Michael Mtambo and Others v ZESA Pension Fund and Another

The applicants were granted an opportunity to purchase properties as sitting tenants from the first respondent (ZESA Pension Fund). When called upon to pay, they failed to do so within the period provided. The period was extended, but they still failed to pay. The applicants' appeal had been struck off or lapsed, and they applied for reinstatement of their appeal. The applicants argued they had made an undertaking to the Registrar of the High Court to pay for the preparation of the record when noting their appeal, but this was denied by the respondent.

• Whether the applicants complied with Rule 34(1) of the Supreme Court Rules regarding payment of costs for preparation of the record or provision of an undertaking
• Whether the applicants had prospects of success on appeal to warrant reinstatement

The application for reinstatement of the appeal was dismissed with costs.

An appellant seeking to note an appeal must either deposit the estimated cost of preparation of the record with the Registrar or provide a written undertaking acceptable to the Registrar for immediate payment of such costs after determination. Failure to prove compliance with this requirement renders the notice of appeal defective. The burden rests on the appellant to produce evidence of such compliance when challenged. The Court has no discretion to alter the mandatory requirement that payment be made immediately after costs are determined. Reinstatement of an appeal requires both compliance with procedural rules and demonstration of prospects of success on appeal.

The Court noted that it cannot alter the requirements of the Rules in the manner requested by the applicants (extending payment to 14 days after notification). The Court also observed that parties cannot hold another party to an agreement that has fallen away as a result of their own failure to perform their obligations under that agreement.

This case clarifies the strict compliance required with Rule 34(1) of the Supreme Court Rules regarding the deposit of estimated costs for preparation of the record or provision of a written undertaking at the time of noting an appeal. It emphasizes that the burden is on the appellant to prove compliance with procedural requirements, and that the Court cannot alter mandatory rule requirements. It also demonstrates that reinstatement of appeals requires both procedural compliance and prospects of success on the merits.