MAHEYA v INDEPENDENT AFRICAN CHURCH 2007 (2) ZLR 319 (S)

Flynote

Appeal — lapsed appeal — reinstatement of — application for condonation — matters to be considered — failure by legal practitioners to comply with rules of court — failure amounting to wilful disdain for rules — need for finality in litigation

Headnote

The applicant had noted an appeal against a judgment of the High Court evicting her from the house she occupied. There had been no compliance with r 34 of the Supreme Court Rules regarding preparation of and payment for the record and the appeal was accordingly deemed to have lapsed. Although the error had been pointed out, her successive legal practitioners did little to pursue the appeal for over seven years. An application was made for re-instatement of the appeal.

Held, that in considering applications for condonation of non-compliance with the Rules, the court has a discretion, which it has to exercise judicially. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefor; the prospects of success on appeal; the importance of the case; the respondent's interests in the finality of the judgment; theconvenience to the court and the avoidance of unnecessary delays in the administration of justice. In casu, although the applicant blamed her erstwhile legal practitioners for non-compliance with the Rules, there had been no explanation from the legal practitioners concerned for failure to comply with r 34(1) at the time the notice of appeal was filed. They failed to appreciate at any time during the period of seven years that the appeal had lapsed and to institute appropriate proceedings to regularize it. The absence of an explanation of the non-compliance with the Rules showed a wilful disdain for the rules of court, the consequences of which the applicant could not escape. An equally important principle applicable in this case was that there should be finality in litigation. No suggestion had been made as to why the applicant would have any right to occupy the house.