Brian Makwabarara v (1) City of Harare (2) Mr E. Nyakurerewa (3) Mrs L. Johnson (4) Newton Spicer

### Preamble
Judgment No. SC 139/20
Chamber Application No. SC 355/20
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REPORTABLE	(131)

BRIAN     MAKWABARARA

v

(1)     CITY     OF     HARARE     (2)     MR     E.     NYAKURERWA     (3)     MRS     L.     JOHNSON     (4)     NEWTON     SPICER

SUPREME COURT OF ZIMBABWE

MATHONSI JA

HARARE: SEPTEMBER 16, 2020 & OCTOBER 21, 2020

IN CHAMBERS

O.R.G. Zhuwarara with Ms K. Muzidza, for the applicant

Ms K.P Kaseke, for the first respondent

B. Diza with Ms. T. Chipato, for the second respondent

B. Waston, for the third respondent

MATHONSI JA:	This is an application for condonation and, extension of time within which to file an application for the reinstatement of an appeal filed by the applicant against the judgment of the Administrative Court upholding the granting to the second respondent by the first respondent, of a permit to subdivide a property. The application is made in terms of r 70 of the Rules of this Court.

THE FACTS

What is at the heart of the dispute is a wrangle between the parties over the subdivision of a residential stand being Lot 1 of Lot 3, Colne Valley Chisipite, Harare.  The property is owned by the second respondent who applied to the first respondent, as the local authority managing the city of Harare, for a permit to subdivide the 6991 ha property into three residential stands.  The application for a subdivision permit was made in terms of s 40 of the Regional, Town and Country Planning Act [Chapter 29:12] (the Act).

When a public notice of the application was given, the applicant, the third and the fourth respondents filed written objections to the subdivision. Subsequently, the first respondent granted the application to subdivide and issued a subdivision permit to the second respondent on 22 October 2018.  The applicant was aggrieved by that decision and launched an appeal to the Administrative Court.  The court found that, in granting the subdivision permit, the first respondent had complied with the provisions of s 40 of the Act.

It was the finding of the Administrative Court that s 40 only requires the local planning authority, which has received objections to an application for a subdivision permit, to notify the applicant for a permit of the objections.  It found further that there is no co-relating requirement in the Act for the local planning authority to then notify the objectors, as had been argued by the present applicant.  The appeal was dismissed.

Again the applicant was dissatisfied.  He lodged an appeal to this Court under case number SC 423/19 on 22 July 2019.  By letter dated 12 November 2019, which was received by the applicant on the same date, the Registrar of the Administrative Court advised the applicant to pay within 5 days the sum of $2 996-00, being the cost of preparing the appeal record.  The period within which the applicant was required to pay for the appeal record expired on 19 November 2019.

As the applicant did not pay for the record, the Registrar of this Court was advised of the failure to pay on 22 November 2019. By letter dated 29 May 2020, which was served on the applicant’s legal practitioners on 1 June 2020, the Registrar of this Court advised the applicant that in light of his failure to pay for the record, his appeal was deemed abandoned and dismissed in terms of the Court Rules.

In terms of r 70 (2), where an appeal is deemed to have lapsed or abandoned, the appellant may, within 15 days of receiving notification from the Registrar, apply for the reinstatement of the appeal on good cause shown.  The applicant had until 22 June 2020 to file an application for reinstatement of the appeal.  He failed to do so.

In fact, the applicant only filed a defective application for reinstatement of the appeal on 29 June 2020 under case No. SC 267/20 way out of time without even seeking condonation for failure to act timeously.  The applicant also  failed to serve that application on the respondents as required by r 39 (2). The applicant was forced to withdraw the ill-fated application.

The present application was not filed until 18 August 2020.  By then, the application was two months out of time.  If granted condonation, the applicant would want to then file a separate application for reinstatement of the appeal.  On his failure to pay for the appeal record, the applicant’s legal practitioner who deposed to the founding affidavit, blames the receptionist who did not bring the notice to his attention.

The receptionist, Fortunate Mashonganyika, who says she is employed as an office administrator, states that she does not “specifically remember receiving the letter” from the Registrar of the Administrative Court because she receives a lot of “communications” every day.

Regarding his failure to file the application for reinstatement of the appeal within time, and instead filing a defective one out of time on 29 June 2020, the legal practitioner does not say anything.  He only attaches a supportive affidavit of Coster Chidzana, a clerk employed by his firm, to say that after filing the application for the reinstatement of the appeal on 29 June 2020, he had “a lot of documents to deliver” that day.  He therefore “forgot” to serve it on the respondents.  But then, that would be cold comfort because that application was filed out of time anyway.

For his part, the legal practitioner says he was unable to observe the time frames within which to act because he managed “a large port -folio of matters”.  He blames pressure of work.

The applicant would like to be allowed to file an application for reinstatement of the appeal because the Administrative Court adopted a simplistic interpretation of s 40 (4) of the Act.  In so doing, it incorrectly concluded that his right to be heard as expressed by the audi alteram partem rule had not been infringed by the local authority’s failure to accord him an opportunity to respond to the response made by the second respondent to his objections to the application for a sub-division permit.  The proper approach would have been for the first respondent to conduct a formal hearing before arriving at a decision.

The application for condonation is opposed by the first and second respondents. The third respondent, who was represented by her husband, did not file any papers relating to this application and only attended as an observer.  The first and second respondents took the view that no reasonable explanation is given for failure to abide by the Rules and that the intended appeal enjoys no prospects of success. The application should therefore fail.

THE LAW

The law on condonation is settled now.  A party that fails to comply with the Rules of court is required to apply for condonation for the failure to do so. Condonation is an indulgence granted by the court when it is satisfied that there is good and sufficient cause for condoning the non -compliance with the Rules.

Good and sufficient cause is established by considering cumulatively the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal usually referred to as the prospects of success. See Bonnyview Estate (Pvt) Ltd Zimbabwe Platinum Mines (Pvt) Ltd  & Anor SC 58/18; Mzite v Damafalls Investments (Pvt) Ltd Anor SC 21/18.

It is important to appreciate that condonation is not there for the asking.  That is the view expressed by ZIYAMBI JA in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society SC 34/17:

“An applicant who has infringed rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction.  He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.  An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

APPLICATION OF THE LAW TO THE FACTS

The extent of the delay and reasonableness of the explanation.

In terms of the Rules, having been notified of the fate of his appeal on 1 June 2020, the applicant had until 22 June 2020 to submit an application for reinstatement of the dismissed appeal.  He did not do so.  The defective application for reinstatement, which was later withdrawn, was filed on 29 June 2020 out of time.  The applicant is required to give a satisfactory explanation, firstly, for failure to act by 22 June 2020 and secondly, for his inaction between that date and 18 August 2020 when the application was finally filed.

This is because what calls for an acceptable explanation is not just the delay in submitting the appeal but also the delay in seeking condonation.  See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) at 251 C -D. All the infractions committed by the applicant are attributable to the tardiness of the legal practitioner of his choice.

This is a legal practitioner who received a notice to pay the costs of the appeal record but did not act upon it until the appeal was dismissed.  The explanation that the receptionist receives too many documents every day and therefore cannot account for the notice that she date-stamped is completely unacceptable.  The same applies to the explanation rendered, not only for failure to serve the initial application for reinstatement, but also the failure to file the present application for a whole period of two months.

While the delay of two months is itself not in- ordinate, for the legal practitioner to tell the court that he could not act because he runs a huge portfolio of matters is simply disingenuous. It is unacceptable.  Those with limited capacity should not over-subscribe themselves at the expense of their clients. But then, this is a legal practitioner of the applicants choosing, it being his constitutional right to be represented by a legal practitioner of his choice.

In our law, there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioners’ lack of diligence or the insufficiency of the explanation tendered.  It has been stated in the past that to hold otherwise may have a disastrous effect on the observance of the rules of court. The court should not invite laxity from legal practitioners. See Kombayi v Berkhout 1988 (1) ZLR 53 (S) at 58B; Machaya v Muyambi SC 4/05; Musemburi & Anor v Tshuma 2013 (1) ZLR 526 (S).

The legal practitioner involved displayed a lamentable lack of diligence from which the applicant cannot escape.  We have here a repeat offender who has treated the rules of court with disdain repeatedly.  What is more, he has separated this application from the application for reinstatement meaning that even if this application succeeds, that will not be the end of the matter.  The applicant will have to file a fresh application for reinstatement of the appeal. That is not a diligent deployment of the process of the court as it unduly delays finality.  I therefore conclude that there exists no acceptable explanation for the delay.

THE PROSPECTS OF SUCCESS ON APPEAL

It is equally settled that where no acceptable explanation for non-compliance with the rules of court has been given, an applicant for condonation must show very good prospects of success on appeal.  Before an applicant can be condoned, there must be an arguable case on appeal.  See Khumalo v Mandeya & Anor 2008 (2) ZLR 203 (S); S v Tengende & Ors 1981 ZLR 445; Mahachi v Barclays Bank of Zimbabwe SC 6/06.

I must make the point that I am not sitting to determine the appeal itself.  The duty of the judge in an application of this nature is to evaluate the grounds of appeal to be relied on to see whether the appeal is arguable.  It is the function of a gatekeeper, to keep out those applicants who do not have arguable cases. See Prosecutor General v Intratek & Ors SC 59/19. The applicant intends to argue before the Supreme Court that s 40 (4) of the Act affords him an opportunity to respond or rebut the views of the Town Planning Consultant used to respond to his objection to the subdivision.

Further, the position of the applicant is that the first respondent was required by that provision to conduct a formal hearing to allow him and other interested parties the opportunity to motivate their cases. To the applicant, the Administrative Court should have found that there was a violation of the audi alteram partem rule.

SECTION 40 (4) provides:

“If any objections to, or representations in connection with, an application in terms of subsection (1) are received by the local planning authority-

within one month of the date on which public notice of the application was given in terms of subsection (3); or

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the local planning authority shall advise the applicant of the nature of the objections and representations and afford him an opportunity of submitting any comments thereon before the application is determined.”

(The underlining is for emphasis).

As already stated, it was the finding of the Administrative Court that the provision does not require the local planning authority to advise the objectors of the response to the objection. In arriving at that conclusion, the Administrative Court was giving the words used in the section their literal grammatical meaning, which is the cornerstone of statutory interpretation.

The interpretation so given can only be attacked, as the applicant suggests, by reading into the section what is not contained therein.  It is unlikely that the Supreme Court would interfere with the interpretation given to the section by the Administrative Court by reading into s 40 (4) that which is not there.

The Administrative Court also made certain factual findings which the applicant intends to challenge on appeal. These relate to the findings made to the effect that before granting the application for subdivision, the local planning authority had taken into account the objections made by interested parties including the applicant.  An appeal court will not interfere with factual findings of that nature unless the decision is irrational.  The view is expressed in Zinwa v Mwoyounotsva 2015 (1) ZLR 935 (S) at p 940E –F, that the appeal court will only interfere where it is shown that the factual findings were grossly unreasonable.

In my view the applicant has not shown that there is a basis for interference. In the absence of a basis for interference the appeal court may not interfere.  That being the case, I am of the firm view that the proposed appeal is not arguable.  I am therefore unable to exercise my discretion in favour of the applicant.  The application has no merit.

Regarding the issue of costs, I see no reason why the usual position that costs follow the result should not prevail.

In the result it is ordered that the application be and is hereby dismissed with costs.

Mawere Sibanda Commercial Lawyers, applicant’s legal practitioners

Kanokanga & Partners, 1st respondent’s legal practitioners.

Mhishi, Nkomo Legal Practice, 2nd respondent’s legal practitioners.