Brian Kashangura v Gilliet Sarudzai Motsi

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1
HH 150-22
HC 7309/20
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BRIAN KASHANGURA

versus

GILLIET SARUDZAI MOTSI

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 9 November 2021 and 24 February

and 16 March 2022

Opposed application

K T Tsaira, for applicant

TK Hove, for respondent

TAGU J:   The factual position is that this Court dismissed a court application and a counter claim in HC 1456/20 whose judgment in HH 743/20 was delivered in motion court on the 25th November 2020. On the day the judgment was delivered counsel for the applicant was not present in court despite that he was advised to attend court at 1000hrs earlier on the same day at 9.30am. The reason for his failure to attend court hearing being that he was engaged elsewhere. Dissatisfied with this court’s decisions the applicant is desirous to appeal against this court’s decision to the Supreme Court.

The applicant therefore filed a chamber application for leave to appeal against the whole judgment of this Court. He made a chamber application for leave to appeal in terms of Rule 263 0f the High Court Rules, 1971.

The application is opposed by the respondent.

At the hearing of the application the Respondent raised a point in limine to the effect that there is no need to proceed in terms of r 263. Mr TK.Hove’s argument was that r 263 talks of criminal appeals. He submitted that the procedure adopted by the Applicant was floured because this was not a criminal trial but a civil trial.

Mr K T Tsaira conceded that indeed this was not a criminal and r 263 deals with criminal matters. However, be that as it may the Applicant adopted the procedure provided for in r 269 of the High Court Rules, 1971.  He maintained that the application is properly before the court.

Rule 263 provides as follows-

“263.  Criminal trials: and application after sentence passed.

Subject to the provisions of r263, in a criminal trial in which leave to appeal is necessary, application for leave to appeal shall be made orally immediately after 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 in no doubt refers to criminal trials. The counsel for the Respondent was correct to make the observations he raised. Counsel for the Respondent concede to that fact.

However, r 269 provides as follows-

“269. Application for leave to appeal in proceedings described in section 26 (1) (c) (ii) and (d) of Act 22 of 1994

In a case in which leave to appeal is necessary in respect of a judgment of the court given in such proceedings as are described in subparagraph (ii) of paragraph (c) and in paragraph (d) of subsection (2) of section 43of the High Court Act [Chapter 7.06], the provisions of rule 262 to 268 shall apply to an application for leave to appeal and to an application for condonation as if for the words “Attorney-General” there were substituted the word “respondent”.”

Having heard the submissions by the counsels and considered the provisions of r 269, I was of the view that the application was properly before the Court. I therefore dismissed the point in limine and heard the submission on the merit.

In respect of the merit both counsels did not make any oral submissions save to say they abided by the papers filed of record. The court having considered the papers filed of record is of the view that maybe a different court may come up with a different view than what is contained in the court’s judgement file of record.

For these reasons the application succeeds.

IT IS ORDERED THAT:

The applicant be and is hereby granted leave to appeal to the Supreme Court.

There be no order as to costs.

Mundia & Mudhara, applicant’s legal practitioners

T K Hove & Associates, respondent’s legal practitioners