No S.C. 7\03
Application No 339\2002
READY WHOLESALERS (PRIVATE) LIMITED t/a POWER SALES
v (1) INNOCENT KATSANDE (2) ALFRED
(3) WIRIMAYI JAKOPO (4) STEPHEN SAMHEMBERE (5) SAILAS
BALOYI (6) ITAI MURADZIKWA
COURT OF ZIMBABWE
MARCH 4, 2003
for the appellant
for the respondents
CHIDYAUSIKU CJ, in Chambers, in terms of the Supreme Court Rules.
applicant in this case summarily dismissed the respondents from
employment in terms of Statutory Instrument 368A of 1998. The
respondents successfully challenged their dismissal as unlawful in
the High Court. MUNGWIRA J concluded that the respondents
dismissal from employment was null and void. The applicant appealed
to this Court against that judgment. The notice of appeal
fatally defective in that it did not comply with Rule 29(1)(c)(e) of
the Supreme Court Rules. Attempts were made to remedy
the defect by
a Notice of Motion or Petition that was to be moved at the hearing of
the matter. It was indicated in the notice
of motion that an
application would be made at the hearing for an extension of the time
within which to note an appeal and proposed
new grounds of appeal
that complied with the rules.
the hearing of the appeal no application for condonation was made.
Accordingly, no extension of the time within which to note
could be considered. The appeal was, therefore, struck off the
roll on the basis that the notice of appeal before the
court was a
nullity. Detailed reasons for judgment are contained in judgment
applicant now applies for an extension of time within which to note
case reveals a lackadaisical approach that borders on an abuse of
court process. To start with the applicant filed a notice
that did not comply with the rules to the extent that it was a
nullity. When the defect was pointed out to it the applicant
with this Court a notice of intention to apply for condonation at the
hearing of this matter. The notice of motion, for reasons
disclosed to this Court, was never served on the respondents. At
the hearing of the appeal the application for condonation,
inexplicable reason was never moved, and, consequently the appeal was
struck off because it was not properly before the
court, there being
no proper notice of appeal.
the applicant has filed a Chamber application for an extension of
time within which to note an appeal. In the Chamber application
attempt is made to explain the inordinate delay between the day the
respondents heads of argument were served on 22 November
pointing out that the notice was invalid, and, 4 February 2002 when
the applicant filed the application for condonation.
days or so had elapsed since the defect in the notice of appeal was
brought to the attention of the applicant before
the applicant did
anything about the matter. The applicant has not explained why the
application for condonation which it seeks
to reinstate was never
served on the respondents until some eighty-one days from the date it
was filed. Instead the applicant contends
it was never opposed.
If the application had been served that argument would make sense.
The last judgment in the matter was
handed down on 6 June 2002 and
nothing happened until this application was launched some 119 days
later on 4 October 2002.
As Mr Ndiweni
correctly submitted, the failure to explain, particularly when it is
shown to be sustained and customary with a particular litigant,
to apply for reinstatement timeously the applicant neglects to apply
for condonation for the late application, or is
perhaps oblivious of
the need to do so. It is trite that what calls for some
explanation, is not only the delay in noting an appeal
and in lodging
the reward timeously, but also the delay in seeking condonation.
and Anor NNO v Minister of Community Development
1965 (2) SA 135 (A) at 135H. Commenting on this case, this Court,
Woodwork (Pvt) Ltd v Blue Balls Enterprises (Pvt) Ltd
1998 (2) ZLR 251 had this to say:-
are, therefore, two hurdles to overcome.
applicants attention was drawn to the fatal irregularity in its
notice and it should have applied for condonation without
That is trite.
appellant realises that he has not complied with a rule of court he
should, without delay, apply for condonation. This
is a case where
there has been breaches of the rules without any explanation being
tendered to explain away the breaches. And in
such a case,
especially where there is no acceptable explanation therefore, the
indulgence of condonation may be refused whatever
the merits of the
appeal are; this applies of even where the blame lies solely with
the attorney, see e.g. P.E.
Bosman Transport Works Committee and Ors v Piet Bosman Transport
(Pty) Ltd 1980
(4) SA 794 (A) at 799D-H. Hence even if the case had any merits it
should fail on the first hurdle of failing to act timeously
condonation etc, see Viking,
on this basis alone, and without considering the merits the
application should fail.
application is, therefore, dismissed with costs.
Konson & Wolhuter,
applicants legal practitioners
respondents legal practitioners