Job Nyakudya v Goromonzi Rural District Council & 2 Ors

### Preamble
Judgment No. SC 126/22
1
Chamber Application No. SC 447/22
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REPORTABLE (111 )

JOB     NYAKUDYA

v

GOROMONZI     RURAL     DISTRICT     COUNCIL

TIMOTHY     MUTIZWA     DZORWA

THE     MASTER     OF     THE     HIGH     COURT

SUPREME COURT OF ZIMBABWE

HARARE:	12 OCTOBER 2022 & 17 NOVEMBER 2022

K. Mabaudi, for the applicant,

L. Madhuku, for the second respondent,

No appearance for the first and third respondents.

IN CHAMBERS

MATHONSI JA:	This is an opposed chamber application for condonation of the late noting of a cross-appeal and for the extension of time within which to file a cross-appeal made in terms of r 43(1) of the Supreme Court Rules, 2018 [ “the Rules”].

FACTS

On 29 June 2021, the second respondent filed a court application in the High Court [“the court a quo”] seeking to be declared the lessee of an immovable property situated at Mungate Business Centre, Domboshawa, under Chief Chinamora, in the District of Goromonzi, measuring 840 square metres.  The property is held under Lease Number TT 23204.

The applicant opposed the application on the grounds, inter alia, that the land in respect of which the second respondent sought to be declared the lessee had not been leased to the second respondent but instead belonged to him. Consequently, the applicant also filed a counter-application seeking to be declared the lawful lessee of the same immovable property.

On 21 July 2022, the court a quo, delivered its judgment on the application filed by the second respondent.  It dismissed the second respondent’s claim for a declaratory order. The applicant alleges that the court a quo omitted to render judgment on his counter-application as a result of which he wrote a letter requesting the court a quo to attend to the anomaly. That effort yielded nothing.

In the meantime, the second respondent noted an appeal against the judgment of the court a quo on 15 August 2022. Bereft of any sense of solution, the applicant sought to file a cross appeal. Whereupon, the applicant’s problems started in earnest.

On 29 August 2022, the applicant’s legal practitioner attempted to electronically file the cross-appeal.  To his dismay, on the same day, he received notification from the Registrar of this Court that his cross-appeal had been rejected. Consequently, the applicant could not enter his cross-appeal in time.

THE APPLICATION

Following the rejection of his cross-appeal, the applicant then launched the instant application for condonation of the late filing of a cross-appeal and for an extension of time within which to cross-appeal on 9 September 2022.  The applicant’s founding affidavit is deposed to by his legal practitioner, Kudzai Kevin Mabaudi who, down on his knees and with egg in face, admitted his shortcomings in the use of the recently introduced Integrated Electronic Case Management System [I.E.C.M.S].

The applicant’s explanation for the delay in filing the cross-appeal is that his legal practitioner had no knowledge of how to use the (I.E.C.M.S.) and thus, fell out of time.  He asserted that he had no intention to disregard the Rules of this Court.

Regarding the length of the delay, the applicant averred that there was just a delay of seven days which is not inordinate.  He contended that his intended cross-appeal has prospects of success because an omission by the court a quo to render judgment on the counter-application should result in a remittal of the matter to the High Court in terms of s 22(1) (b) (iv) of the Supreme Court Act for determination.  Thus, the applicant prayed for an order in the following terms:

“IT IS ORDERED THAT:

The Late Filing of the Cross-Appeal by the Applicant in respect of the judgment in the High Court sitting at Harare in Case Number HC 3482/21 be and is hereby condoned.

The Applicant be and is hereby granted an Extension of Time within which to note the Cross-Appeal against the judgment of the High Court referred to in Paragraph 1 above within seven (7) days of the granting of this Order.

There shall be no order as to costs, unless the First, Second and Third Respondents oppose the Application.”

Only the second respondent opposed the application. His main contention is that the application has been incompetently made because r 43 under which it was made does not cover applications for condonation of the late noting of a cross-appeal and for an extension of time within which to cross-appeal. He insisted that the court a quo did not omit to adjudicate over the counter-application because it was not before it nor was it ever referred to it.  He did not elaborate. In addition, so the second respondent contended, the main appeal is at an “advanced stage” rendering the instant application too late.

The second respondent entreated me to uphold the preliminary points and strike the application off the roll with costs on a legal practitioner and client scale.

SUBMISSIONS BY THE PARTIES

At the hearing, although Mr Madhuku for the second respondent took points in limine, it was agreed, owing to connectivity challenges experienced during the hearing, that the submissions be made holistically and a composite determination be made in the end.

On the preliminary submissions, Mr Madhuku contended that r 43 does not apply to cross-appeals.  This was so, he argued, because the rule relates to the “main appeal”.  In counsel’s view, the applicant ought to have approached the court seeking condonation in terms of r 4 of the Rules.

Mr Madhuku also raised a preliminary objection that there is nothing in the judgment of the court a quo to be appealed against by cross-appeal.  As such, so it was argued, the proposed cross-appeal is equally incompetent as the applicant cannot appeal a judgment which makes no reference to the counter-application.  Counsel’s view is that the applicant should merely participate in the main appeal and bring his concerns to the full court’s attention therein.

Mr Madhuku’s third preliminary objection was that the draft order was fatally defective because it did not cite the rule in respect of which condonation was sought for non-compliance as required by Practice Direction 1 of 2017. Taken together, counsel for the second respondent submitted that the foregoing preliminary objections are dispositive of the application.

Per contra, Mr Mabaudi for the applicant submitted that the point that rule 43 does not apply to applications for condonation for the late noting of cross-appeals has no merit. He drew attention to the similarities in the procedure for filing appeals and cross-appeals, namely, that in both appeals and cross-appeals, rules 43 and 45 require that an appeal must comply with r 37. By parity of reasoning, Mr Mabaudi contended that rule 43 must be regarded as applying to both appeals and cross-appeals.

Regarding the contention that the proposed appeal was not directed against the judgment of the court a quo, Mr Mabaudi’s view was that the failure by the court a quo to hand down judgment on a counter-application placed before it was an error of omission in respect of which the applicant would seek a remittal in terms of s 22 of the Supreme Court Act [Chapter 7:13]. In this regard, counsel emphasised that the counter-application was argued before the court a quo.  He added that an appeal could be made if a court failed to take into account a relevant point. Counsel refuted that a review could be relied on to regularise the alleged error committed by the court a quo as suggested by the second respondent.

On the contention that the applicant was enjoined to cite the rule that the applicant seeks condonation for failing to comply with in the draft order, counsel took the view that the draft order was simply, as its name suggests, a “draft”.  Its frailties could not be fatal.

On the merits of the application, in particular the explanation for the non-compliance, Mr Mabaudi took the blame as the applicant’s legal practitioner, for his inability to use the I.E.C.M.S. efficiently.  He placed himself in the metaphoric “hands of the court”.  He was however quick to claim credit for the steps he took to quickly remedy the problem including attending the continuous training of lawyers on the use of the I.E.C.M.S.

In counsel’s view, the proposed cross-appeal has prospects of success and may result in the remittal of the matter to the court a quo in terms of s 22 of the Supreme Court Act [Chapter 7:13] for the omitted judgment to be rendered. According to counsel, the second respondent will not suffer any prejudice if this application is granted.  He added that the balance of convenience favours the granting of the application.

I note that Mr Madhuku conceded that the applicant’s explanation for non-compliance is reasonable. However, counsel insisted that the proposed appeal has no prospects of success because there is no judgment, and consequently, there could not be an appeal. On the aspect of the balance of convenience, Mr Madhuku submitted that since they had already filed heads of argument in the main appeal, the second respondent would be inconvenienced if this application is granted.  Suffice it to mention that Mr Madhuku persisted with the point that the second respondent’s opposition was mainly anchored on the preliminary objections that he raised.

In light of these submissions, the main issue arising for determination, despite being based on a preliminary objection, is whether or not the applicant competently filed the instant application for condonation of the late noting of a cross-appeal and for the extension of time within which to cross-appeal in terms of r 43 of the Rules.  If I find that the applicant could not competently make the application under r 43, that would be the end of the matter.  The application would have to be struck off the roll.

If however, I find that the application was competently made in terms of that rule, then two other issues would stand to be considered. The first is the propriety of the applicant’s draft relief.  The second is whether the applicant has shown good cause for the granting of the application.  I mention in passing that the second respondent’s objection impugning the proposed cross-appeal as not being directed against the judgment of the court a quo is related to the prospects of success.

THE LAW

Cross-appeals in civil matters are regulated by r 45 of the Rules.  Subrule (1) thereof provides that a respondent to an appeal noted in terms of r 37 is entitled, within ten days of the entry of the appeal, to enter a cross-appeal.  The ten-day period within which a respondent is entitled to enter a cross-appeal is mandatory.

Where a respondent to an appeal does not note a cross-appeal within the mandatory period for doing so, r 45 is silent on the procedure that such a respondent should follow in seeking condonation for non compliance.  Ideally a provision should be made in the rule for such procedure.  Unfortunately even r 43, providing for applications for leave to appeal or extension of time to appeal, does not say anything on whether a respondent intending to cross-appeal can rely on it to apply for an extension of time to cross-appeal.

There is need to closely examine the provisions of r 43(1), in terms of which the instant application was made. Also deserving scrutiny is subrule (3).  They read thus:

“(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.

...

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).” (The underlining is for emphasis)

It occurs to me that the above subrules contemplate applications for condonation of non-compliance with the rules and for an extension of time within which to appeal.  There is no reference to cross-appeals, neither is there any indication that the draughtsman intended applications for an extension of time within which to cross-appeal to be made in terms thereof. If the intention was that references to appeals ought to be construed as references to cross-appeals, then the Rules would have expressly said so.

In the circumstances the question which then arises is whether or not a respondent intending to obtain condonation and an extension of time within which to cross-appeal is precluded from approaching the court in terms of r 43.  I think not.  In arriving at that conclusion, I have considered the old Supreme Court Rules, 1964, the practice of this Court under those Rules and the common-law approaches of the Court to condonation.

I begin by making the significant observation that the provisions of the old Supreme Court Rules, 1964 on cross-appeals are almost identical to the provisions of the current Rules on the same subject.  Both provide a ten-day period for cross-appealing.

One judgment of this court made under the old Rules, is instructive in the resolution of this application. It is the case of Kadungure v Kadungure S–19–07, in which this Court considered what was essentially an application for an extension of time within which to note a cross-appeal.  The Court’s judgment suggests that the application was considered in terms of r 31(7) of the old Rules, which bestowed discretion on a Judge of this Court to make any order as he or she thought fit in an application for an extension of time in which to appeal. Subrule 31(7) is replicated in the current Rules as r 43(7).

Although the issue of whether or not it is competent for a respondent to seek an extension of time within which to cross-appeal in terms of the same rule providing for applications for an extension of time within which to appeal was not before Ziyambi JA in Kadungure supra, the learned Judge of Appeal, writing obiter, pertinently remarked at p 1 of the cyclostyled judgment that:

“This application should, as I understand it, be correctly termed an application for an extension of time within which to note a cross-appeal.  However it is headed: “APPLICATION FOR CONDONATION OF LATE NOTING OF COUNTER APPEAL”.

This Court has reiterated time and time again that it cannot condone the late noting of an appeal as the appeal so noted is a nullity.  It does not exist.  How can it be condoned?  What an applicant must apply for is an extension of the time within which to note an appeal (or cross-appeal as the case may be) and for condonation of his failure to note an appeal (or cross-appeal) in the time prescribed.  See, for example, Passmore Matanhire v BP Shell Marketing Services (Private) Limited SC 113/04.” (The underlining is for emphasis.)

The above dictum, without doubt confirms that a litigant who has failed to enter a cross-appeal is entitled at law to seek condonation for his failure to timeously do so as well as an extension of time within which to do so.  The result is that while a respondent has a right to seek condonation and an extension of time within which to cross-appeal, the procedure for doing so is not set out in the Rules of this Court.

Happily, this Court has the inherent jurisdiction to regulate its processes and to condone non-compliance with its rules.  The inherent jurisdiction of this Court is not only embedded in the Constitution but is also manifest in the common law.  Thus, in Bheka v Disablement Benefits Board 1994 (1) ZLR 353 (S) at 357, Gubbay CJ, citing a South African authority, accepted that:

“‘What is appropriately called the ‘inherent jurisdiction’ is related to the Court’s functioning towards securing a just and respected process of coming to a decision and is not a factor which determines what order the Court may make after due process has been achieved. That is a function of the substantive law. The Court — always — is charged with holding the scales of justice. It is not within its task to add weights to the scales by detracting from a right given by the substantive law or granting a right not given by the substantive law.’”

Adjectival law is the domain of inherent jurisdiction.  It is however accepted that inherent jurisdiction can neither confer a right, including one of a procedural nature, nor can it derogate from a right that is regulated by substantive law.

Accordingly, where adjectival law impedes, undermines or falls short of aiding the just determination of a dispute, inherent jurisdiction unshackles a Court from the limitations of mechanically observing the Rules and from trudging on towards an unjust decision due to an inadequate procedural framework. There is, however, a rider that Courts of inherent jurisdiction do not invoke such jurisdiction willy-nilly.  Nor are they obliged to always exercise it.  Instead, the exercise of inherent jurisdiction is absolutely discretionary and dependent on the factual circumstances of each case.  See the case of Bheka, cited above.

For our present purposes, the inherent jurisdiction of this Court must be considered alongside its inherent power to condone procedural non-compliance with its Rules.  Herbstein and Van Winsen, in The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa, 5ed (2009), at 1227 authoritatively sum up the principle as being that:

“… the Supreme Court [has] an inherent right to grant condonation when principles of justice and fair play demand it to avoid hardship and when the reasons for non-compliance with time limits have been explained to the satisfaction of the court”.

See also r 4 of the Rules, Synohydro Zimbabwe (Pvt) Ltd v Townsend Enterprises (Pvt) Ltd & Ors S–27–19 at 10 and Makaruse v Hide & Skins Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S) at 64.

SYNTHESIS

Whether or not the applicant could competently apply for condonation and for an extension of time within which to cross-appeal in terms of r 43(1).

There is no express provision of the rules entitling a respondent intending to cross-appeal out of time to apply for an extension of time within which to cross-appeal in terms of r 43.  In fact, there is no provision in the Rules in terms of which a respondent to an appeal may apply for an extension of time within which to cross-appeal.  Notwithstanding that there is no express procedural route by which the applicant could make this application, the applicant still retains his right at law to cross-appeal the judgment of the court a quo, a right lost as a result of failure to abide by the Rules and for which condonation is sought.

Mr Madhuku contended that the applicant was at large to proceed in terms of r 4.  Rule 4 sets out the powers of a Judge of this Court to depart from the Rules where it is essentially in the interests of justice to do so.  That rule is intended for the Court and not for the litigants.  It is not a rule on which a litigant may ground an application for condonation.

This much was stated recently by the Constitutional Court in the case of Minister of Mines and Mining Development & Anor v Fidelity Printers & Refiners (Pvt) Ltd & Anor CCZ–9–22 at pp 11 – 12.  In that case, the applicants expressly relied on r 5 of the Constitutional Court Rules, 2016 to apply for condonation.  That rule is similar to r 4 of this Court’s Rules.  The Constitutional Court remarked:

“The application is premised on r 5. ... A party cannot base any application before this Court on r 5 as it does not provide for a party to institute proceedings. It is a rule available to the Court where litigants have failed to comply with the rules of court but the Court considers it is in the interests of justice to condone the departure. The applicants cannot predicate an application for condonation. Rule 5 is a tool in the hands of the Court. Thus, it is meant for instances where a party has instituted proceedings but fails to comply with any provision of the rules. In that instance, the Court may then direct, authorise or condone the departure from the rules in the interests of justice.”

Given the above position, I also came to the conclusion that the approach contended for by Mr Madhuku was clearly not available to the applicant.  The application could not be premised on r 4.

I take the view that the inadequacies of the Rules to clearly provide for a procedure by which the applicant may apply for condonation for non-compliance with r 45(1) and for an extension of time within which to cross-appeal cannot be relied on to put the applicant out of court.  The applicant has a right to seek condonation and an extension of time within which to cross-appeal.  Accordingly, it would be in the interests of justice that, in the exercise of my discretion, I should rely on this Court’s inherent jurisdiction to determine the application in the form in which it has been filed.

First, the provisions of r 43 in terms of which the application has been made embody all procedural steps that the applicant has to comply with to obtain an extension of time. Second, it is apparent that no prejudice is visited upon the respondents if the application is determined under r 43.  That does not change the factors that this Court has to consider before granting the indulgence sought.

I am fortified in this approach by the authority of Chamisa v Mnangagwa & Ors CCZ–21–19 at p 38, where the Constitutional Court expressed the view:

“A court exists to do justice. It also exists to act fairly. Ordinarily, once a court finds that it is just and equitable to allow a matter to be brought to it outside the procedural requirements, it follows that it would be in the interests of justice to allow the matter to be heard. Minister of Justice v Ntuli 1997 (3) SA 772 (CC) para [31].”

In that regard, while the application could not squarely be brought under r 43, in the absence of any other procedural route, I find that the application remains competent. For all intents and purposes, the application satisfies all requirements the applicant would have been expected to comply with had he proceeded in accordance with the common law power of the Court to grant condonation and extension of time.  Any other approach would amount to “adding weights to the scales by detracting from a right given in substantive law”, as adverted to in Bheka supra.

It is for the foregoing reasons that I dismiss the second respondent’s preliminary point on the competency of the applicant proceeding under r 43.

Whether or not the applicant’s draft relief is fatally defective.

Practice Direction 1 of 2017 prescribes the forms that have to be used for draft orders in chamber applications for condonation and extension of time. Form 3 to the Practice Direction suggests that the first paragraph of the draft order in such a chamber application must be couched as follows:

“The application for condonation for non-compliance with rule - of the Rules of the [Supreme Court, 2018 (SI 84/2018)] be and is hereby granted.”

It is trite that a draft order must satisfy prescribed characteristics for it to be valid and acceptable to the Court. Draft relief must be clear and precise.  See Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CCZ–6–22, at pp 4 – 5 and Ahmed v Docking Station Safaris (Pvt) Ltd t/a CC Sales S-70-18, at p 5.

Imprecise draft orders beget imprecise court orders which are incapable of enforcement.  Courts eschew granting orders that, as is often said, are brutum fulmen.  Such orders are not enforceable and may result in further litigation between the parties which undermines the need for finality in litigation.

Turning to the facts of this case, I do not agree that the applicant’s failure to set out the rule in respect of which condonation is granted is fatal to his application. While Practice Direction 1 of 2017 requires the rule, which has not been complied with, and for which condonation is sought, to be set out, the applicant has instead set out the nature of his non-compliance.  That fits the bill.  To hold otherwise would be to worry about form than substance.

An injustice would be occasioned against the applicant were his application to be struck off the roll on account of the manner in which he has couched his draft relief.  The applicant has effectively done what Practice Direction 1 of 17 requires of him.  He has set out the nature of non-compliance for which he seeks condonation.  That should suffice.

The point was made in the case of Dube v PSMAS S–73–19, at 9, para [27] that:

“That rules and practice directives are made for the court and not the court for the rules is a principle accepted in this jurisdiction ……  Therefore, where strict adherence to …… a practice directive issued by a court results in substantial injustice, a court will grant relief in order to prevent such an injustice …… The Rules of Court are not laws of the Medes and Persians and in suitable cases the Court will not suffer sensible arrangements between the parties to be sacrificed on the altar of slavish obedience to the letter of the Rules.”

The prescriptions of Practice Direction 1 of 2017 on draft orders in chamber applications must not be applied in a facile manner.  I accordingly, dismiss the preliminary objection regarding the validity of the draft relief.

Whether or not good cause has been shown for the granting of condonation and for an extension of time within which to cross-appeal.

What the court has regards to in an application for condonation of the late noting of a cross-appeal and extension of time within which to cross-appeal is settled in this jurisdiction.  The court exercises discretion by cumulatively considering a number of factors which include but are not limited to the length of the delay and the reasonableness of the explanation thereof, the prospects of success, the possible prejudice to the other party, the need for finality in litigation and the importance of the case.  See Read v Gardiner & Anor S–70–19 at pp 4 – 5.

On the length of the delay, Mr Madhuku accepted that the delay is not inordinate.  That concession, which was properly made, ends the inquiry.

Regarding the explanation for the delay, there is no doubt that the delay was not a consequence of the applicant’s conduct but that of his legal practitioner, whose explanation that he was new to the I.E.C.M.S. and, thus failed to successfully enter the cross-appeal on the electronic system, is reasonable.

At the time of attempting to enter the cross-appeal, the I.E.C.M.S. was relatively new.  In this regard, I am of the considered view that a measure of leniency ought to be afforded to the new I.E.C.M.S. users who may blunder as they navigate their way through the system.

In any event, I take judicial notice of the legal practitioner’s prompt efforts to upgrade himself by taking steps to address his shortcomings in using the I.E.C.M.S. His conduct during the entire chain of events suggests that the non-compliance with the time limit for cross-appealing was not wilful.  Accordingly, it is deserving of condonation.

On the prospects of success, the proposed cross-appeal will raise one ground of appeal.  It relates to the alleged failure of the court a quo to render judgment in respect of the counter-application.  A close reading of subrules (9), (10) and 11) of rule 58 the High Court Rules, 2021, reveals that the court a quo was obliged to deal with both the court application and counter-application at the same time.

No doubt, the effect of the court a quo’s failure to render judgment on the counter-application is an important point of law that requires consideration by the full Court.  I entertain the view that the proposed cross-appeal’s attack on the court a quo’s failure to render judgment on the counter-application, as it was required to, is directed against the judgment’s shortcomings and deserves the attention of the full court on appeal.

DISPOSITION

The applicant’s delay in cross-appealing is certainly short.  In addition, he acted timeously in filing this application for condonation of his failure to comply with r 45(1) and for an extension of time within which to cross-appeal. Regarding the prospects of success, I am satisfied that the intended cross-appeal is arguable.  When these factors are taken together, the ineluctable conclusion is that the applicant must be given his day in court.

On the issue of costs, although the applicant sought costs against anyone opposing the application, I am inclined to order each party to bear its own costs.  This is for the reason that the second respondent’s opposition centred around the procedure adopted in circumstances where there is a lacuna in the Rules. Crucial procedural issues deserving closer examination were raised.  In the circumstances, it is only fair that each party bears its own costs.

Finally, I need to comment on the absence of an express provision in r 45 setting out the procedure for seeking condonation for non-compliance with r 45(1) and for applying to extend the time within which a cross-appeal may be noted.  The present set-up of the Rules presents an undesirable gap, which results in procedural headaches for litigants.  There is a need for the rule to be amended accordingly.

In the result, it be and is hereby ordered as follows:

The late filing of the cross-appeal by the applicant against the judgment of the High Court, sitting at Harare, in case number HC 3482/21, be and is hereby condoned.

The applicant be and is hereby granted an extension of time within which to note a cross-appeal against the judgment of the High Court referred to in paragraph 1 above within seven (7) days of the granting of this order.

Each party shall bear its own costs.

Hove and Associates, applicant’s legal practitioners

Lovemore Madhuku Lawyers, second respondent’s legal practitioners