Kevin Musimwa v Jonson Muchechest

### Preamble
Judgment No SC 26/25
1
Civil Appeal No SC 338/24
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REPORTABLE     (26)

KEVIN     MUSIMWA

v

JONSON     MUCHECHESI

SUPREME COURT OF ZIMBABWE

HARARE: 22 JULY 2024 & 13 MARCH 2025

The applicant in person.

The respondent in person.

IN CHAMBERS

BHUNU JA:

This is an application for condonation and reinstatement of appeal.  The application is brought in terms of r 70 (2) of the Supreme Court Rules 2018.  If successful, the applicant intends to appeal against the whole judgment of the High Court under case number HCH 4750/11. The judgment was handed down on 12 February 2024 under judgment number HH 64/24.

FACTUAL BACKGROUND

The parties were involved in a violent motor vehicle accident on 27 June 2008. The respondent sustained serious bodily injuries which rendered him immobile.  He sustained a broken femur resulting in permanent disability. He sued the respondent in the High Court (the court a quo) for damages arising from the applicant’s  negligence as follows:

(i)   Bodily injury 			US$52 000.00

(ii)  Medical expenses			         2 000.00

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Total                                                      54 000.00

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In addition, the applicant sought interest at the prescribed rate from the date of summons to the date of payment in full together with costs of suit.  The respondent’s cause of action was grounded on negligence.

THE RESPONDENT’S PARTICULARS OF NEGLIGENCE

The respondent attributed the following particulars of negligence to the applicant.

(i) That he drove his motor vehicle negligently.

(ii) That he drove his motor vehicle without due care and attention.

The applicant denied the allegations of negligence attributed to him by the respondent.  He countered that it was the respondent who was negligent instead, in that he encroached onto his lane thereby causing the accident.

THE RESPONDENT’S EVIDENCE

The respondent gave evidence on his own behalf in the court a quo.  It was his testimony that on 27 June 2008, he was driving his Mazda 626 registration number 543/1407 along Mazowe Road towards Westgate roundabout in the company of four children. At the same time the applicant was driving his motor vehicle, a Toyota Surf registration number AAB 3342 in the opposite direction. The applicant negligently encroached onto his lane thereby causing a violent collision of the two motor vehicles.  He was trapped in his motor vehicle for 45 minutes until the police from Mabelreign came to his rescue.

The respondent’s evidence was corroborated by his witness who testified that the applicant admitted liability to the police and he paid a deposit fine of US$20.00.  He produced the police report which was accepted in evidence as an exhibit.  The police report had a sketch diagram depicting the position of the two motor vehicles at the scene of the accident.

THE APPLICANT’S EVIDENCE

The applicant also gave evidence on his own behalf elaborating on his defence.  It was his defence that he denied the allegation of negligence. He challenged the accuracy of the police sketch diagram produced by the respondent but did not produce his own sketch diagram in support of his evidence. He denied that the police had attended the scene as alleged by the respondent and his witness.  He further denied making any indications to the police.

In denying the charge, he cast aspersions on the police saying that cases of negligent driving are resolved at the courts and not at the police station.

On the basis of the competing evidence before her, the learned judge a quo found as a matter of fact that the police documents produced in evidence comprising the police report and the sketch diagram of the scene of accident were genuine and authentic official documents.

From the documents the learned judge a quo deciphered that it was clear that the applicant was negligent as alleged in that he encroached onto the respondent’s lane.

In assessing the quantum of damages the court a quo placed reliance on the evidence of Doctor Masamha. Having weighed the totality of the evidence before her, the learned judge a quo considered that an award of a total of US$ 37 000.00 would meet the justice of the case.

On the above facts of the case, the applicant desirous to prosecute the appeal, sought to appeal to the Supreme court seeking the following relief:

The applicant’s failure to comply with r 55 (1) and 55 (2) of the Supreme Court Rules, be and is hereby condoned

.

The notice of appeal is SC 84/24 be and is hereby reinstated.

There shall be no order as to costs.

THE LAW

The regulating applications for condonation and reinstatement of appeals is now a well beaten path on which I shall not dwell too long on. These were analysed in Kombayi v Berkout 1988 (1)  ZLR 53 (S) and simplified in Mzite  v Damafalls Investments (Pvt) Ltd  & Anor SC 21/18 as:

The extent of the delay;

The reasonableness of the explanation for the delay;

The prospects of success on appeal.

ISSUES FOR DETERMINATION.

Only two issues emerge for determination on the pleadings.  These are:

Whether or not the extent of the delay and the explanation for delay are reasonable.

Whether the applicant has any prospects of success on appeal.

The decision sought to be appealed against by the applicant was made on 12 February 2024. The applicant’s application is date stamped by the Registrar, 14 June 2024. This being the date the Registrar received the application.  The delay amounts to an aggregate of about 4 months.

In his explanation for the long delay, the applicant states that the reason for the noncompliance is that he initially misinterpreted the provisions of r 37 of the rules of this Court.  He further states that he was of the view that the respondent was appearing in person therefore, no costs would be charged.  He avers that he only realised that he ought to have paid costs when he received the notice that the appeal had been deemed abandoned and dismissed from the registrar of the Supreme Court.  Upon receipt of the registrar’s letter he immediately filed an appeal to this court.  The appeal was however regarded as abandoned and deemed dismissed for the failure to pay costs within the prescribed time limits.

The delay of four months is rather inordinate, but for an unrepresented party, the court tends to be soft on self-actors in strictly applying time lines set by the rules of court. There is a modicum of reason in the applicant’s plea that as a self-actor he assumed that since the respondent was also a self-actor there was no need to pay costs.

PROSPECTS OF SUCCESS

On a proper reading and understanding of the applicant’s defence and uncorroborated evidence, it is clear that his defence is a mere denial not backed up by any evidence or supporting documents.  On the other hand, the respondent presented a solid case against the applicant. It reads well and is ably corroborated and backed up by official police documents which were properly admitted into evidence.

ANALYSIS AND DETERMINATION

I dare say navigating the maze of legal rules of procedure is often a daunting task even for trained lawyers and judicial officers. At the end of the day, it is desirable that justice whenever possible be served on the golden plate of merits rather than the intricate bunch of technicalities. This is particularly so where a party is unrepresented and is desirous to prosecute their cause or defence to finality.

It is with the legal handicap suffered by unrepresented litigants in mind, that I was minded to relax the rules of the game and allow the applicant, a self-actor, to proceed beyond the first issue, preferring to determine the dispute on the merits on prospects of success which are easier to understand for a layperson rather than the intricate rules of court.

The merits and demerits of his prospects of success on appeal are easier to explain than procedural legal technicalities.  In this case, the applicant’s car and that of the respondent were involved in a violent collision.  Both parties accused each other of encroaching into the other’s path.

The respondent testified that the applicant encroached into his path.  His evidence was amply corroborated by viva voce evidence, supporting police documents in the form of a police report and a sketch diagram depicting the position of the vehicles at the scene of the accident.

The respondent averred that the applicant admitted his guilt and paid a deposit fine of US$20.00 to the police.  He produced a copy of the deposit fine receipt which was admitted in evidence.

The applicant denies having encroached onto the respondent’s lane. He accuses the respondent of encroaching onto his lane but produced no shred of evidence in support of his assertion.  He denies the presence of the police at the scene but does not say who rescued the respondent from where he was trapped in the car.  The respondent said it was the police who rescued him and the learned judge a quo believed him.

Above all, the applicant did not deny paying the admission of guilty deposit fine of US$20.00 to the police.  All what he could say was that the police should not have fined him.  They ought to have left everything to the courts.  There is no merit in that argument because it is trite and a matter of common knowledge that an accused person charged with a road traffic offence can refuse to pay a fine and opt to go to court.  In his defence the applicant does not say he was coerced or forced to pay the admission of guilty fine to the police.

The applicant having admitted his guilt of negligent driving to the police, the learned judge a quo cannot be faulted for finding him liable for negligent driving. The quantum of damages was properly assessed based on the evidence of a qualified medical doctor.

On the basis of the foregoing, I come to the inevitable holding that there are no prospects of success on appeal whatsoever.

It is accordingly ordered that the application for condonation and reinstatement of the appeal be and is hereby dismissed with costs.