Tapera Sengweni v The Law Society of Zimbabwe

### Preamble
Judgment No. SC 113/20
Chamber Application No. SC 149/20
REPORTABLE (105)
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REPORTABLE	(105)

Chamber Application – Ex tempore

TAPERA     SENGWENI

v

THE     LAW     SOCIETY     OF     ZIMBABWE

SUPREME COURT OF ZIMBABWE

MATHONSI JA

HARARE: JULY 30, 2020

Applicant in Person

C. Z. Chikara, for the respondent

MATHONSI JA:	This is an application for condonation for the late filing of an appeal and for an extension of time within which to note an appeal. The application is made in terms of r 43 (1) and (3) of the Supreme Court Rules, 2018.

FACTUAL BACKGROUND

Since the Legal Practitioners Disciplinary Tribunal (the tribunal) delivered judgment on 30 October 2019 in which it dismissed the applicant’s application for rescission of judgment, the applicant has tried unsuccessfully to appeal against that judgment.

On 18 November 2019 the applicant filed a notice of appeal with this Court but omitted to serve it on the Registrar of the High Court as required by the peremptory provisions of r 37 (2) of this Court’s rules. The appeal was deemed abandoned with the requisite notice given to the applicant. Since then the applicant has filed two unsuccessful applications in SC 11/20 and SC 86/20 trying to right the wrong. On both occasions the applicant had to withdraw the application owing to its defectiveness.

This application, which is opposed by the respondent, is therefore the third attempt by the applicant to obtain leave to appeal out of time. It also has its own frailties. By order granted on 18 October 2013, the Tribunal deleted the applicant’s name from the register of legal practitioners for indiscretions arising from his handling of trust funds. This was at the instance of the respondent. The applicant tried to contest that decision by applications filed at the High Court without success.

He then brought an application before the Tribunal for rescission of its own judgment. In dismissing the application on the ground that, as a creature of statute, it lacked jurisdiction to rescind its own decisions, the Tribunal made the critical point at p 3 of the cyclostyled judgment:

“A distinction must be made between the two cases in that in the Sengweni case, Mr Sengweni was represented by counsel and therefore was deemed to be present (despite the now challenge that counsel did not have instructions to represent him). Concessions were made on his behalf and the order was granted with his ‘consent’. His counsel had indicated that he had accepted liability and intended to pay the amount owing. The decision of the Tribunal was therefore on the merits.”  (The underlining is for emphasis)

Despite the clear and unambiguous pronouncement by the Tribunal that the applicant’s deregistration was based on the merits and that he was not in default, having been represented by counsel, the applicant has insisted in his proposed appeal and in this application that it was a default judgment. Without citing any authority for such proposition, the applicant has insisted that, as a default judgment, the judgment on deregistration is susceptible to rescission by the Tribunal. It is the Tribunal’s refusal to exercise such jurisdiction which the applicant would like to bring on appeal so that the Supreme Court can spend time interrogating that assertion not backed by any legal authority.

In terms of r 70 (2) of this Court’s rules where an appeal is regarded as abandoned, the appellant may, within 15 days of receiving notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause. This application is not in terms of r 70(2), the applicant having exhausted his ‘quota’ in that regard. He has opted to proceed in terms of r 43 (1) and (3) for an extension of time within which to appeal.

What the court has regards to in considering an application of this nature was set out by MALABA JA (as he then was) in Maheya v Independent Africa Church 2007 (2) ZLR 319 (S) at 323 B-C. He said:

“In considering applications for condonation of non-compliance with its rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the court and the avoidance of unnecessary delays in the administration of justice.”

What has come out from recent case law as the main factors for consideration in deciding whether to grant the indulgence of condonation for the late filing of an appeal are essentially the following:

a.  The extent of the delay;

b. The reasonableness of the explanation proffered for the delay; and

c. The prospects of success on appeal.

See also Khumalo v Mandeya & Anor 2008 (2) ZLR 203 (S); FBC Bank Ltd v Chiwanza SC 31/17. The applicant’s explanation for the delay is that he filed a proper appeal timeously although it was “fatally defective”. That is all the applicant rendered as an explanation. It is certainly not enough given that the judgment sought to be impugned was delivered as far back as 30 October 2019. This application was filed 5 months later. More needs to be said about that period of 5 months.

As stated by GWAUNZA JA (as she then was) in Delta v Murandu SC 38/15, an applicant approaching the court for relief is not expected to make bold, unsubstantiated averments and leave it to the court to decide what to make of them. The case is that of the applicant and not the court, although it is clear from the circumstances that the applicant’s troubles emanate from his legal practitioner’s lamentable lack of diligence.  In fact even at the hearing of this application the applicant had to elect to prosecute the application in person because his legal practitioner arrived in court very late.

It is trite that where the legal practitioner is blamed for the failure to comply with the rules an affidavit must be obtained from that legal practitioner explaining the circumstances of his or her failure to act in accordance with the dictates of the rules. No affidavit was provided by the legal practitioner in question, who has not even been mentioned by name.

What it means is that no explanation has been given for the applicant’s failure to serve the initial notice of appeal on the registrar of the High Court. It is that failure which is in fact the root cause of the applicant’s non-compliance with the rules. In any event, a legal practitioner’s ineptitude is not a reasonable ground for granting condonation. As stated in Apostolic Faith Mission in Zimbabwe & Ors v Murefu SC 28/03:

“There is a limit beyond which a client cannot escape the consequences of the conduct of his legal practitioner and it seems to me that this limit has been exceeded in this case.”

If ever there was any hope for the applicant, it completely disappears upon consideration of the prospects of success of the proposed appeal. The applicant has insisted on creating facts of his own not considered by the Tribunal. Having done that he would want to appeal to this Court on non-existent facts. The Tribunal’s judgment makes it clear that the judgment sought to be rescinded was not a default judgment. Mr Uriri represented the applicant and consented to his deregistration.

The Tribunal could not be invited to revisit its own judgment and rescind it. It was functus officio. At no point did the Tribunal advert to a rescission of a default judgment. It maintained that it was being asked to rescind its own decision which it could not do for want of jurisdiction. In any event, as correctly observed by the respondent, the Tribunal could not grant default judgment. It is required to conduct an inquiry and every result of such inquiry is a decision on the merits. As such, it can be appealed against.

It is not clear why the applicant has continued on a tangent. His explanation that there is no other way through which he can overturn the decision to de-register him except through a rescission of judgment is informed more by lack of proper legal advice than anything else.

Finally, I have to deal with the submissions made by Mr Sengweni that both the secretary of the respondent and Mr Chikara who appeared for the respondent had no authority to represent it. He submitted that in terms of a provision of the Law Society of Zimbabwe by laws S.I. 314/82 only the council elected by members can represent the respondent. Should the council desire to instruct counsel, it must do so through a power of attorney. I do not agree.

In terms of s 73 of SI 314/82:

“Whenever the council has decided to appear in any legal proceedings, it may, by resolution, delegate to the president, vice president or other councilor or councilors, the authority, with power of substitution, to employ legal practitioners and do any act or sign any document on behalf of the society in the course of such proceedings.” (The underlining is for emphasis)

Clearly therefore, the council may delegate and also substitute outside of the delegated persons provided by the By-Laws. The respondent has provided proof of substitution of its secretary to represent it in the proceedings against the applicant. The matter should end there.

Although the respondent had prayed for costs on the admonitory scale in its opposing affidavit, Mr Chikara did not persist with that prayer in his submissions. I will therefore not grant such costs.

In the result, the application is hereby dismissed with costs.

Mwonzora & Associates, applicant’s legal practitioners