar, other than an act performed or order or decision made at the direction of a judge, may apply to have such act, order or decision set aside.

(2)	An application in terms of subrule (1) shall be by chamber application served on the registrar and any other person interested in the matter and shall state clearly and specifically the grounds on which it is sought to have the act, order or decision set aside.

(3)	The Registrar shall report on the application and shall serve copies of his or her report on the applicant and any person cited as co-respondent.

(4) On receipt of a copy of the report referred to in subrule (3), the applicant and co-respondent may file submissions in relation to any matter arising there from and thereafter a Judge shall hear the application and may make such order in the matter as he or she may think fit.”

Subrule (1) provides for an application by any aggrieved person for the setting aside of the Registrar’s acts, orders or decisions made by him or her other than at the direction of a Judge. The application is therefore for the setting aside of the registrar’s own acts orders or decisions. It entitles the aggrieved person to apply against a wide range of the Registrar’s conduct other than conduct triggered by a direction of a Judge.

The rule does not state the period within which the application should be made.

This means the application can be made at any time without the need for an application for condonation.

(21) 	Subrule (2) provides that the aggrieved person’s    application shall be by way of a chamber application stating the reasons why the Registrar’s act, order or decision should be set aside.

(22) Subrule (3) provides that the Registrar shall   submit a report on receipt of the aggrieved person’s application which shall be served on the applicant and the Registrar’s co-respondents.

(23)  Sub rule (4) provides for the filling of submissions by the parties and the hearing of the application by a Judge who is given a wide discretion as to what orders he or she may make. The use of the words “may make such order in the matter as he or she may think fit” gives the Judge a wide discretion to give orders which if the Registrar erred should have the effect of correcting the Registrar’s error and its effects on the parties.

(24) 	The intention behind r 13 is to expeditiously and inexpensively rectify the Registrar’s errors. The rule should in my view be further simplified to achieve the objective especially in cases where the Registrar will have conceded that he or she erred.

APPLICATION OF THE LAW TO THE FACTS

(25)	The provisions of r 13 (4) entitles a Judge to reinstate an appeal if the Registrar erroneously regarded it as abandoned and deemed it to have been dismissed by operation of the law when the law has not done so and still regards the appeal to be extant. The correct position at law is if the law is erroneously construed by the Registrar to have triggered the appeal to be regarded as having been abandoned and deemed to have been dismissed the status of the appeal will not have changed because the operation of the law will not have been triggered by the factors of r 55 (6) to do so. The law is not triggered by the opinions of individuals but by the occurrence of the factors for which it was enacted to regulate. At law nothing has happened to the applicants’ appeal hence the need to reinstate it for purposes of administratively correcting the Registrar’s erroneous communication.

(26) 	I agree with Mr Simango that the application was correctly made in terms of r 13. Rule 13 is a self- contained procedure for the rectification of the Registrar’s erroneous acts, decisions or orders other than those made on the directions of a Judge. It is for these reasons that I dismissed the second to eighth respondents’ preliminary issues that the applicants had incorrectly approached the court in terms of r 13 and should have sought condonation before making the application.

(27) 	The issue in this case is whether the Registrar erred when she advised the

parties that 	the applicant’s appeal had been regarded abandoned and had been deemed dismissed and whether or not her act should be set aside and the appeal be reinstated.

(28) 	It is common cause that the registrar in her letter to the applicant and her report conceded that the applicant paid the respondent’s security of costs within the period she had specified. She also conceded that the proof of payment was not in the record and in her office’s computers because her office was operating on skeletal staff leading to the delay in the processing of documents.

(29)	There is therefore no doubt in my mind that the Registrar’s act of informing the parties that the applicants’ appeal had been regarded as abandoned and deemed dismissed was erroneous and should be set aside.    It is also apparent that the applicants’ appeal should not have been regarded as having been abandoned and deemed dismissed as the factors which could have triggered that eventuality had not occurred.

(30) 	The facts establish that the applicants’ appeal should not have been regarded as

abandoned and deemed dismissed because the applicant had complied with the registrar’s order, that he should pay the respondent’s security of costs within thirty days.  I therefore exercised my discretion in terms of r 13 (4) and set aside the Registrar’s erroneous communication and reinstated the applicant’s appeal.

(31) 	It is for these reasons that I set aside the Registrar’s erroneous communication and reinstated the applicants’ appeal.

Nyikadzino, Simango & Associates, applicants’ legal practitioners

Tendai Biti Law, 2nd to 8th respondent’s legal practitioners

Chihambakwe, Mutizwa & Partners, 9th respondent’s legal practitioner

Nyika Kanengoni & Partners, 10th respondent’s legal practitioners