Conju Incorporated (Private) Limited v Registrar of the Supreme Court & 3 Ors

### Preamble
Judgment Number SC 28/20 1
Chamber Application No. SC 297/19
REPORTABLE (25)
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REPORTABLE	(25)

CONJU     INCORPORATED     (PRIVATE)     LIMITED

v

1.    REGISTRAR     OF     THE     SUPREME     COURT     2.     BUSUMAN     MOTORS     3.     SAND     RIVER PROPERTIES     4.     REGISTRAR     OF     DEEDS

SUPREME COURT OF ZIMBABWE

MATHONSI JA

HARARE: JANUARY 23, 2019 AND FEBRUARY 20, 2020

S.T. Mutema, for the applicant

S. Gula-Ndebele, for the 2nd and 3rd respondents

IN CHAMBERS

MATHONSI JA: 	This is an application for condonation of the late filing of an application for reinstatement and the reinstatement of the appeal made in terms of r70 (2) of the Supreme Court Rules, 2018.  The applicant initially filed a timeous application for reinstatement of his appeal which was deemed abandoned under case number SC 04/19.  The application was struck off the roll with no order as to costs on 14 May 2019 prompting the applicant to lodge a fresh application on 29 May 2019.

The facts are that the applicant and the second respondent entered into a lease agreement in terms of which the applicant leased from the second respondent premises known as Stand 3817 Salisbury Township of Stand 4450 Salisbury Township Lands otherwise referred to as No. 250 Samora Machel Avenue Harare.  In due course, the parties engaged each other on the possibility of the second respondent selling the property to the applicant, the sitting tenant.

When a dispute arose between the two parties as to whether a sale agreement had indeed been concluded between them, the applicant sued.  It sought in the High Court, an order, inter alia, that an agreement of sale had been concluded between them, compelling the second respondent to transfer the property to itself or alternatively, a reimbursement of a sum equivalent to US$ 300 000-00 allegedly paid into the second respondent’s bank account as purchase price for the property.

The suit was contested by the second respondent which denied the existence of an agreement of sale between the parties and alleged that the payment made to it was for arrear rentals due by the applicant.  At the trial, the High Court was required to decide on essentially four issues referred for trial which had been settled by the parties at a pre-trial conference and listed in a joint pre-trial conference minute.

These are:

“1. Whether or not a contract of sale exists between the  plaintiff and the first defendant.

2. Whether or not plaintiff can be lawfully ejected from the property.

3. Whether or not plaintiff is obliged to pay any holding over damages.  If so, how much?

4. Whether or not first and second defendants should reimburse plaintiff.  If so, how

much?”(The underlining is for emphasis)

The High Court found that the second respondent never signed the proposed agreement of sale involving the property as its representative had decided, “for good reasons” not to accept the offer to purchase. The High Court concluded that there was “no meeting of the minds” between the parties as to ground a valid sale agreement.

While accepting that the applicant had paid a substantial amount of money into the second respondent’s account, the High Court found that it had been “secretly and hurriedly deposited” into the second respondent’s account not as the purchase price but as an attempt to ward off the eviction process the latter had initiated against the applicant. Significantly, the court did not resolve the fourth issue referred for trial.

The applicant was aggrieved and timeously noted an appeal to the Supreme Court against the judgment of the High Court on four grounds.  One of the appeal grounds attacked the signal failure by the High Court to determine the fourth issue for trial namely, whether the applicant should be reimbursed the money paid to the second respondent.

The appeal was set down for hearing on 12 June 2018. The hearing was aborted and the appeal postponed sine die because the Supreme Court bench was improperly constituted.  It included the judge whose judgment, when he was still a High Court judge, was appealed against.  The applicant’s problems started after the postponement.  In the end, by letter dated 28 November 2018 the registrar notified the applicant that its appeal was regarded as abandoned and deemed to have lapsed in terms of para 10 of Practice Directive No. 3 of 2013.  The reason was that, after the appeal was postponed sine die on 12 June 2018, the applicant was supposed to have it set down on or before 14 November 2018.

The applicant has explained that prior to receiving the notification from the registrar dated 28 November 2018, the registrar had put the applicant on terms by letter dated 1 October 2018.  The letter had given the applicant 30 days to “have the matter set down” failing which it would be regarded as abandoned.  According to the applicant, its legal practitioners prepared and presented to the registrar set down papers on 5 November 2018 within the time given by the registrar. The latter however refused to accept the notice of set down insisting that the set down of appeals was the registrar’s prerogative, not of the parties.

The applicant’s concerns and its counsel’s encounter with the registrar were captured in a letter written to the registrar on 7 November 2018.  It was stamped at the registry, in acknowledgment of receipt, the same day.  The pertinent part of the letter reads;

“We were taken aback when you indicated that unlike the High Court, in the Supreme Court a party cannot set an appeal down as that is done by the registrar.  If indeed a party cannot set a matter down we request that you proceed and do so.  If practice direction 3/2013 is indeed applicable we attached the draft notice to avert going out of time.”

In light of the attendance by the applicant’s counsel at the registry and the letter written to the registrar requesting a set down of the appeal a week before the expiration of the time given to the applicant to motivate a set down of the appeal, the applicant says it was surprised to receive the daunting news that the appeal had been abandoned.  The abandonment was effected in error.

On the prospects of success on appeal the applicant insists that there was indeed an agreement of sale between the parties even though the written contract was not signed.  More importantly, the applicant advances the argument that the High Court having found that there was no agreement of sale, but that money had been paid to the second respondent, it was required to determine the issue of the return of the money.  After all, that was made a trial issue which could not be ignored.  Instead the High Court dismissed both the main claim and the alternative one.  For that reason, the appeal enjoys prospects of success.

The second and third respondent opposed the application.  On the explanation for non-compliance the respondents did not say much.  In fact their entire opposition on that aspect is contained in one short para 6 of the opposing affidavit of Brian Dzimwasha, a director of the third respondent.  He stated:

“6. Ad Paragraph 5

It is humbly submitted that in light of the notices from the first respondent dated 1st October 2018 and 28th November 2018, annexed hereto and marked ’A’ and ‘B’ respectively, sent to the applicant in compliance with practise direction 3 of 2013, the appeal was abandoned in terms of the rules.”

Clearly the paragraph is not helpful at all in the determination of whether a reasonable explanation was given for the failure to comply with the rules.

Regarding the prospects of success on appeal, the respondents maintained that there was never an agreement of sale.  For that reason, the appeal enjoys no prospects of success.  Again on the main ground of the High Court’s failure to determine one of the trial issues, that of reimbursement, the opposing affidavit is not helpful at all.  It only states the obvious, that the alternative claim was also dismissed.

Rule 70(2) allows an appellant whose appeal is deemed to have lapsed or is regarded as abandoned in terms of subr (1) of r 70 to apply for its reinstatement within fifteen days of receiving notification from the registrar.  The legal principle governing applications for reinstatement of appeals is now settled in this jurisdiction.  It is that in an application for the reinstatement of an appeal that was regarded as abandoned and deemed to have lapsed the applicant must show good cause for the default.  In doing so, the applicant is required to satisfy the court firstly, that he or she has a reasonable explanation for the delay in question and secondly, that his or her prospects of success on appeal are good.

The relevant factors to be considered and weighed against the other in determining whether to grant condonation include:

The degree of non-compliance with the rules;

The reasonableness of the explanation for the delay; and

The prospects of success on appeal.

See Maheya v Independent African Church 2007 (2) ZLR 319 (S) at 323 B- C.

Regarding the extent of the delay and the reasonableness of the explanation for the non-compliance with the rules, I am of the view that the explanation is reasonable and the delay in seeking to purge the breach is not inordinate.  Clearly the applicant sought the set down of the appeal after its postponement sine die within the time fixed by the registrar for doing so.  Whether the applicant was correct in submitting a blank notice of set down to the registrar for issue is completely immaterial.  What is important is that the registrar was requested to set down the appeal.  She did not.

Instead, the registrar ignored all the efforts of the applicant to have the matter set down and proceeded to give notice of abandonment deeming the appeal as having lapsed.  This was erroneous. It is not in dispute that after receiving notification the applicant acted promptly in filing the first application for reinstatement.  Unfortunately for the applicant, the application was struck off the role for want of prospects of success on appeal.  In my view, the applicant should not be penalised for its legal practitioner’s lack of diligence which led to that omission.

After the first application was struck off the roll, the present one was filed on 29 May 2019 without delay.  As I have said, in opposing the application, the respondents did not advance any reasons why the explanation rendered should be regarded as unreasonable.  I have no reason to condemn it.

It occurs to me that the applicant’s prospects of success on appeal are fair.  It is apparent that the fourth issue referred to trial, that of reimbursement of the purported purchase price, was not determined by the High Court at all.  A court of law sits to resolve disputes and where an issue has been referred to trial, it is the duty of the trial court to determine it.  In this case the trial court did not determine all the issues referred to it but it still dismissed the applicant’s alternative claim.  If the trial court had reasons for dismissing the alternative claim, it did not articulate them in the judgment.  All that it means is that it has presented the applicant with a foothold on appeal.

At the hearing of the application Mr Mutema for the applicant abandoned the prayer for costs.  He prayed that the application be granted with each party to pay its own costs.  As the application is meritable I proceed to do so.

In the result, it is ordered that:

The application is hereby granted.

The applicant’s appeal in case number SC 791/17 is hereby reinstated.

The registrar shall proceed to set it down for hearing on the earliest available date.

Each party shall bear its own costs.

Stansilous & Associates, applicant’s Legal Practitioners

Gula-Ndebele & Partners, 2nd and 3rd respondents’ Legal Practitioners