Cape Valley Properties (Private) Limited & 2 Ors v Isaac Chiduku & 3 Ors

### Preamble
Judgment No. SC 113/23
1
Chamber Application No. SC 356/23
---------


REPORTABLE (113)

CAPE     VALLEY     PROPERTIES     (PRIVATE)     LIMITED     (2)     DROWACK     INVESTMENTS     (PRIVATE)     LIMITED     (3)     AMOS     CHIDUKU

v

ISAAC     CHIDUKU     (2)     JECONIAH     CHIDUKU     (3)     NOREEN     CHIDUKU     (4)     REGISTRAR     OF     THE     SUPREME     COURT

SUPREME COURT OF ZIMBABWE

HARARE, 24 JULY 2023 & 31 OCTOBER 2023

E. Mubaiwa, for the applicants

T. Mupangwa, for the respondents

IN CHAMBERS

UCHENA JA

[1]	This is an opposed chamber application for condonation for non-compliance with r 55 (5) of the Supreme Court Rules 2018, and the reinstatement of the applicants’ appeal under SC 219/23 which was by operation of law deemed abandoned and dismissed in terms of r 55 (6).  The reinstatement is being sought in terms of r 70 (2) of the; afore-said rules.

BACKGROUND FACTS

[2]    The first and second applicants, are the third applicant’s business partners.  They entered into an agreement to develop and sell stands, from a piece of land owned by the third applicant and his siblings, the first to the third respondents.  The fourth respondent is the Registrar of this Court.

[3]	The dispute between the parties arose over the distribution of a certain piece of land in Hartley known as Swallowfield of Johannesburg, measuring 127, 6238 hectares held under Deed of Transfer number 5157/99 (hereinafter referred to as (“the undivided piece of land”).  The land originally belonged to the third applicant and the first to the third respondents’ late father.  It was subsequently registered in equal 50% shares in the third applicant and first respondent’s names but in trust on behalf of their late father’s family.

[4]	Eventually the siblings as beneficiaries of their late father’s estate by Deed of Settlement agreed to share the land equally, such that each beneficiary would get a 20% share of the land. The third applicant and the first respondent had each abandoned the 50% shares they held in trust.  Thereafter the third applicant reclaimed his original 50% share in the undivided piece of land and alleged that he does not recognize the shares of the other beneficiaries except the share of the first respondent.  The first to the third applicants started advertising stands subdivided from that piece of land for sale.

[5]	The first to the third respondents filed an urgent chamber application for a provisional interdict in terms of which they sought the prohibition of the first to third applicants from advertising any stands for sale.  They also sought for the prohibition of the first to the third applicants from collecting proceeds of the sale of stands relating to and or dealing with the stands and in whatever form or manner prejudicial to respondents’ interest therein pending the determination of the dispute on the return date.  On 28 December 2022, the High Court granted the provisional order on the basis that the parties had made an agreement which could not be terminated to the prejudice of the ther beneficiaries.

[6]	Aggrieved by that order, the applicants filed an appeal under SC 141/23 against the granting of the provisional order.  On 30 January 2023, the first   to the third respondents filed an urgent chamber application for leave to execute the provisional order pending the determination of the noted appeal.  In determining the application the High Court granted the following order:

“1.	The provisional order granted by this court in HC 8561/22 shall remain effective pending the determination of the appeal per case No SC 141/23 and any appeal against this order shall not suspend this order.

2. 	The first to third respondents be and are hereby barred from collecting any sale proceeds of any stands directly or indirectly through any third parties pending the determination of the appeal in SC 141/23.”

[7]	The applicants thereafter filed another appeal under SC 219/23 arguing that the respondents were granted a relief they had not sought.

[8]	The applicants’ appeal in SC 219/23 was deemed abandoned and dismissed for non-compliance with r 55 (5) of the Supreme Court Rules, 2018 for failing to pay the respondents’ security of costs within one month as prescribed by the rule.  It is against this background that the applicants have lodged the application for condonation and reinstatement of an appeal.

[9]      In their notice of application to the respondents the applicants stated:

“If you intend to oppose this application you will have to file a Notice of Opposition in form No 24 together with one or more opposing affidavits with the Registrar of the Supreme Court at Harare within ten (10) days after the date on which this notice was served upon you.”

[10]    At the hearing of this application Mr Mupangwa, counsel for the respondents raised a point in limine to the effect that the application is fatally defective for the reason that the applicants gave the respondents a dies induciae of ten days when r 43 (5) of the Supreme Court Rules 2018 provides for a dies induciae of three (3) days.  He relied on the case of ZEC v Veritas SC 103/20 where this Court, in holding that; giving a wrong dies induciae to the other party is a fatal irregularity which renders the application a nullity, said:

“The form excludes those fundamental elements upon which an application is founded, which are material for purposes of giving notice to a respondent of his rights as regards the application. It did not state the dies induciae operating against the respondent for purposes of mounting any opposition. There was not even an attempt to include a summary of the basis upon which the application was being mounted on the face of the application. In this case, in the absence of a notice in the proper form the court may be left in doubt as to whether or not a respondent has opposed the application within the prescribed period and served the application at the proper address. In this instance the appellants have not stated why the application did not contain the proper form by way of notice. I hold that the application is as a result fatally defective.”

[11]    Mr Mubaiwa for the applicants, arguing to the contrary, submitted that r 43 (5) does not apply to this case because the application is for the reinstatement of an appeal and not an application for leave to appeal or extension of time to appeal to which r 43 (5) applies.  He did not say whether or not an application for condonation requires a dies induciae of ten (10) days nor state in terms of which rule the applicant applied for condonation for non-compliance with the rules of court.

[12]     Mr Mupangwa in response submitted that r 43 applies because in subrule (1) it provides for applications for non-compliance with the rules.  He stressed that the applicant’s application is not only for the reinstatement of the appeal but is also for condonation for not complying with r 55 (5) of this Courts rules.

[13]    It is therefore necessary to determine the preliminary issue as it is dispositive of whether or not the applicant’s application is fatally defective.

THE LAW

[14]    Rule 43 (1), (3), (4) and (5) provides as follows:

“(1) An application for leave to appeal or for condonation of non-compliance with the rules and for extension of time in which to appeal shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(3)  An application for condonation of non-compliance with the rules and for extension of time in which to appeal shall have attached to it a notice of appeal containing the matters required in terms of subrule (1) of rule 37 and an affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time. Counsel may set out any relevant facts in a statement. Where such application is in relation to a matter in which leave to appeal is necessary the application shall, in addition, comply with the requirements of subrule (2).

(4)  An application in terms of this rule and accompanying documents shall be filed with a registrar and there- after served on the respondent within three days, failing which the application shall be regarded as abandoned and deemed to have been dismissed.

(5)  The respondent shall be entitled, within three days of service, to file with the registrar his or her opposing affidavits, which shall also be served on the applicant and the applicant shall thereafter be entitled, within three days, to file with the registrar his or her answering affidavits.”

[15]   Subrules (1) and (3) of r 43 specifically provide for applications for condonation of non-compliance with the rules.  The use of the word ‘rules’ instead of the words ‘this rule’ is significant.  It means the provision applies to all applications for non-compliance with the rules of this court in general.

[16]   Sub-rules (4) and (5) then provide for the dies induciae in peremptory terms.  This means non-compliance with sub-rule (5) in a notice to the respondent in respect of an application for condonation of non-compliance with the rules results in the application being fatally defective.

[17]     A party who seeks the assistance of the court must do so in terms of the court’s rules. Disregarding the court’s rules renders the applicant’s application fatally defective and a nullity. In the case of Mupungu v Minister of Justice, Legal & Parliamentary Affairs CCZ 7/21, PATEL JCC commenting on the need to comply with the rules of court at pages 34 to 35 of the cyclostyled judgment said:

“One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited. To conclude this aspect of the matter, I am satisfied that the proceedings a quo were fatally defective and constitute a nullity for failure to comply with r 18 of the High Court Rules...”

[18]   In the case of Reverend Clement Nyati v The Trustees for the Time Being of The Apostolic Faith Mission of Africa & Ors SC 63/22 KUDYA JA determining a similar issue where the applicant had given the respondent a wrong dies induciae said:

“It is common cause that, the applicant accorded the respondents 5 days within which to file their opposing papers instead of the 3 days that are prescribed in peremptory terms in r 43 (5) of the rules of this Court. The rule in question provides that:

‘(5)  The respondent shall be entitled, within three days of service, to file with the registrar his or her opposing affidavits, which shall also be served on the applicant and the applicant shall thereafter be entitled, within three days, to file with the registrar his or her answering affidavits.

While the respondents’ legal practitioners had a duty to the court and a responsibility to their clients to abide by this mandatory requirement, they were misled into default by the defective dies induciae, to the prejudice of the respondents.’

The applicant’s failure to accord the proper notice period to the respondents was a fatal defect, which rendered the application a nullity. A nullity cannot be condoned. There is, therefore no proper application before me. I must, per force, strike it off the roll.”

[19]    It is therefore a settled principle of law that giving the other party an incorrect dies induciae renders the applicant’s application fatally defective and a legal nullity.

APPLICATION OF THE LAW TO THE FACTS.

[20]    Mr Mubaiwa’s argument that r 43 does not apply because the applicant’s application is for the reinstatement of an appeal is misleading.   The heading of the application reads as follows:

“Chamber application for condonation for non-compliance with the rules of the court and reinstatement of an appeal in terms of rules 55 (5) and 70 (2) of the supreme Court Rules 2018.”

Paragraph 2 of the Notice also refers to the combined applications as follows:

“In this matter, the Applicant seek that they be condoned for failure to comply with the Rules of Court on the basis of the following explanation”

There is therefore no doubt that the applicants’ application seeks both condonation for non-compliance with the rules and the reinstatement of an appeal.  The part which seeks condonation had to comply with r 43 (5) of the rules of this Court.

[21]    It is clear from the applicant’s notice that it gave the respondent a dies induciae of 10 days when r 43 (5) of the Supreme Court Rules, 2018 provides for a dies induciae of three (3) days.  This renders the applicant’s application fatally defective and a nullity. There is therefore no valid application before me.  The matter must therefore be struck off the roll with costs following the result.

[22]    It is accordingly ordered as follows.

“The matter be and is hereby struck off the roll with costs.”

Nyakutombwa Legal Practitioners, for the 1st, 2nd & 3rd applicants

Muzondo & Chinhema, Legal Practitioners, for the 1st, 2nd & 3rd respondents