Tichaona Tasiyana v Shingirayi Sharara

### Preamble
Judgment No. SC 140/20
Civil Appeal No. SC 280/20
1
REPORTABLE
(129)
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REPORTABLE	(129)

TICHAONA     TASIYANA

v

SHINGIRAYI     SHARARA

SUPREME COURT OF ZIMBABWE

MATHONSI JA

HARARE, SEPTEMBER 23, 2020 & OCTOBER 21, 2020

IN CHAMBERS

Ms.   F. Chinwawadzimba, for the applicant

Masango, for the respondent

MATHONSI JA: 	This is an application for condonation of the late noting of an appeal.  It does not state the rule of this Court in terms of which it is made, a situation not helped by the failure in both the body of the application and the draft order sought, to advert to the need to extend the time within which to appeal.  It is common cause that the time within which to appeal lapsed long back.

THE FACTS

The dispute between the parties involves ownership and occupation of flat number 41/388 Mufakose Flats, Harare (the property). The property initially belonged to Richard and Elizabeth Daniels who were husband and wife.  There was a time when Richard was unwell and based outside Zimbabwe.  Elizabeth, his wife, may have taken advantage of that to sell the property to the present applicant by agreement of sale signed by the parties.

Later, the property was ceded to one Virginia Tasiyana.  Richard however recovered enough to institute proceedings over the property in the High Court against, inter alia, Virginia, Elizabeth and the applicant. In that court process, issued under case number HC5938/07, Richard sought an order restoring title in the property to him.  He was successful and on 23 February 2010, the High Court granted Richard an order declaring null and void the agreement of sale entered into between his wife Elizabeth on the one hand, the applicant and   his wife on the other hand.  The order also provided for the eviction of the applicant from the property.

No sooner had Richard scored that victory in the High Court than he passed away sometime in 2012 before the reversal of title to him, in terms of the court order of 23 February 2010.  Claiming to be the registered owner of the property, the applicant brought an action in the Magistrates court seeking the eviction of the respondent from the property.  The applicant alleged that the respondent had “invaded” his property in 2014.

The respondent contested the claim and filed a plea- in bar of prescription, absence of jurisdiction on the part of the court, non-joinder of Richard’s surviving spouse and res judicata, the matter having been determined by the High Court by its judgment of 23 February 2010.  The magistrates court found that the applicant had failed to prove ownership of the property and dismissed the claim.

The applicant was aggrieved.  He appealed to the High Court.  He fared no better in that court which also found that he had failed to establish ownership of the property.  The High Court rejected the applicant’s assertion that, because the judgment of the High Court declaring the sale agreement by which the applicant claimed ownership had been handed down in 2010, it was superannuated in terms of the law.

The applicant’s position has been that although the High Court had declared the agreement of sale by which he had acquired the property null and void, he had remained the registered owner as Richard had not had ownership transferred back to his name by the time he died in 2012.  For that reason, so the applicant’s argument goes, after superannuation, he was at liberty to vindicate the property against the respondent who is in occupation.  Having rejected that argument, the High Court dismissed the appeal.

Still the applicant would have none of it.  He sought to appeal to this Court against the judgment of the High Court. As the judgment was handed down on 12 May 2020, the applicant had 15 days within which to appeal in terms of r 38 (1) of the Supreme Court Rules, 2018.  That period expired on 3 June 2020 without the applicant noting the appeal.  Accordingly he has made this application for condonation for failure to comply with the rules of court.

THE APPLICATION

In his founding affidavit, the applicant explained that he works as an engineer in Botswana.  He lost his cellphone and was thus unreachable when his legal practitioners sought after him after noting the judgment.  Although his lawyer sent him emails advising him of the judgment, he was unable to access his emails between 12 May 2012 and 2 June 2020.  On the latter date he finally managed to confer with his lawyer.

The applicant stated that he immediately instructed his lawyer to note an appeal.  He says the lawyer tried to file the notice of appeal on the last day of the dies inducae, 3 June 2020.  The Registrar of this Court observed typing mistakes on the notice which the lawyer was asked to attend to before the notice could be accepted.  The appeal could not be filed by 3 June 2020 for that reason.

So much for the explanation for inaction between 12 May 2020 and 3 June 2020 which, though clearly tenuous indeed, is still an explanation I cannot ignore.  That is not the applicant’s problem.  His biggest challenge is the deafening silence in the application seeking condonation, on his failure after typing errors were observed by the Registrar in the appeal notice, to act for a whole period of a month between 3 June 2020 and 3 July 2020 when this application was filed.

It can scarcely be said that the applicant needed a full month to correct typing errors observed by the Registrar or to compile a four paged founding affidavit.  There is no explanation at all for that delay.

Regarding the prospects of success on appeal, I note that the draft notice of appeal contains three grounds of appeal.  On the main, the grounds speak to the applicant’s insistence that the definitive judgment of the High Court declaring the agreement of sale upon which his claim to the property is based, null and void, is superannuated.  If the door is opened for the applicant to appeal, he intends to persist with his argument that he was free to evict the occupants of the property because the judgment was superannuated.

I note in passing that although the High Court, in dismissing the applicant’s appeal, embraced its own judgment in Nzara & Ors v Kashumba N.O & Ors HH 151/16, that judgment was taken on appeal to the Supreme Court.  In Nzara & Ors v Kashumba N.O & Ors SC 18/18, the Supreme Court set aside the earlier High Court judgment.

In doing so, the Supreme Court did not, as submitted by Ms Chinwawadzimba, find that a judgment declaring the respective rights of parties superannuates. The High Court decision was overturned precisely on the basis that after it had found that the two stands in dispute had been lawfully donated to the second to the fourth appellants, it had, instead of sanctioning the owners’ right of vindication, had allowed a purchaser in terms of an unlawful sale, more time to pay the purchase price.  By doing so the court had failed to assert the right of ownership.

THE LAW

A party that has failed to comply with the provisions of the rules of the court is required to apply for condonation for the infraction.  In doing so, an adequate explanation for the failure to comply must be given.

The explanation for the delay must address the broad factors to be considered by the court in exercising its discretion whether to grant the indulgence or not.  These are:

(a)	the extent of the delay;

(b)	the reasonableness of the explanation for the delay; and

(c)	the prospects of success on appeal.

See. Mzite v Damafalls Investments (Pvt) Ltd & Anor SC 21/18

The position of the law is that these factors are considered conjunctively and cumulatively. Where the explanation for the delay is unsatisfactory, the court may still exercise its discretion in favour of granting condonation where the prospects of success on appeal are good.  See Georgious & Anor v Standard Chartered Finance Zimbabwe Ltd SC 183/99.

More importantly, it is time to remind legal practitioners appearing before the courts that condonation is not simply granted merely because a party has sought it.  Requirements for a successful application for condonation must be met before it is granted.  This view was eminently expressed by Ziyambi JA in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society SC34/17 where she said:

“An applicant who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction.  He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.  An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed”

APPLICATION OF THE LAW TO THE FACTS

I have stated that the explanation rendered by the applicant for failure to act or to bring this application for a full month after his faulty notice of appeal was rejected, is completely missing.  It should be understood that what calls for an explanation is not just the failure to note an appeal on time but also the failure to make an application for condonation timeously.

See Viking Woodwork (Pvt)Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) at p251.

In light of that, it cannot be said that the applicant has given a reasonable explanation for the delay.  However, I am mindful of the fact that the delay itself is not inordinate and one would have been inclined to overlook the tenuous reasons for failure to act timeously had the prospects of success on appeal been good.

I say so because, where the explanation for the delay is far from satisfactory, the court will still exercise its discretion in favour of granting the indulgence of condonation provided the proposed appeal is arguable.  The role of the judge in an application of this nature is to stand sentinel at the gates of the court guarding against those desirous of making a grand entrance into the court with unarguable appeals.  In respect of those, the gate must be firmly shut.

The applicant is one such litigant.  The applicant’s cause in the lower court took the form of a rei vindicatio.  On the basis of ownership of the property, and nothing else, he sought to evict the occupant enjoying occupation without his authority.  However, the applicant’s claim to ownership, and therefore the right of action, was predicated upon an agreement the validity of which had long been settled by judgment of the High Court.

` What the applicant did was to bid his time until the lapse of time before approaching the court seeking to enforce a right which was declared null and void.  Surely he could not do that.  There is nothing in the Supreme Court judgment in the case of Nzara & Ors, Supra which comes anywhere near suggesting that its ratio decidendi supports the applicant’s proposed approach to the court.  I conclude that the proposed appeal is not arguable at all.

Regarding the issue of costs, in his opposing affidavit the respondent urged of me the award of costs on the adverse scale de bonis propriis. No case was made for such a drastic measure.  Happily Mr. Masango, who appeared for the respondent, did not motivate that prayer.  In my view that was a wise move.

In the result, it is ordered as follows: -

1)The application be and is hereby dismissed

2)The applicant shall bear the costs.

M.T Chiwaridzo Attorneys at Law, for Applicant’s Legal Practitioners

Maronda Malinga Legal Practice, the Respondent’s Legal Practitioners