No. SC 51/06
Application No. 98/06
EZEKIEL DHITIMA (2) SHERIFF OF ZIMBABWE
(3) CITY OF HARARE (4) ZIMBABWE
COURT OF ZIMBABWE
OCTOBER 11, 2006
for the applicant
for the first respondent
appearance for the second, third and fourth respondents
JA, in Chambers in terms of r 34 of the Supreme Court Rules.
applicant was the registered owner of an immovable property known as
Stand Number 8393 of Budiriro Township, Harare.
no details of the background are given, what is common cause is that
the applicant had obtained a mortgage bond from Zimbabwe
Society (the fourth respondent). He defaulted in payments. The
fourth respondent repossessed the property and eventually
had it sold
applicant applied to the High Court to have the sale set aside and
was granted an order to stop the transfer of the property to
order was conditional in that it gave him sixty days within which to
pay the arrears. This order did not cancel the sale that
to the first respondent, the applicant still failed to comply with
that order to pay within sixty days.
first respondent obtained an order from the High Court on 30 July
2003 to have the property ceded to him.
applicants subsequent application to the High Court to set aside
the sale was dismissed. This is the order against which
he noted an
noting the appeal, the applicant failed to comply with the Rules of
the High Court as he did not pay, or make any undertaking
to pay, for
the preparation of the record.
Registrar of the High Court, by a letter dated 16 March 2006, advised
his legal practitioners that the appeal was deemed to
He has now applied for the reinstatement of the appeal.
In considering such an
application the Court has to take into account, amongst other
factors, the reasons for failure to comply with
the Rules and the
prospects of success if the application is granted.
applicants explanation is not satisfactory. He says he was at
his home in Gokwe where communication with his legal practitioners
difficult, and he only contacted them after a relative advised him
that the legal practitioners wanted to speak to him.
did not narrate in detail in his founding affidavit what happened,
but when his brief explanation was challenged he filed a replying
affidavit, in which he said he advised his legal practitioners even
before his application was dismissed that if he lost the case
applicant was in court on the day the application was dismissed. He
does not say what he did then, but excuses himself and
practitioners by saying they could not undertake to pay for the
record as he had not yet given them instructions, yet they
to file the appeal within the time limit.
legal practitioners would have known that once they noted an appeal
there was need for the record to be prepared. They have
any explanation for their failure to comply with this requirement.
The excuse that the applicant seeks to put forward
for his legal
practitioners is unacceptable. It cannot be said that the applicant
wanted them to appeal when he was not going to
pay for the record.
find the explanation to be unsatisfactory.
the other hand, even assuming that this could be the fault of his
legal practitioners, the applicant has not shown that there
prospects of success in the appeal if the application is granted.
his founding affidavit, the applicant clearly stated that he did not
wish to deal with the merits save to refer to the notice
a result, a lot of background information as to what transpired was
not given. It was only at the hearing of the application
legal practitioners disclosed that there had been several court cases
on the same matter, but reference to them could not
applicant who is reluctant to make his case clear on the founding
High Court found that what the applicant sought to do was to reverse
the transfer, but had no valid challenge to the sale as
there was no
applicant argued that when he tried to make payment for the arrears
the Building Society turned him away as they had been paid
purchaser of the house. The purchaser also refused to surrender the
house to him. They were entitled to do so as he was
only trying to
reverse a process which was by then complete.
therefore see no prospects of success on appeal even if this
application is granted.
this application is dismissed with costs.
applicants legal practitioners
respondent's legal practitioners