Willow Creek Farm (Pvt) Ltd t/a Willow Transport v Deven Engineering (HH 37 of 2004) [2004] ZWHHC 37 (24 February 2004)

HH HC 289/03 WILLOW CREEK FARM (PRIVATE) LIMITED t/a WILLOW TRANSPORT versus DEVEN ENGINEERING HIGH COURT OF ZIMBABWE MAKARAU J HARARE 20 January and 25 February 2004 Mr. R Fitches for the applicant Ms S Njerere for the respondent. MAKARAU J: At the hearing of this matter I refused an application for condonation for late filing of heads of argument and dismissed the main application with costs. These are my reasons: On 10 January 2003, the applicant filed a court application in which it sought an order compelling the respondent to deliver to it forthwith five trailers and a galvanized van body, against payment of the sum of $34 900­00. The application was timeously opposed. The facts giving rise to this application are as follows: The applicant placed an order for five trailers and one galvanized van body with the respondent on 6 November 2002. It placed an order for these items on the basis of a quotation given it by the respondent and valid for five working days. Delivery of the ordered items was to take place within a period of three to four weeks. The total payable in terms of the quotation on the date of the order was the sum of $74 900 000­00. The applicant paid a deposit in the sum of $40 000 000, 00, leaving a balance in the sum of $34 000 000­00, the amount that the applicant now tenders against delivery of the order. The respondent refused to effect delivery of the ordered goods on the basis that the costs HH HC 289/03 of the goods had escalated and that the respondent was advised of the new costs. No answering affidavit was filed in response to the applicant’s allegations that the applicant was advised of the new costs and that the contract between the parties stipulated, on the reverse side of the quotation that the prices quoted the customer were subject to adjustment in accordance with any rise or fall which may occur before the completion of the an order. The court application was filed on 10 January 2003. The notice of opposition and opposing affidavits were filed on 29 January 2003. No answering affidavit was filed. On 11 July 2003, the respondent applied to have the matter set down and duly filed and served its heads upon the applicant. The matter was set down for hearing before me on 20 January 2004. On 16 January 2004, the applicant filed an application for condonation for late filing of heads. Although the application was filed (improperly) in the form of a court application, I allowed counsel to move for the application at the hearing of the matter. In the application for condonation, the applicant; legal practitioner deposed to the founding affidavit, alleging the file of the matter was being handled by a Mr Machingura who left employment with the applicant’s legal firm on a date undisclosed in the application. The reason why the heads were overlooked was unknown to the deponent who only took over the file of the matter in November 2003. The heads were duly settled in December 2003. It was explained that such lapses occur especially in large practices and the court ought to overlook the non­compliance with the rules in this regard. The approach of the courts to applications for condonation is well settled. A detailed analysis of that approach was done by Sandura JA in Kodzwa v Secretary for Health & Another 1999 (1) ZLR 313 (SC) where at pages 315­6, he had this to say: HH HC 289/03 “The factors which the court should consider in determining an application for condonation are clearly set out in Herbstein & van Winsen’s The Civil Practice of the Supreme Court of South Africa 4 ed by van Winsen, Cilliers and Loots at pp 897­898 as follows: “Condonation of the non­observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance … The court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation … include the degree of non­compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.” It is, therefore, well established that the court has a discretion to grant condonation when the principles of justice and fair play demand it, and when the reasons for non­compliance with the rules have been explained by the applicant/appellant to the satisfaction of the court. The principles applicable are the same, whether one is dealing with an application for condonation of the failure to file an application for review timeously or to note an appeal timeously. Whilst the presence of reasonable prospects of success on appeal is an important consideration which is F relevant to the granting of condonation, it is not necessarily decisive. Thus in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be. This was made clear by Muller JA in P E Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D­E, where the learned Judge of Appeal said: “In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.” The same point was made by Hoexter JA in Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131G­J where the learned Judge of Appeal said: “In applications of this sort, the prospects of success are in general an important, although not decisive, consideration. It has been pointed out (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & Ors 1985 (4) SA 773 (A) at 789C) that the court is bound to make an assessment of the petitioner’s prospects of success as one of the factors relevant to the exercise of the court’s discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. It seems to me that in the instant case the cumulative effect of the factors which I have summarised … above is by itself sufficient to render the application unworthy of consideration; and that this is a case in which the court should refuse the application irrespective of the prospects of success.” More recently, in our own jurisdiction, my brother McNally said the following in Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290C­E: “It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re­argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal HH HC 289/03 profession of the old adage, vigilantibus non dormientibus jura subveniunt — roughly translated, the law will help the vigilant but not the sluggard.” There is nothing original or useful for me to add to the above. Applying the above approach to the application before me makes me conclude that the application for condonation before me was another excuse by a legal practitioner for failing to act. Were this the only instance in which the legal practitioner had failed to act, I may have been inclined to be less harsh in my assessment of the applicant’s legal practitioners. No answering affidavit was filed in the matter and instead of pursuing their client’s case to finality by setting it down for hearing, the applicant’s legal practitioners were only jolted to action by the respondent setting the matter down. Both the client and his legal practitioners were not pursuing this matter with the vigilance that would earn the sympathy of the court. Further, there was no explanation as to why the file was not attended to earlier than November 2003 when it was allocated to Ms Muchembere. All the court was told was that the legal practitioner who was handling the matter was in the process of leaving when the respondent filed and served its heads upon the applicant. After that legal practitioner left, the court is in the dark as to why no action was taken on the file. An affidavit from one of the partners in the firm might have explained to the court how the lapse occurred. Condonation can not be had for the asking. Although not decisive on its own, I have also considered the merits of the applicant’s case as it stands. I have already referred to the fact that no answering affidavit was filed in this matter after the respondent had raised certain factual allegations against the applicant. The effect of that non­ filing is to leave me with the uncontroverted HH HC 289/03 evidence that the applicant knew of the terms of the contract as contained on the reverse side of the written quotation that was sent to it. If the terms of the contract were brought to the notice of the applicant, then the applicant’s case falls to pieces. Such is the case before me. It is on the basis of the foregoing that I withheld my discretion to grant the applicant condonation in this matter and dismissed the main application. Dube Manikai & Hwacha, applicant’s legal practitioners. Honey & Blankenberg, respondent’s legal practitioners.