METRO INTERNATIONAL (PVT) LTD v OLD MUTUAL PROPERTY INVESTMENT CORP (PVT) LTD 2008 (2) ZLR 257 (S)

Flynote

Appeal — extension of time within which to note appeal — application — delay due to legal practitioner not making enquiries about when pending judgment was to be handed down — not an acceptable explanation for non-compliance with rules

Legal practitioner — conduct and ethics — duties — duty to ascertain whether pending judgment has been handed down or when it is to be handed down

Headnote

On 18 June 2008 an order for the ejectment of the applicant from the premises it occupied was made by the High Court. Judgment in the matter had been e reserved on 31 January. The applicant claimed that it had no knowledge that judgment had been given on 18 June 2008 until the Deputy Sheriff served a copy of it at its head office on 4 F October 2008 in execution of the writ of ejectment. On 7 October it applied for extension of time within which to note an appeal. The applicant's legal practitioner admitted that he did not at any time during the period between 31 January 2008 and 4 October 2008 contact the judge's clerk or the Registrar's office to inquire as to when judgment would be handed down. The only inquiry made was by a legal assistant on 26 August 2008 when she asked the judge's clerk whether the judgment was still pending. She said she was told that the judgment had not yet been given. It was her view that she did not find it necessary to confirm the inquiries by a letter because the status quo ante was in favour of the applicant. As events turned out the statement that judgment had not yet been given was not true and the belief that the status quo ante continued to favour the applicant was misplaced.

Held, that in considering an application for condonation of non-compliance with its Rules or for an extension of time within which to note an appeal,the court has a discretion, which it has to exercise judicially in the sense that it has to consider all the facts and apply established principlesbearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the respondent's interests in the finality of the judgment; the convenience to the court and the avoidance of unnecessary delays in the administration of justice.

Held, further, that the applicant's legal practitioners were under a duty, having taken instructions to represent it in the application at the High Court, to make regular inquiries at the Registry, confirmed by letters, as to whether the judgment had been given and, if not when, it was to be handed down. A vigilant litigant interested in the speedy outcome of the application would have satisfied himself that the legal practitioners made regular inquiries for the judgment. Lack of knowledge of a judgment due to failure to make necessary inquiries in circumstances where one is under a duty to do so cannot be an acceptable explanation for non-compliance with Rules of the court. The applicant could not remain inactive until notification of the judgment was given by the Registrar.

Held, further, that in any event, there were no prospects of success on appeal: inter alia, the applicant was not entitled to the protection of a statutory tenant as it had not complied with the terms of the lease.