Vigour Busilizwe Fuyana v Ntombaza Moyo

The applicant sought condonation for late noting of an appeal against judgment HB-44/2000 delivered by Kamocha J on 20 July 2000. That judgment dismissed the applicant's chamber application for directions which sought to discharge a provisional order that had already been referred to trial. The applicant's notice of appeal was filed on 21 August 2001 (the applicant claimed 15 August 2000, but this was not on record), well outside the 15-day dies induciae which expired on 10 August 2000. On 25 July 2005, a Supreme Court bench struck the appeal off the roll because it was noted out of time and no condonation application had been made. On 17 May 2006, ten months after the matter was struck off, the applicant filed the present application for condonation. The underlying dispute concerned Stand No. 11747 Nkulumane, Bulawayo, where the respondent had obtained a provisional order barring the applicant from taking transfer and granting her occupation rights. The matter had been referred to trial by court order, which the applicant was attempting to circumvent through an application for directions.

• Whether the applicant established good cause for condonation of the late noting of the appeal
• Whether the applicant provided a reasonable explanation for the failure to file the notice of appeal within the prescribed period
• Whether the applicant demonstrated prospects of success on the merits of the intended appeal
• Whether the application was made bona fide
• Whether an application for directions seeking substantive relief (eviction) rather than procedural directions was properly constituted
• Whether the Court should exercise its inherent jurisdiction to prevent abuse of court process

The application for condonation was dismissed. No order as to costs as none was asked for. The Court issued a directive that: "The applicant is barred from commencing any litigation concerning the disputed sale of Stand No. 11747 Nkulumane, Bulawayo, without first obtaining the leave of a Judge of the High Court or this Court."

For condonation of late noting of an appeal to be granted, an applicant must establish good cause consisting of three essential elements: (1) a reasonable explanation for the failure to file the notice of appeal within the prescribed period; (2) some prospect of success on the merits of the intended appeal; and (3) bona fides of the application. The failure to satisfy any one of these elements is fatal to the application. Courts have inherent jurisdiction to regulate their own processes and may exercise this jurisdiction to protect court process from abuse, including by imposing restrictions on litigants who persistently abuse court process. An application for directions under the court rules should seek procedural directions on how to proceed with litigation, not substantive relief that should properly be determined at trial or through substantive applications.

The Chief Justice made several obiter observations: (1) He warned the applicant of the risk of an order of perpetual silence and noted the applicant had very little regard for court process, having been imprisoned for contempt in related proceedings; (2) He observed that the applicant appeared to be acting at the instance of or with assistance of a "bush lawyer" with limited knowledge of law and court procedures, though held the applicant accountable regardless; (3) He noted it was not open to litigants to file affidavits after judgment had been reserved without leave of the Judge, and completely disregarded such a document filed by the applicant; (4) He observed that supporting affidavits should contain essential averments in support of the relief claimed, and criticized the filing of irrelevant voluminous documents; (5) He commented that where a default judgment has been granted, the proper recourse is to apply for rescission, not to attempt to circumvent it through other applications.

This case is significant in Zimbabwean civil procedure law for: (1) Clarifying the essential elements of "good cause" for condonation of late noting of appeals: (a) reasonable explanation for delay, (b) prospects of success on merits, and (c) bona fides; (2) Demonstrating the Court's intolerance of abuse of court process and its willingness to exercise inherent jurisdiction to protect its processes; (3) Establishing that courts can impose restrictions on vexatious litigants, including barring them from commencing litigation without prior leave; (4) Illustrating the proper scope and purpose of applications for directions under Order 23 Rule 152 - such applications should seek procedural directions, not substantive relief; (5) Confirming that voluminous, irrelevant submissions and documents will not assist litigants and may constitute abuse of process; (6) Warning litigants acting with assistance of "bush lawyers" that they remain accountable for procedural abuses.