MUHAKA v VAN DER LINDEN 1988 (2) ZLR 338 (SC)

Flynote

Appeal — record — deposit with Registrar of estimated cost of record — D undertaking for payment of cost in lieu of deposit — must be made within same time limits as deposit.

Costs — against legal practitioner — appropriate where practitioner guilty of basic errors in procedure prejudicing other party.

Court — officer of — Registrar of High Court — to what extent can bind the Court by condoning non-compliance with Rules.

Headnote

In terms of Rule 34(1) of the Rules of the Supreme Court 1964 (as amended by SI 796/1979), an appellant in a civil appeal from the High Court is required, either at the time of noting the appeal or within seven days from that time, to deposit with the Registrar the estimated cost of the preparation of the record. In lieu of the deposit, the Registrar may accept a written undertaking for the payment of the cost immediately after it has been determined. Such an undertaking can only be accepted within the same time limitations as the deposit. A failure to provide either the deposit or the undertaking will result in the appeal lapsing.

The power to condone non-compliance with the Rules belongs to the Court, not to the Registrar; the Court is not bound by the Registrar's acceptance of documents from a party whose appeal ought to have been held to have lapsed.

Where, through basic errors in procedure on the part of one party's legal

practitioner, the other party is prejudiced, it is appropriate that at least some of the costs be borne by the legal practitioners concerned.