Evans v Evans (HC 7888 of 2016; HH 208 of 2017) [2017] ZWHHC 208 (31 March 2017)

1 HH 208-17 HC 7888/16 CRIAG NEIL EVANS versus HEATHER JANE EVANS HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 21 February 2017 and 23 March 2017 Opposed Matter T Zhuwarara, for the applicant F Girach, for the respondent MWAYERA J: On 14 July, 2016 I dismissed an interlocutory application wherein the applicant in the main divorce matrimonial matter HC 10414/14 sought to resile from an admission made at pre-trial conference. The applicant sought unsuccessfully to persuade the court to find that the admission was improperly made. The admission was to the effect that, as regards the matrimonial home which was on the respondent’s mother’s estate the applicant, would claim compensation for improvements from the deceased estate. In my judgment in dismissing the application, I made it clear that an application for withdrawal of an admission will not be granted by the court by the mere asking. It was clear the applicant who was legally represented properly made an informed admission. The admission was premised on the fact that the applicant claimed ownership of material used to build the home on his mother in law’s property. Interestingly this is a fact admitted by the applicant in his founding affidavit for the present application for leave to appeal. Paragraph 18 reads: “At law I retain ownership of the material I used to build the matrimonial home that was on my mother in law’s property. Such property could therefore be properly adjudicated upon without recourse or reference to my mother in law or her estate.” One wonders, then why one would seek to resile from an admission which seeks to allow ventilation of a divorce matter leaving room for a claim for compensation for improvements made to a third party’s property. In this case the estate of the mother in law on which the HH 208-17 HC 7888/16 applicant states he used building materials to effect improvements. The law in relation to immovable property visa viz a bona fide possessor appears fairly settled. The learned authors Silberg and Schoeman in The Law of Property 2nd ed at p 153 states the following in relation to a bona fide possessor: “As a general rule the claim has to be instituted against the person who is the owner of the property at the time of institution of proceedings. However, the previous owner, and not present owner has been enriched, action has to be instituted against the former owner although the possessor’s lien will be effective also against a new owner. ……. In respect of useful improvements, either an amount equal to the value of which the property has been advanced or the actual expenditure incurred whichever is the cession may be received.” It is apparent that a bona fide possessor has a right to claim for any improvements from the owner of the property. In this case any claim rightfully lies with the estate of the respondent’s mother on whose property the matrimonial home is situated. The concept of law in relation to immovable property was ably clarified in Bangure v Gweru City Council 1998 (2) ZLR 396 at 398 C-F wherein the court summarised inaedlificatio as follows: “If there is any basis for the application, therefore it must be found in the common law. It may be said generally that improvements to property adhere to the property and are acquired by the owner of the property through the process of a cession. Inaedificatio is the type of non-natural accession by which movables accede to immovable when sufficiently attached and become the property of the platatio or staio are the means of non-natural accession by which, subject to any agreement to the contrary between the planter and land owner, growing thing accede to the soil and become the land owner’s property . ………… possessors or occupiers of property who improve the property retain certain rights in respect of the improvements. Thus the improver or planter enjoys the ius tollendi. The right, during the currency of occupation of the property to remove the improvements if this can be done without damage to the earlier state of the property itself. A further right enjoyed by the possessor or occupier who improves property is an entitlement to compensation for the improvements, and even a ius retetnionis to enforce that claim is permitted to various classes of possessor or occupier of property.” The circumstances of the admission made by the applicant which he sought to resile from took recognition of the settled principle. The applicant’s claim if any lies with the respondent’s mother’s estate and hence the dismissal of the application. It is with this background that the applicant approached this court with the present application for leave to appeal. The application was opposed which opposition was communicated on 30 September 2016. The applicant did not file heads of argument and only the respondent filed heads of argument on 1 November 2016 and also caused the matter to be set down. I set the matter down so as to be orally addressed by the parties before coming up with my HH 208-17 HC 7888/16 disposition. Order 34 r 265 is clear on considerations of the application and submission by the presiding judge. It reads: “Upon receipt of the application and the submissions by the Attorney General, (Respondent) if any, the registrar shall place the matter before the presiding judge, in chambers who shall grant or refuse the application as he thinks fit. The presiding judge may in his discretion require oral argument on any particular point or point raised and he may hear any such argument in chambers or in court.” (underlining my emphasis) The application for leave to appeal was brought before me in terms of r 263 ARW r 269 of the High Court Rules 1971. It is imperative for an over view of the relevant rules 262, 263 and 266 to be captioned. Subject to the provision of r 263, “in a criminal trial in which leave to appeal is necessary, an application for leave to appeal shall be made orally immediately after the sentence has been passed. The applicant’s grounds for the application shall be stated and recorded as part of the record. The judge who presided at the trial shall grant or refuse the application as he thinks fit.” “Rule 263 Where an application has not been made in terms of r 262, an application in writing may in special circumstances be filed with the registrar within the 12 days of the date of sentence. The application shall state the reason why the application was not made in terms of s 262, the proposed grounds of appeal upon which it is contented that leave should be granted.” Rule 266 where an application has not been made within the said period of 12 days, an application for condonation may be filed with the registrar and served forthwith on the Prosecutor-General together with an application for leave to appeal. The prosecutor general may, within 3 days of the date of the said service, file with the registrar submissions on both applications. The provisions of r 265 shall apply to both such applications and submissions if any; It is common cause that the effect of r 269 is that r 262 and 263 shall apply with equal force to civil matters. In casu the judgment dismissing the interlocutory application by the applicant for withdrawal of an admission was issued on 14 July 2016, effectively dismissing the application on the background already discussed above. The application for leave to appeal was only filed on 3 August 2016, that is some 16 or so days after the judgment was handed down. This was certainly not in line with the time limits as provided by the rules. The applicant in a clear move HH 208-17 HC 7888/16 that flouted the rules on the time period did not seek to rectify the failure to comply by seeking for condonation for the late noting of the application for leave to appeal. As if that was not enough, the applicant, did not deem it necessary to expand on special circumstances to motivate the application for leave to appeal. A reading of the founding affidavit scantly alludes to special circumstances without any substantiation. The argument by the applicant was that the applicant could not timeously file the application because he needed time to consider the judgment and the effect that it had on his ‘cause’ and that his counsel needed time to consider the judgment and fashion putative grounds of appeal. I must hasten to say the time limits provided by the rules are for a purpose and are there to be complied with. In the event of failure to comply then substantiated explanation showing why there was none compliance ought to be placed before the court. The party failing to comply ought to regularise their appearance by seeking condonation which entails giving an explanation for the delay and justification in condonation sought. Special circumstances generally denote circumstances outside the ordinary which occasioned the delay. To state that one needed time to consider the judgment and its effect on one’s cause and that counsel needed time to consider judgment is far short of special circumstances. More so, when one considers that the same counsel was the one who motivated the application for resiling from an admission, which application was dismissed and which same application forms the basis of the current application for leave to appeal. The same legal practitioner does not agree, he has to seek condonation and has to substantiate or explain reasons for the delay arguing that what he has before the court is a petition not an application. This argument flew to the face of the applicant because clearly an application for leave to appeal to the Supreme Court is in terms of order 34 r 263 of High Court rules as read with r 269. A reading of the relevant rules does not depict a scenario where time limits are not to be complied with because the application at hand is brought in chambers to the attention of the presiding judge. Where time limit has not been met then naturally condonation has to be sought. The application is not only improperly before the court for having been filed out of time but also improperly before the court for want of application for condonation. This is further compounded by lack of explanation as regards the delay. No special circumstances were substantiated. One was just left to speculate that the applicant was taking a gamble and that it had no explanation or that it was abundantly clear that there are no prospects of success given the disposition and reasons for dismissal of the application to resile from a well informed and properly made admission. I am alive to the fact HH 208-17 HC 7888/16 that in an application for leave to appeal what is at stake is not whether or not an appeal is arguable but whether the applicant has a reasonable prospect of success on appeal. See R v Baloi 1949 (1) SA 523 AD and S v Mutasa 1988 (2) ZLR (4) SC at p 8 and Attorney General v Tomas and Others HB 59/11 at p 2 where the court set out the test to be applied in application for leave to appeal as follows: “it is trite that the approach to adopt when considering an application for leave to appeal should not be based on whether an appeal is arguable or not but on its prospect of success. In other words the test to be applied when considering an application for leave to appeal is whether the applicant has a reasonable prospect of success on appeal.” In the present case, given the background to the application for leave to appeal against dismissal of an application for withdrawal of an admission the application has no prospects of success. This second wrung is stretching the matter even further unnecessarily because clearly the applicant cannot skip the hurdle of having filed the application out of time. The judgment was handed down on 14 July and he only filed the application on 3 August 2016. Even if it was to be accepted the registrar did not immediately forward the application to the judge, the application was already out of time at the time of filing. When the record was placed before the judge on 30 September 2016 it was made clear the application was opposed. The applicant fully aware of the time limit and being out of time did not seek condonation. The application was not filed within the stipulated 12 days of date of judgement and that renders the application a nullity for it is out of time. See Chidyausiku v Nyakobaro 1987 (2) ZLR 119, Passmore Matanhire v BP Shell, Makely (Pvt) Ltd SC 113 – 04 and Jensen v Acavlos 1993 (1) ZLR, 216. The applicant was out of time but none the less proceed to file the application. This was despite the clear wording of r 264 of High Court rules, that in the event of failure to make the application for leave to appeal within the periods stated in the rules then an application for condonation ought to be filed. The applicant in this case did not bother to apply for such condonation even during oral submissions. The applicant did not give good reason as to why this was not done but simply argued if anyone was barred it was the respondent. The position is clear that when a party has not complied with the rules of the court the party should seek for condonation giving an explanation for the non-compliance. In the case of At the Ready Wholesalers (Pvt) Ltd t/a Power Sales v Innocent Katsande and others SC 07/03 the court had this to say: HH 208-17 HC 7888/16 “Whenever an appellant realises that he has not complied with a rule of the court he should without delay, apply for condonation. This is a case where there has been a breach 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 even where the blame lies solely with the attorney, see e.g P. E Bosman Transport (Pvt) Ltd 1980 (4) SA 794 Hence even if the case had any merits it should fail on the first hurdle of failing to act timeously to seek condonation”. In casu there was not even an attempt to seek condonation neither was there any satisfactory explanation for the delay. To state that one was considering the judgment in an application which was at the applicant’s instigation and end there is not sufficient explanation for the delay. In fact there was no attempt to regularise the delay by applying for condonation. We have a scenario where the applicant in clear defiance of rules of the court does not seek to regularise the anomaly. The applicant in a bold, mischievous manner in the face of the obvious none compliance with rules imputes defiance and disdain of the rules on the respondent, stating that the opposition was filed out of the time. In actual fact it is the application which was filed out of time and thus amounts to a nullity. In an event even on merit the application cannot stand. Having stated that the application is improperly before the court for none compliance with the rules it follows the application is a nullity and thus there is nothing before the court. The applicant was aware that the application for leave to appeal was filed out of time. Despite all this knowledge the applicant sat back and insisted on pursuing the application without seeking condonation. Such conduct smacks of ingenuine prosecution of a matter. The applicant’s conduct calls for sanction by imposition of costs on a higher scale. In open defiance of rules to insist on prosecution of a nullity which even on merit is not supported, it is justified for the court to impose costs on a higher scale. The applicant pursued an application doomed to fail by none compliance with rules and even after rules were brought to the applicant counsel’s attention no attempt was made to seek condonation so as to regularise process in a clear fashion which boarders an abuse of court process. In the circumstances the application must fail. Accordingly it is ordered that The application be and is hereby dismissed. The applicant shall bear the costs on attorney-client scale. 1. 2. Kantor & Immerman, applicant’s legal practitioners Atherstone & Cook respondent’s legal practitioners