Xtenda Financial Holdings Private Limited & 3 ORS V EVER Prosperous World WIDE Limited & ANOR

### Preamble
Judgment No. SC 76/25
1
Chamber Application No. SC 200/25
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REPORTABLE	(76)

XTENDA     FINANCIAL     HOLDINGS     PRIVATE     LIMITED     (2)     FRANCIS     DZANYA     (3)     BEKITHEMBA     MOYO     (4)     BINDIZILE     MUNATSI

v

EVER     PROSPEROUS     WORLD     WIDE     LIMITED     (2)     REGIS     CHAWATAMA

SUPREME COURT OF ZIMBABWE

HARARE: 14 APRIL 2025 & 1 SEPTEMBER 2025

F. Mahere, for the applicants

L. Madhuku, for the respondents

IN CHAMBERS

UCHENA JA:

[1]    This is an opposed chamber application for the reinstatement of an appeal deemed abandoned and dismissed.  The application was made in terms of r 70 (2) of the Supreme Court Rules, 2018.

FACTUAL BACKGROUND

[2]	The first applicant is a company registered in terms of the laws of Zimbabwe.  The first respondent is also a company registered in terms of the laws of Zimbabwe.  The second to the fourth applicants are sureties in the agreement which gave rise to the dispute between the first applicant and the first respondent.  The second respondent is an arbitrator cited in his official capacity.  The first respondent applied to the High Court (court a quo) seeking an order for the setting aside of an arbitral award made by the second respondent.  It also sought an order directing the second respondent to determine all the issues which were placed before him.  It further argued that the award was contrary to public policy and that the arbitrator violated the audi alteram partem rule.

[3]	The applicants opposed the first respondent’s application.  They raised a preliminary objection to the effect that the court a quo lacked the requisite jurisdiction and that the matter ought not to proceed to the merits because of its prolixity.

[4]	The court a quo found that the second respondent failed to determine the issues which were placed before him.  It found that the preliminary issue raised by the applicant had no merit.  Regarding the issue of the application's clarity, it found that the application was overly lengthy.  On the merits, it held that Article 34 of the Arbitration Act [Chapter 7:15] permits the setting aside of an arbitral award on several grounds.  It held that for an award to be set aside on the basis that it is contrary to public policy, it must shock the conscience or be injurious to the public good.  It found that the award was contrary to public policy because the arbitrator was cheated into terminating the arbitral proceedings before him based on an allegation that the issues between the parties had been determined in a previous award which was no longer extant at the time that submission was made.  It stated that when the parties approached the second respondent, they were aware of the existence of another award by Mr Bere.  It ruled that the second respondent erred when he relied on res judicata, to terminate the arbitral proceedings before him.

[5]	The court a quo further held that the parties before the second respondent and the cause of action were different from those that were before Mr Bere.  It found that the second respondent erred and left the first respondent with no recourse against anyone when he terminated the proceedings before him based on the existence of an award by Mr Bere, which was no longer extant.  It, therefore, ruled that the termination of the proceedings before the second respondent was contrary to public policy.  Aggrieved by the decision of the court            a quo, the applicants lodged an appeal before this Court under case No SC 39/25.

[6]    The applicants submitted that on 10 March 2025, the Registrar of this Court informed them that their appeal had been deemed dismissed for the reason that the applicant had failed to pay costs for the preparation of the record within ten days of their being notified to do so by the Registrar of the High Court.  The applicants wish to pursue their appeal under case No SC 39/25, hence the present application.

RELIEF SOUGHT

[7]	The applicants seek the following relief:

“Wherefore after reading documents filed of record and hearing counsel, it is ordered as follows:

1.	The application be and is hereby granted.

2.	The applicants be and are hereby condoned for failing to comply with r 17 (11) of the Supreme Court Rules 2018, by failing to pay the costs determined by the Registrar of the High Court for the preparation of the record.

3.	The appeal in SC39/25 be and is hereby reinstated.

4.	The applicants be and are hereby granted an extension of time within which to pay the Registrar of the High Court costs for the preparation of the record and are hereby ordered to pay such costs within five days of this order.

5.	The applicants are hereby granted an extension of time within which to pay the respondents' costs on appeal as determined by the Supreme Court Registrar on the 13th of February 2025, within five days of this order.

6.	Each party to bear its own costs.” (Emphasis added)

SUBMISSIONS BEFORE ME

[8]	Mr Madhuku, Counsel for the first respondent, raised a point in limine to the effect that the appellants ought to have applied for condonation for none-compliance with the rules together with an application for reinstatement.  In response, Ms Mahere counsel for the applicants, submitted that counsel for the first respondent cannot raise a preliminary point without giving notice that he was going to do so.  She submitted that the respondent has an obligation not to ambush the other party.  Thus, counsel objected to the raising of the preliminary issue without submitting on whether a party which has failed to comply with the rules can seek other relief from the court without seeking the court’s  condonation for none compliance with the rules.

[9]	Mr Madhuku averred that a point of law can be raised at any time.  He submitted that the point of law he raised goes to the root of the applicants’ application.  He stated that there is no application before the court because the applicants failed to apply for condonation for their failure to comply with r 46 (1).  Ms Mahere submitted that r 70 (2) of the rules was complied with.  She stated that for the application to succeed, the applicants ought to satisfy the court that they have a reasonable explanation for the delay and that the application has prospects of success.  She further stated that the reason for the delay is that the email requiring the payment of costs was sent to the applicants’ erstwhile legal practitioners' spam.

[10]   On the merits, Ms Mahere submitted that the court a quo erred in arriving at its decision.  She averred that Mr Chawatama the second respondent, had no jurisdiction to determine the matter.  She stated that the setting aside of the Bere award did not confer jurisdiction on the second respondent.  She stated that the dispute was between the same parties and the same cause of action hence the matter before Chawatama was res judicata.

[11]	Per contra, counsel for the respondent stated that, the founding affidavit does not show that the application is premised on r 70.  He submitted that in terms of the law, a party has to firstly be condoned in terms of r 43 and then proceed to seek reinstatement.  He stated that the applicants’ failure to seek condonation is fatal.  He averred that the explanation for the delay tendered is grossly unreasonable.  He further submitted that the applicants have no prospects of succeeding on appeal.  He submitted that for a matter to be considered res judicata, it must be between the same parties and involve the same cause of action.  He averred that before the Chawatama arbitral proceedings, there were two claimants and three respondents, yet in the Bere proceedings, there were only two parties.  He thus stated that these are two different matters.  He further submitted that the application was premised on the fact that the applicants failed to pay costs for the preparation of the record, as opposed to failure to pay security for the respondent’s costs.

ISSUES FOR DETERMINATION

[12]	Two issues arise for determination:

1.  Whether there is a valid application before me.

2.  Whether or not the applicants have satisfied the requirements for an application for reinstatement.

APPLICATION OF THE LAW TO THE FACTS

Whether there is a valid application before me.

[13]   This issue arises from the applicant’s failure to apply for condonation for its failure to comply with r 46 (1) of this Court’s rules.  In this case the applicants’ appeal was deemed to have been dismissed because they had not complied with r 46 (1).

[14]   It is apparent from the record that the applicants did not apply for condonation for their failure to comply with r 46 (1).  When the issue was raised, I did not hear Ms Mahere for the applicants say that the applicants’ application sought condonation for non-compliance with the rule.  All she sought to do was complain that the respondents’ counsel should have given the applicants notice that they were going to raise that preliminary issue. Once the deficiency of the application is apparent from the record it does not matter whether or not the respondent raises a preliminary issue. The judge on his or her realizing that the application is a nullity is entitled to strike it off the roll.

[15]   To her credit Ms Mahere did not argue that an application for condonation was not necessary as it is trite that when a party fails to comply with the court’s rules it must first seek the court’s condonation before seeking other remedies from the court.  In this case the relief sought in para 2 seeks the granting of condonation even though it had not been applied for in the applicants’ application.  This suggests that the applicants know that they should have sought condonation but failed to do so.  However, one cannot seek relief for which they have not applied.

[16]   The law on the need to apply for condonation whenever a party has failed to comply with the rules of the court was stated in the case of Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC 34/17 at paras 14 and 17 where this Court said:

“[14] In an application of this nature and indeed in any application which is necessitated by a breach of the Rules, it is imperative that condonation of failure to comply with the rule in question be applied for because in each case the applicant is seeking an indulgence from the court.

[17]   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.”

[17]   In view of the clear position of the law that whenever a party infringes the rules of the court, he/she/it must apply for condonation the applicants’ application is a nullity and must be struck off the roll.  This conclusion renders it unnecessary to determine the other issue as courts do not make determinations on nullities.

[18]   It is accordingly ordered as follows:

“The matter be and is hereby struck off the roll with costs.”

Honey & Blackenberg, applicants’ legal practitioners.

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

Mawere Sibanda, 2nd respondent’s legal practitioners.