Norbert Machingauta v Registrar of the Supreme Court & Air Zimbabwe (Private) Limited

### Preamble
Judgment No. SC 81/25
1
Chamber Application No. SC 618/25
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REPORTABLE	(81)

NOBERT     MACHINGAUTA

v

REGISTRAR     OF     THE     SUPREME     COURT     (2)    AIR     ZIMBABWE     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

HARARE 26 AUGUST 2025 & 11 SEPTEMBER 2025

S.T. Mutema, for the applicant

O. Kondongwe, for the respondent

IN CHAMBERS

MAVANGIRA JA:

[1]   This is an opposed composite chamber application in which the applicant seeks relief in the following terms:

“1.   Application for Condonation for failure to comply with r 61 (5) of the Supreme Court Rules, 2025 be and is hereby granted.

2. Application for Condonation for none compliance with r 76 (2) of the Supreme Court Rules, 2025 be and is hereby granted.

3. The application for reinstatement of appeal made in terms or (sic) rule 76 (2) be and is hereby granted.

4. The application for extension of time within which to adopt security for costs tendered under SC160/25 as good and sufficient costs be and is hereby granted.

5. Application for partial exemption from payment of any further security for costs than that which has been paid be and is hereby granted.

6. The first respondent be and is hereby directed to set the appeal under SC 160/25 down on the earliest available date.

7. The second respondent’s failure to respond to the request for a waiver and alternatively a tender of costs be and is hereby deemed deplorable and consequently second respondent is ordered to pay costs of suite (sic) on attorney Client Scale.”

The applicant states in his founding affidavit that he makes the application in terms of r 76 (2) as read with r 61 (3) of the Supreme Court Rules, 2025.

[2]  	The applicant was previously employed as the Strategy and Economics Airline Manager of the second respondent. The first respondent is the Registrar of the Supreme Court of Zimbabwe, cited in her official capacity and responsible for the administration of court processes including the enforcement of rules governing appeals.  The second respondent is a company duly incorporated under the laws of Zimbabwe. It has opposed this application.

[3]   This chamber application is a culmination of events following the dismissal of an appeal filed by the applicant under SC 160/25.  On 25 April 2025 the first respondent wrote to the applicant and the second respondent advising them that r 55 (6) of the Supreme Court Rules, 2018, took effect automatically upon the expiry of the one-month period and accordingly, the applicant’s “appeal was deemed abandoned and dismissed by operation of law at the close of business on 10 April 2025.”  This was said to be on the basis that there could not have been a valid payment of security for costs outside of a mutual agreement by and between the parties or failing which, the Registrar’s involvement by way of a determination of the amount or nature of the security to be furnished.

[4]   The applicant thereafter filed an application under SC 377/25 for reinstatement of his appeal.  The application was struck off the roll on 4 June 2025.  The applicant alleges that this was because his application was not accompanied by an application for condonation and exemption from paying security for costs.  Furthermore, that, as a payment had been made, he ought to have sought adoption of the said payment as sufficient security as opposed to total exemption.

[5]    On 2 July, 2025, the applicant filed a second application for Condonation under SC 501/25 seeking to address the shortcomings identified in the previous application.  This application was also struck off the roll on 23 July 2025 reportedly, due to the omission to simultaneously seek condonation for the late filing of the application for reinstatement, as the 15 day period following the Registrar’s dismissal as stipulated under r 76 (2), had since elapsed.

[6]   The present application has been filed in an effort to regularize the procedural deficiencies and shortcomings in the two earlier applications. The applicant seeks condonation for non-compliance with r 76 (2), an extension of time within which to apply for reinstatement and an order adopting the amount already tendered as sufficient security for costs.  The full terms of the relief sought are recited in para 1 above.

[7]  	The applicant has given a narration of what led to the appeal under SC 160/25 being deemed abandoned and dismissed as summarized in the ensuing paras.

[8]   The applicant’s contention is that after undertaking to pay security for the respondent’s costs in the notice of appeal filed on 10 March, 2025 under SC 160/25, it was incumbent upon the second respondent to respond and indicate whether it was waiving security and if not, to indicate the amount that it considered good and sufficient security within the time period prescribed in the Rules and as requested by the applicant in the said notice of appeal. The second respondent did not respond and on 2 April 2025, the applicant’s legal practitioners wrote a letter to the second respondent’s legal practitioners requesting a waiver of security for costs if the second respondent was amenable thereto. The letter further indicated that if the request was not acceptable, the applicant was tendering to pay the equivalent of USD 300 in local currency as security for costs.  The second respondent was given 48 hours within which to indicate its position.  Furthermore, that upon the expiry of 48 hours “an inference that the offer to waive security for costs is accepted will be taken as your response and we will lodge this letter with the registrar for the purpose of notifying her of the waiver.”

[9]   The applicant further contends that the fact that the letter which had been written within the stipulated time limits had been ignored was the reason why he failed to engage the registrar for determination of security for costs.  He states that the second respondent’s conduct caused him to believe that “waiver by mutual consent was being accepted.” He further states in his founding affidavit that, at any rate, on 9 May, 2025, he paid RTGS            10 000 as the equivalent of the tendered amount of USD 300, in compliance with r 61 (2) and advised the registrar accordingly.  If the second respondent needed more, it was merely a matter of indicating the higher amount within the time limits given in the letter.  However, this was not done, again creating the impression that the amount tendered was acceptable to the second respondent.

[10]    The applicant also states that after he had made payment and advised the Registrar about it, that is when the second respondent’s legal practitioners wrote a letter to the registrar asking how and when the determination of security for costs was done without their participation.  The second respondent averred that the payment made by the applicant was made unilaterally and must be rejected for being unlawful and the matter ought to be regarded as abandoned and dismissed for failure to pay the same in terms of the rules.  After seeking comments to the letter from the applicant’s legal practitioner, the Registrar replied and advised, inter alia, that she disagreed that the second respondent’s failure to respond implied consent. Furthermore, that on getting no response, the applicant ought to have approached the Registrar for a determination of the quantum of security for costs.  It is in that letter that the Registrar concluded by stating the following:

“Accordingly, r 55 (6) took effect automatically upon the expiry of the one-month period. Therefore, the appeal was deemed abandoned and dismissed by operation of law at the close of business on 10 April 2025.

Should any party feel aggrieved, they are advised to proceed in accordance with the applicable rules.”

[11]   In his oral submissions at the hearing, Mr Mutema, for the applicant, stated that by and large, he was abiding by the self-explanatory papers filed in the application and he prayed for an order in terms of the draft attached to the application, which draft order is also quoted in para 1 above.

[12]   Mr Kondongwe, for the second respondent, had at the onset of proceedings indicated that he was no longer pursuing the preliminary points raised in the opposing papers.  Besides mentioning this so that it is on record, I find it unnecessary to state them or relate to them any further.  After the submissions by Mr Mutema, counsel submitted firstly, that the application filed by the applicant is not an admission of infraction of the Rules but a challenge to the position taken by the Registrar.  He submitted that the argument by the applicant in this application was presented to the Registrar by the applicant and the Registrar responded highlighting pertinent Supreme Court authorities to the effect that an applicant has the onus to ensure that the requirement of security for costs is met within the stipulated time frame and that if there is no response or agreement from the respondent, an applicant must ask the Registrar to make the necessary determination.  It was also his submission that the Registrar’s response was in accordance with the law.  He argued that the applicant therefore ought to have proceeded by way of review.

[13]   Secondly, Mr Kondongwe argued that the application ought to be dismissed with costs because in his founding affidavit, the applicant did not satisfy a crucial element that must be established in such applications as he did not demonstrate that his intended appeal has prospects of success.  In his submission, the intended appeal has no prospects of success at all.  The attempt to purge this omission in the answering affidavit cannot save the application, so he argued.

[14]   In his reply, Mr Mutema submitted that the Registrar’s letter was written after the expiry of the stipulated time frame.  Further, that the Registrar was not given the full facts and was misguided in taking the view or attitude that the applicant’s legal practitioner had not engaged the second respondent’s legal practitioners.  He also submitted that with regard to the prospects of success of the intended appeal, I should have regard to paras 5 and 6 of the founding affidavit where reference is made to an Annexure where the prospects of success are set out.  He prayed for the success of the application albeit with amendments that he conceded would have to be made in the event that the application succeeded.

[15]    In Doves Funeral Assurance (Private) Limited v Harare Motorway (Private) Limited & Ors SC 64/23, in dealing with an opposed chamber application for condonation for non-compliance with rules and for reinstatement of an appeal in terms of r 70 of the Supreme Court Rules, 2018, this Court stated the following:

“[24]   … I entirely agree with the position taken by the respondents that the present application is incompetent. The applicant flatly refuses to address the issue of prospects of success in its founding affidavit. …

[25]   …later on capitulated and based on the authority of Mhungu v Mtindi supra, contended that for the prospects of success on appeal I should have regard to the main appeal record. The judgment appealed against and the Notice of Appeal are contained therein. He expects me to sift through the main appeal file and extract what I may consider to be the prospects of success in the appeal. Firstly, there is no such invitation by the applicant in the founding affidavit for me to have reference to that file. Secondly, there is no such obligation on a judge dealing with such an application. In John Chikura & Anor v Al Shams Global BVI Limited SC17/17 the following was stated in respect of prolix grounds of appeal:

‘It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of ‘grounds of appeal’ in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal’

In my view the same sentiments apply with equal force to the applicant’s submission that I should go through the record of appeal to determine whether there are prospects of success on appeal. These should, however, be immediately ascertainable from the applicant’s founding affidavit. Thirdly, this flies in the face of the authorities referred to above.

[26]   The same reasoning applies to the applicant’s failure to address prospects of success in respect of the issue of Condonation. …’”

[16]   In Lunat v Patel & Anor SC142/21 this Court was dealing with an application for

condonation of the late filing of an appeal and extension of time within which to appeal.

At p 7 the following was stated:

“The passages in the founding affidavit that I have reproduced above do not even begin to show prospects of success.  It is not enough for the applicant to refer to the grounds of appeal and expect the court to extrapolate what the prospects of success are.  The founding affidavit presents the applicant with an opportunity to set out his case.  I cannot piece it together for him.  As stated in Sibanda v T.S. Timbers Building Supplies (Pvt) Ltd SC 50/15 a bare and unsubstantiated averment that prospects of success exist is not sufficient.”

[17]   In Unki Mines (Private) Limited v Dohne Construction (Private) Limited SC 18/23, in dealing with an opposed chamber application made in terms of r 43 of the Supreme Court Rules, 2018, for non-compliance with the Rules and for extension of time in which to appeal, this Court stated the following at pp 7-8:

“It is clear from the record that the applicant did not canvass the prospects of success.  Failure to canvass prospects of success in a founding affidavit is fatal to an application of this nature as correctly submitted by Mr Mpofu.  It is trite law that an application stands or falls on the averments made in the founding affidavit. According to Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed p 80 the learned authors state as follows:

‘The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon to affirm or deny. If the applicant merely sets out a skeleton in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.’”

[18]  	Paragraphs 5 and 6 of the applicant’s founding affidavit to which I have been directed with regard to the prospects of the applicant’s intended appeal as stated in para 14 above read as follows:

“Facts

5. I have indicated that I once filed the application for reinstatement under                             SC 377/25 and subsequently under SC 501/25. See the composite application under SC501/25 hereto attached as annexure “A”.

6. I wish to adopt the averments made in this application as though they are specifically traversed save to add a few things which accords (sic) with the reasons why the application was struck off the role.” (sic)

[19]   No annexure is marked “A”. The lack of such identification may have been due to an oversight because some pages of the application under SC 501/25 are attached to the present application.  These pages include a copy of the founding affidavit thereto, paras 5 and 6 of which read as follows:

“Facts

5. I have indicated that I once filed the application for reinstatement under                             SC 377/25.  See the application hereto attached as annexure “A”.

6.  I wish to adopt the averments made therein in this application as though they are specifically traversed save to add a few things which accords (sic) with the reasons why the application was struck off the role. (sic)

[20]   In similar fashion to what has been observed in para 19 above, no document is marked “A”. However, some pages of the application under SC 377/25 are attached. These pages include what purports to be a copy of a founding affidavit.  However, the document is incomplete in the sense that there is no portion showing the signatures of the deponent and the Commissioner of Oaths or the commissioning of the affidavit and the date and place where this happened.  The purported affidavit spans some 7 pp and 34 paras.                      I have not been pointed to any specific paragraphs.  I note however, that the following headings appear therein: NATURE OF APPLICATION (para 4), BACKGROUND (para 5), THE FACTS (paras 6 -27), THE LAW (paras 28 – 34) after which there appears a prayer for an order in terms of the draft order and the document ends there.

[21]   The journey traversed so far in paras 14, 18, 19 and 20 is the pathway charted by the applicant for the judge to make out the prospects of success of his intended appeal.  The enunciation by Makoni JA in the Doves Funeral Assurance case supra at p 9 of the judgment and in numerous other cases, seems to have fallen on hard rock. “These (prospects of success) should, however, be immediately ascertainable from the applicant’s founding affidavit.” Similarly, in the Lunat case supra at p 7, Mathonsi JA clearly set out that “The founding affidavit presents the applicant with an opportunity to set out his case.  I cannot piece it together for him.” Again, in the Unki Mine case supra at p 8 Musakwa JA stated “The applicant ought to have explained in detail why it believes its intended appeal has prospects of success rather than merely stating so.  The applicant has an obligation to satisfy the court that once an application for condonation is granted, it has prospects of succeeding on the merits of the matter.”

[22]   It seems clear to me that the applicant expects the judge in this matter to piece his case together for him.  As clearly stated in the Doves Funeral Assurance case supra, there is no such obligation on a judge dealing with such an application.

[23] It is trite that in matters of this nature, a consideration of the prospects of success of the intended appeal is a requirement of the law.  A judge does not scour the papers filed by an applicant in search of what those prospects are and thereafter determine that aspect. Equally, if not more importantly, the respondent needs to know the applicant’s averments on the said factor so that he or she or it may respond thereto.  In casu, the second respondent cannot be faulted for averring or contending that the applicant has not, in this application, addressed the prospects of success of the appeal that he craves to be reinstated.  There is a plethora of case authorities from this court on this subject.  In casu, the applicant has adopted a cavalier attitude and has failed to show the requisite concern to something so serious and important.  The unfortunately inevitable result is a dismissal of the application.  In this regard, in terms of the proviso to r 67 of the Rules of the Supreme Court, 2025, two other judges of this Court have concurred with me as appears hereunder.  Costs will follow the result.

[24]   It is accordingly ordered as follows:

1. The application be and is hereby dismissed.

2. The applicant shall pay the second respondent’s costs.

KUDYA JA      	:                       I agree

MUSAKWA JA	:                       I agree

Stansilous & Associates Law Firm, applicant`s legal practitioners

Dube, Manikai & Hwacha, respondent`s legal practitioners