Reverend Clement Nyathi v The Trustees for the Time Being of the Apostolic Faith Mission of Africa & 6 Ors

### Preamble
Judgment No. SC 187/20
1
Chamber Application No. SC 399/20
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DISTRIBUTABLE   (172)

REVEREND     CLEMENT     NYATHI

v

(1)     THE     TRUSTEES     FOR     THE     TIME     BEING     OF     THE APOSTOLIC     FAITH     MISSION     OF     AFRICA       (2)      REVEREND ROSEWELL     ZULU      (3)     PATSON     HLABANGANA      (4)     HERBERT KELEB     YALALA     (5)     CLEVER     MEMBERE    (6)     CHIRILELE MUGOYANA    (7)     THE     APOSTOLIC     FAITH     MISSION      IN     AFRICA

SUPREME COURT OF ZIMBABWE

HARARE:  OCTOBER 27, 2020 & DECEMBER 21, 2020

K. Ncube and S. Mupunga, for the applicant

T. Mpofu and R. Moyo, for the respondents

IN CHAMBERS

CHAMBER APPLICATION FOR REINSTATEMENT ON THE ROLL OF AN APPLICATION FOR CONDONATION AND EXTENSION OF TIME WITHIN WHICH TO NOTE AN APPEAL

MAVANGIRA JA:

[1] On 20 May 2020 the applicant filed a chamber application for condonation and extension of time within which to note an appeal under case No. SC 184/20. The applicant did not attach to his application a copy of the judgment that he sought to appeal against. The application was struck off the roll.

[2] The applicant has now filed this application seeking the reinstatement of the application in SC 184/20 on the basis that he has since obtained the reasons for the order of the court         a quo that he intends to appeal against. The intended appeal relates to a judgment of the High Court in HC 2406/19. The judgment was handed down on 25 March 2019.

[3] This application is vehemently opposed by all the respondents mainly on the basis that by his own conduct the applicant has non-suited himself as a candidate for this Court’s indulgence and exercise of its discretion in his favour. It is averred that this application is premised on “a mischievous attempt to mislead this Honourable Court and outright untruths.” They have described the application as “an insult to the intelligence of this Honourable Court, an abuse of court process” which for the said reasons should be dismissed with costs on the legal practitioner and client scale.

[4] For a proper appreciation of the relevant factual background of this matter it will become unavoidable to quote in extenso the contents of correspondence that emanated from the applicant’s legal practitioners.

[5] After the application in SC 184/20 was struck off the roll on 9 June 2020 the applicant’s legal practitioners wrote to the registrar on 19 August 2020 in the following terms:

“When this Chamber Application was heard before the Honourable BHUNU JA on the 9th June 2020, he directed that a copy of the judgment by the Honourable PHIRI J be made available before the matter could proceed.

As such the matter was struck off the roll. (the underlining is added)

We attach hereto (a) copy of the full judgment.

Consequently, we kindly request that this matter be re-set down.”

[6] On 24 August 2020 they again wrote to the registrar in the following terms:

“The above matter and our correspondence of the 19th August 2020 refers.

We also refer to our tele-conversation of the 20th August 2020 in which you advised that since this matter was struck off the roll it cannot be re-set down but if we want to pursue it, we would need to file a fresh application.

It does appear to us that there could have been an error in respect of the actual order made. At the hearing of the Chamber Application before the Honourable BHUNU JA on the 9th of June 2020 there arose a question as to the reasons behind the order made by the court a quo per the Honourable PHIRI J.

In particular counsel for the respondent sought to argue that the order by the learned PHIRI J was by consent and we argued otherwise.

The Honourable BHUNU JA indicated that it therefore becomes necessary that the full judgment with the reasons thereof be availed so the court could ascertain the basis upon which the order was made. He thus indicated that the matter was to proceed upon the judgment being made available.

It was therefore the understanding of all the parties that the matter was not being struck off but rather being removed from the roll so that it could be re-set down when the judgment was available.

It is for that reason that after the hearing we then diligently sought to obtain the judgment from the High Court.

We only managed to obtain it on the 19th of August 2020 and immediately forwarded it to yourselves through our letter of the 19th of August 2020 so that the matter could be re-set down.

We noticed however and following our discussion, that the order was stating that the matter was struck off the roll.

Bearing in mind that the matter was not struck off due to some technical defect in the application but rather due to the Supreme Court itself directing that the judgment of the court a quo be availed, it would therefore have been a typographical error that the order stated that the matter is struck off the roll as opposed to being removed from the roll.

Now that the judgment of the court a quo has been obtained as directed we believe this matter ought now to proceed.

Further, given the foregoing explanation, we believe the narration in the order that the matter was struck off the roll must have been a typographical error as the understanding was not that the Chamber Application had been disposed of but rather that the matter would proceed upon the judgment being availed.

That being the case, it is therefore within the purview of the Honourable Judge to correct the error and reflect the intention of all the parties at the time.

We therefore request that you kindly place the record before the Honourable         BHUNU JA to correct that typographical error to reflect that the matter was removed as opposed to being struck off the roll.”

[8] The correspondence between the registrar and the applicant’s legal practitioners was copied to the respondents’ legal practitioners who responded as follows:

“It is unavoidable that we react ….

Suffice to point out that;

it is not true that the Honourable Justice Bhunu indicated that the matter would proceed upon judgment being made available. That simply did not happen.

it is similarly not true that ‘the understanding of all the parties was that the matter was not being struck off the roll but was being removed from the roll so that it could be reset down when the judgment was available.’

it is accordingly not true that the order of this Honourable Court striking off the matter with costs is a typographical error.

at the commencement of the hearing we took points in limine in which among other things we drew the Court’s attention to the fatally defective nature of the Applicant’s application.

In the ensuing engagement between the Honourable Judge and the Applicant’s legal practitioners the Applicant’s legal practitioners conceded that the application had to be struck off the roll with costs.

In the circumstances we are shocked and saddened by the apparent attempt to distort what transpired at the hearing of 9 June 2020.”

Finally, on 28 August 2020 the registrar wrote to the applicant’s legal practitioners and stated:

“Your correspondence regarding the above matter were (sic) placed before the Honourable BHUNU JA who commented as follows:

‘The order speaks for itself. The application was struck off the roll with no order as to costs by consent of the parties. There are no qualifications or conditions pertaining to the order.’

As such our file remains closed.”

[9] In his founding affidavit the applicant states that he brings “the application in reliance upon the provisions of para 5 of Practice Direction 3 of 2013. Practice Direction 3 of 2013 provides inter alia:

“Struck off the roll

3.The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4.In accordance with the decision in Matanhire vs BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S vs Ncube 1990 (2) ZLR 303 (SC). If a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5.Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.” (the emphasis is added)

[10] The failure by the applicant to attach the judgment of the High Court in his application in case No. SC 184/20 was obviously a failure to comply with r 43 (i) (b) of the rules of this Court. The rule provides as follows:

“43 (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.”  (the underlining is added)

In Cuthbert Elkana Dube v Premier Service Medical Aid Society & Anor, SC 73/19          GARWE JA (as he then was) stated at p 11 of the judgment:

“[31] A practice directive should complement or enhance existing rules of court and not render such rules nugatory. Everything considered therefore, and in order to do justice to litigants who fall foul of the requirements of the Rules of court, paragraph 5 of Practice Directive 3/13 must be regarded as subservient to r 43 of the Rules of this Court. …”

[11] It follows therefore that the striking off of the matter from the roll by BHUNU JA was the appropriate order that could be made in the circumstances. That was so because the application was fatally defective as a result of the said failure. As is clear from a reading of the rule, the attachment of the judgment against which it is sought to appeal is peremptory.

[12] The application before BHUNU JA having been fatally defective, it was properly struck off the roll as in effect there was nothing before him.

[13] In casu, the attempt, by the applicant, to pay no regard to and side-line para 3 of Practice Direction 3 /2013 by heading straight to para 5 thereof is most futile. Paragraph 5 cannot and was never meant to breathe life into stillborn purported applications. There having been no application before BHUNU JA as observed above, there cannot be any talk of reinstatement of the same. The McFoy principle is so trite a principle of law that it is, in my view, unnecessary to expound more on this. There is nothing to reinstate. The application has no leg to stand on and is devoid of any merit.

[14] In the applicant’s letters to the registrar that have been quoted above, the applicant prevaricated between an acknowledgment that the matter had been struck off the roll due to the non-attachment of the judgment of the court a quo and a subsequent change of stance to the effect that the order stating that the matter had been struck off the roll was due to a typographical error as the matter was in fact merely removed from the roll. The applicant went to the extent of requesting that the record be placed before BHUNU JA for him “to correct that typographical error to reflect that the matter was removed as opposed to being struck off the roll.”

[15] The claim that the matter was removed from the roll was not only hotly contested by the respondents, it was also shown to be untrue by BHUNU JA’s comments as reflected in the registrar’s letter of 28 August 2020, also quoted above. The averments that the matter had been removed from the roll were thus not only untrue but also baseless The applicant has thus not only fallen foul of the law by seeking to obtain an order reinstating a nullity, he is also wanting in a grave manner with regard to his failure to be candid with the court. The contention by the respondents that the application is inter alia, an abuse of court process is well founded in the circumstances. So is the request that the application be dismissed with costs on the higher scale.

[16] In the result I make the following order

The application is dismissed with costs on the legal practitioner and client scale.

Kossam Ncube & Partners, applicant’s legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners.