Fernicary Farm T/A Rutendo Farm v Des Monies Farm (Private) Limited

### Preamble
Judgment No SC 82/25
1
Chamber Application No SC 30/25
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REPORTABLE    (82)

(1)     FERNICARY      FARM     T/A    RUTENDO     FARM

v

DES     MONIES    FARM     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

HARARE: 1 APRIL 2025 & 15 SEPTEMBER 2025

G. Madzoka, for the applicant

T. Sibanda, with B. Majamanda, for the respondent

IN CHAMBERS

CHIWESHE JA:	This is an opposed hybrid application for condonation for failure to timeously serve the notice of appeal on the Registrar of the Commercial Court (the court a quo) as required in terms of r 37 as read  together with r 38 of the Supreme Court Rules, 2018 (the rules) and for extension of time within which  to so serve the notice of appeal on that registrar and for reinstatement of the appeal in terms of rr 43 and 70 of the rules and for extension of time within which to pay security of costs.

THE FACTS

The High Court (Commercial Division) (the court a quo) under HCH 123/22, granted the respondent`s claim for compensation in the sum of US$455 000.00 payable in local currency at the applicable interbank rate on the day of payment.  The court a quo ordered that the applicant pays the respondent`s costs of suit.

Aggrieved by that decision, the applicant noted an appeal to this Court on                    11 December 2024.  However, the applicant failed to serve the notice of appeal on the Registrar of the court a quo as required in terms of the rules.  The applicant avers that it only became aware of this omission when the parties were preparing to appear before the Registrar of this Court for a determination of the amount that should be paid for security for the respondent`s costs.  The meeting before the Registrar had been scheduled for 17 January 2025.  The applicant`s legal practitioners then proceeded to upload the notice of appeal on 14 January 2025, well out of time.  As a result, the appeal was, by operation of law, deemed abandoned and dismissed, hence the present application.

The dispute between the parties dates back to October 2019 when the parties entered into an agreement in terms of which the applicant leased Fernicary Farm (the farm) to the respondent.  The lease was to run until September 2027.  Following disagreement between the parties, the applicant approached the Magistrates Court at Mutare, seeking an order for the eviction of the respondent from the farm.

However, the parties were able to settle the dispute between themselves.  They filed a Deed of Settlement and an order by consent was granted on that basis.  In terms of the Deed of Settlement, the parties agreed to cancel the lease upon certain terms and conditions. Of importance to the present application was the provision that the applicant would compensate the respondent for the improvements made on the farm during its tenancy.  The respondent vacated the farm but was not paid compensation as provided for in the Deed of Settlement.  This was so because the parties had failed to audit the improvements.  The respondent resultantly approached the court a quo with a claim against the applicant for compensation for the improvements effected at the farm.  The improvements claimed by the respondent included the repair of external and internal roads, erection of fences to mark the farm boundaries, refurbishment of the main house, water reticulation and maintenance of irrigation infrastructure.

The Deed of Settlement required the respondent to provide evidence proving that:

Improvements were done with the approval of the applicant.

An inventory of the improvements was prepared and approved by the applicant.

A registered valuer was engaged to consider devaluation through wear and tear.

The parties had agreed on the payment plan for the improvements.

In assessing the quantum of improvements, the court a quo made a distinction between operating costs incurred by the respondent and actual improvements to the farm.  It dismissed all claims for operating costs and granted claims it considered to be improvements.  It rejected the applicant`s denial that it had not approved the improvements as the applicant was at all times briefed by an agent stationed at the farm of  all developments.  Further, it noted that the applicant regularly visited the farm and at no point did it raise any objections to the respondent`s activities.  In the result, the court a quo awarded the respondent compensation in the sum of US $455 000.00 payable in the local currency at the interbank rate.  It is common cause that in arriving at that figure, the court a quo was not assisted by an evaluator or other expert in the field of property evaluation.  The court a quo was alive to this handicap.  It however reasoned that in the absence of an evaluation report, it could determine the quantum of compensation on the basis of the evidence adduced before it.  It accordingly held that the quantum of the claims it allowed was reasonable, given the scope and nature of the improvements.   In doing so, it blamed the applicant for not adducing the evidence of an evaluator.

PRELIMINARY OBJECTIONS

The respondent submits that the notice of appeal is fatally defective in the manner in which the grounds of appeal and the relief sought have been drafted in that:

It does not specify the court or division of the court by which judgment was   given with clarity as required by r 37 (1) (a) of the Supreme Court Rules, 2018 (the rules).

I note that the notice of appeal refers to a judgment of the Commercial Court instead of the judgment of the High Court (Commercial Division).  It is trite that the Commercial Court is a stand-alone division of the High Court, designed to deal expeditiously with commercial matters.  In that regard, it is a specialized court.  Whilst it may be improper to cite the Commercial Court without reference to the parent court, the High Court, I do not believe that such oversight constitutes a fatal defect in the notice of appeal.  The preliminary point must be dismissed.

It insufficiently states the part of the judgment appealed against by failure to include US$150 000.00 for bush clearance which clearly forms ground 8 of the Grounds of Appeal, rendering the relief sought vague and not exact.

This preliminary objection is not clearly stated.  The exactness of the relief sought cannot be ascertained by reference to whether it captures each and every prayer sought.  If an appellant omits to pray for part of what it is expected to pray for, the relief sought does not become inexact.  Rather, the appellant may be prejudiced by failure to include part of its claim in the relief sought.  For that reason, this objection has no merit.  It must be dismissed.

The respondent’s second preliminary objection is to the effect that the application is based on a nullity as the applicant’s legal practitioner has pleaded ignorance of the law by stating that the delay in complying with the rules was as a result of the legal practitioner’s erroneous belief that the IECMS system had dispensed with the need to serve the Notice of Appeal on the Registrar of the court a quo.

In my view this issue cannot be raised as a preliminary objection.  It falls to be dealt with as an explanation given for the delay in complying with the infringed rule.  It is for this court to assess the reasonableness or otherwise of such explanation as required by law.  The question must be determined on the merits and not as a preliminary objection.  This objection must also be dismissed.

The respondent’s third objection is to the effect that there has been non-disclosure of material facts.

This objection has no merit as the facts alleged not to have been disclosed have no direct relevance to the present application for condonation.  The applicant is required, in the main to give a plausible explanation for the delay, inordinate or otherwise, and to show that there are prospects of success in the intended appeal.  He is not required to regurgitate the whole history of the parties’ dispute and apportion blame for every twist and turn.  The preliminary objection must be dismissed.  Having dismissed all the preliminary objections raised by the respondent, I now turn to consider the application on the merits.

THE LAW

It is trite that in considering applications of this nature, the court exercises its discretion guided by a number of factors including the length of the delay in complying with the infringed rule, the reasonableness of the explanation given for the delay and the prospects of success in the intended appeal.  These factors ought to be considered cumulatively and not in isolation of one another.

The extent of the delay and the explanation therefor

The applicant failed to timeously serve the notice of appeal on the registrar of the court a quo because it was under the mistaken belief that under the IECMS system, the registrar of the court a quo would be automatically served.  Although this kind of mistake is one often made by legal practitioners, it is strictly speaking, not a plausible explanation.  Legal practitioners are expected to familiarize themselves with the rules and ensure compliance.

I agree with the respondent that the appellant`s legal practitioners are in effect pleading ignorance of the law.  That cannot be a plausible explanation for the delay.  I note, however, that the period of the delay was not inordinate.

Prospects of success in the intended appeal

In its draft notice of appeal, the applicant raises nine grounds of appeal.  The first ground of appeal avers that the court a quo erred in failing to deal with the defence raised by the applicant, namely, that the agreement between the parties was illegal for want of compliance with the provisions of the Land Commission Act [Chapter 20:29].

The second ground of appeal is closely linked to the first ground in that it criticizes the court a quo’s decision in giving effect to an illegal lease agreement.

The third ground attacks the court a quo’s finding to the effect that the applicant   had given its consent for the improvements to be carried out yet the respondent had not led evidence showing how the consent was sought and granted.

In the fourth ground of appeal, it is averred that the court a quo erred in deciding the matter without a valuation report when the deed of settlement provided that the quantum of improvements was to be determined by an agreed valuer whose decision would be final and binding on the parties.

In terms of the fifth ground of appeal it is averred that the court a quo erred in failing to decide the residual costs of the improvements when the contract gave the respondent an entitlement to the residual costs and not just the cost of the improvements.

The sixth ground of appeal is similar to the fourth ground of appeal as the applicant contends that the court a quo did not have access to a valuation report nor did the respondent adduce any evidence in support of its claims.

In the seventh ground of appeal, it is alleged that the court a quo erred in imposing the onus to disprove the respondent’s claims on the applicant when the respondent had in the first place, failed to produce any evidence in support of its claims.

In the eighth ground of appeal, the applicant alleges that the court a quo erred in that having found that bush clearance was an operational cost, it went on to grant the claim of US$ 150 000-00 when the agreement between the parties did not impose on the applicant liability for operational costs.

The ninth and last ground of appeal criticizes the court a quo for failure to give any intelligible reasons for the amounts it ordered the applicant to pay.

The applicant prays for the following relief in the intended appeal:

“(a) The appeal be and is hereby allowed with costs.

(b) Paragraphs 1 and 2 of the operative part of the judgment of the court a quo

be set aside and substituted with the following:

(1) The plaintiff’s claim against the defendant is dismissed with costs.”

The applicant contends that the above grounds of appeal have prospects of success.  It avers that the court a quo failed to determine the issue of illegality of the agreement raised by the applicant in its plea and in its closing submissions. I agree with the applicant that in its judgment, the court a quo did not address that issue.  The first ground of appeal has merit.  The appeal court is likely to find in favor of the applicant on that point.

Further, the court a quo appeared to have placed the onus of providing the evaluation report on the applicant contrary to the provisions of the Deed of Settlement which required the respondent, inter alia, to provide evidence that a registered valuer had been engaged.  An appeal court is likely to rule in favour of the applicant in this regard.

While the respondent asserts that the improvements were approved by the applicant, there was no proof in writing of such approvals.  It is unlikely that approvals for such large sums of money would be in the form of verbal communications.  I agree with the applicant that the respondent’s claims, in the absence of an evaluation report and other supporting documents, do not appear to have been substantially proved.  An appeal court is likely to hold that the respondent failed to prove the quantum of its damages.  Indeed, in many respects, the respondent failed to provide relevant invoices, receipts or payment voucher in support of its claims.

I agree with the respondent that the grounds of appeal are repetitive and multiple in number.  However, some of the grounds are valid and concise.  An appeal court is likely to strike out the offending grounds but proceed to determine the appeal on the basis of the remaining grounds of appeal.

DISPOSITION

Although the delay in complying with the infringed rule is not inordinate, the explanation for such delay is not plausible.  However, I am of the view that the intended appeal has reasonable prospects of success.  It is for that reason that the application must succeed.

In the result it is ordered as follows:

The application for reinstatement of appeal be and is hereby granted.

The application for condonation for late service of the notice of appeal on the Registrar of the court a quo be and is hereby granted.

The applicant shall serve the notice of appeal on the Registrar of the court a quo within 5 days of this order.

The applicant shall approach the Registrar of this Court for a determination on the security of costs within 5 days of this order.

There be no order as to costs.

Mugomeza & Mazhindu, applicant’s legal practitioners.

Khuphe & Majamanda Law Chambers, respondent’s legal practitioners.