Linda Katsande v (1) Getrude Sihle Sibanda (2) Kizito Zvavahera (3) Registrar of Deeds

### Preamble
Judgment No. SC 80/18
Chamber Application No. SC 774/18 1
DISTRIBUTABLE (69)
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DISTRIBUTABLE	(69)

LINDA     KATSANDE

v

(1)     GETRUDE     SIHLE     SIBANDA     (2)     KIZITO     ZVAVAHERA

(3)     REGISTRAR     OF     DEEDS

SUPREME COURT OF ZIMBABWE

GUVAVA JA

HARARE: DECEMBER 6, 2018 & DECEMBER 24, 2018

F. Mahere, for the applicant

B. Mtetwa, for the respondent

No appearance for the second respondent

No appearance for the third respondent

IN CHAMBERS

GUVAVA JA: 	This is a chamber application for condonation and extension of time within which to note an appeal made in terms of Rule 43 of the Supreme Court Rules, 2018.

The brief background of this application may be summarised as follows:

The applicant and second respondent who were once husband and wife entered into a written agreement of sale with the first respondent sometime in October 2007 in respect of an immovable property known as Stand No. 4306 Fountainbleau Estate measuring 185 square metres held under deed of grant number 00117/05. The agreed terms of the agreement were that transfer of the property was to be effected upon full payment of the purchase price.

In terms of the papers filed of record, it was established that the first respondent paid the full purchase price of the property as agreed between the parties. Realising that the applicant and the second respondent were reluctant in effecting transfer, the first respondent issued summons in the court a quo claiming that there was breach of the terms of the agreement of sale by the applicant and the second respondent.

After issuance of the summons by the first respondent, the second respondent who is the applicant’s ex-husband consented to judgment in terms of a Consent to judgment, which was filed of record on 2 August 2016 whilst on the other hand the applicant entered an appearance to defend.

During trial the second respondent gave evidence in favour of the first respondent. In terms of the first and second respondents’ evidence the purchase price for the property was pegged at 12 billion dollars and that twelve billion dollars was paid in United States Dollars. It was further stated that both parties, that is, the applicant and second respondent received their respective shares of that money. To buttress this position an acknowledgment of receipt by the applicant was produced in court as evidence.

After the first and second respondents had given their evidence the applicant opened her case and pleaded the existence of two agreements with the first respondent. She alleged that the agreement she had entered into with the first respondent was for a price of 20 billion and not 12 billion. The applicant however, did not place the agreement bearing the 20 billion dollars as the purchase price before the court.

The applicant’s main defence in the matter was that the agreement was tainted with illegality as the actual purchase price was 20 billion dollars and the parties had appended the 12 billion dollars price in a bid to shortchange the fiscus in terms of payment of the Government Stamp Duty and Capital Gains Tax. The applicant further submitted that the first respondent intended to defraud her in common purpose with 3rd parties hence she terminated the agreement.

After hearing evidence on the matter, the court a quo held that it was apparent from the evidence that had been produced before it that the applicant had signed the agreement for 12 billion and further that she had signed an acknowledgement of the receipt of the purchase price. Having made these findings, the judge a quo was satisfied that all the essential elements of a valid agreement of sale were met. The court ordered transfer of the said property.

It is imperative to note that judgment in the matter was handed down on 19 September 2018. In her founding affidavit, the applicant alleges that she only got knowledge of that judgment on 10 October 2018. Thereafter she had discussions with her legal practitioners where she expressed dismay at the judgment leading to the instruction that an application for condonation and extension of time within which to note an appeal be made as the appeal was already four days out of time.

APPLICANT’S SUBMISSIONS

At the hearing of this application, Ms Mahere, counsel for the applicant submitted that the usual practice is that when a judgment is handed down the Clerk of the High Court telephones legal practitioners to inform them of the judgment. However, in this instance the call was made to the applicant’s legal practitioner’s old address as such the applicant did not get the message. Counsel for the applicant further submitted that the delay of four days was not inordinate given the fact that the applicant acted as promptly as possible soon after realising that judgment had been handed down.

With regards to the question of whether or not there were prospects of success in the matter, Ms Mahere asserted that the agreement was void ab initio. Ms Mahere’s argument arose from the fact that the parties wanted to defraud the fiscus. Having made the above averments, the applicant contended that there was no contract in the first place therefore there was nothing to uphold. As such the decision of the court a quo ought to be set aside.

Pertaining to the second respondent’s consent to judgment Ms Mahere argued that the fact that the second respondent consented to judgment could not override the established fact that the contract was illegal. Therefore, the issue of the second respondent’s consent to judgment was inconsequential in the circumstances.

FIRST RESPONDENT’S SUBMISSIONS

Mrs. Mtetwa, counsel for the first respondent’s submissions were mainly centred on the issue of prospects of success.

Counsel for the first respondent argued there were no prospects of success in the matter but the applicant’s intended appeal is only a delaying tactic as she is still resident at the property which is the subject of this dispute.

Ms Mtetwa, further argued that in any event the applicant’s notice of appeal was defective because of the fact that it overlooked the second respondent’s consent to judgment which was filed of record on 2 August 2016.

The argument was that such consent had not been challenged and it could not be challenged as an appellate court does not have jurisdiction to set aside a “consent order.”  She thus, submitted that the notice of appeal was fatally defective as the applicant could not possibly appeal against the “whole” judgment of the court a quo in light of the existence of that consent to judgment. It was Ms Mtetwa’s argument that the appeal ought to have been against only a portion of the judgment, as a consequent to that oversight it was submitted that the relief sought by the applicant was also defective as it pertained to the entire judgment instead of the portion which related to the findings against the applicant.

ISSUE FOR DETERMINATION

With regards to the issue of extent of the delay and the reasonableness thereof, I am inclined to agree with counsel for the applicant, that the delay is not inordinate, neither is the explanation too far-fetched not to warrant the court’s indulgence.

On the issue of prospects of success, the applicant does not need to prove that she will win the case. What the applicant only needs to show at this stage is whether or not she has an arguable case. In view of the above facts and the arguments made for and on behalf of the applicant both on paper and in oral submission, I take the view that the applicant must be accorded her day in court.  I have reached this conclusion because the acknowledgment of receipt which the applicant is said to have signed bore a purchase price of 20 billion dollars thus creating confusion as to the actual purchase price of the property.

Having established that the above elements were established, the only issue that needs to be dealt with at this juncture pertains to the argument raised by Mrs Mtetwa. The argument raises the following issue for determination:

WHETHER OR NOT IN CIRCUMSTANCES WHERE THERE IS A CONSENT TO JUDGMENT A PERSON HAS TO APPEAL AGAINST THE WHOLE OR PART OF THE JUDGMENT

Answering this question will consequently answer the question of whether or not the applicant’s notice of appeal and the relief sought thereto are fatally defective as per the first respondent’s argument.

In determining this issue, I am inclined to agree with counsel for the applicant that there is no procedure in the High Court for a co-defendant or respondent to set aside a consent to judgment by the other party. The only way to attack that consent to judgment is to appeal against the final judgment.

Mrs. Mtetwa, averred that an appellate court does not have jurisdiction to set aside a consent order. Although, this may be true, I take the view that what was before the court a quo was not a “consent order” but rather a consent to judgment which only involved one of the defendants (a quo) and not both of them. What this means therefore is that the Supreme Court may not be bound by the second respondent’s consent to judgment when determining the matter before it.

In essence what the second respondent did when he consented to judgment is that he became in a way a “co-plaintiff” as he gave evidence on behalf of the applicant so the second respondent’s consent to judgment aggrieved the applicant and to register her discontentment in the outcome of the matter her only avenue in the circumstances was to launch an appeal in this Court.  The appeal had to be against the entire judgment of the court a quo.

In order to bring clarity to this issue it is imperative that the meaning of “part” and “whole” of the judgment be explained so that litigants understand what it means to appeal against “whole” or part of the judgment. According to the Shorter Oxford English Dictionary on Historical Principles by Little. W, Fowler H.W and Coulson. J (3rd edn, Vol 2, Oxford, Clarendon Press) the word “whole” means, “in its entirety, in full, all of it, to the full extent, altogether.” The Merriam Webster law Dictionary Online defines “part” as “a separate piece of something, an amount or section which when combined with others makes up the whole of something or some but not all of something.”

In the circumstances of this case the applicant’s intended appeal is against the whole judgment as she was aggrieved by the entire judgment. The second respondent’s consent to judgment does not support her cause therefore she had to appeal against the judgment in its entirety. One can only appeal against part of a judgment when the other part of the judgment is in their favour.

In casu there is no part of the judgment that is in the applicant’s favour therefore she was correct in appealing against the entire judgment. The fact that the second respondent consented to judgment does not bar the applicant from appealing against the entire judgment especially when he gave evidence in the first respondent’s favour thereby supporting her case. It is therefore my view that the argument by Mrs. Mtetwa cannot stand. The appeal is not fatally defective neither is the relief sought thereof.

In the result, I make the following order:

The application for condonation and extension of time be and is hereby granted.

The notice of appeal shall be filed and served within 5 days of this order.

There shall be no order as to costs.

Muzanga Mandaza & Tomana, applicant’s legal practitioners.

Messrs Mtetwa & Nyambirai, 1st respondent’s legal practitioners.