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Judgment No. SC 37/12 Civil Appeal Nos. 176/12 and 331/12 A

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Judgment No. SC 37/12 Civil Appeal Nos. 176/12 and 331/12 A REPORTABLE (26) Judgment No. SC 37/12 Civil Appeal Nos. 176/12 and 331/12 A. (1) MOVEMENT FOR DEMOCRATIC CHANGE (2) PROFESSOR WELSHMAN NCUBE N.O. v (1) JOBERT MUDZUMWE (2) CONSTANTINE CHIPADZA (3) MORGAN CHANGAMIRE (4) GODFREY GUMBO (5) TSITSI DANGAREMBWA (6) ROSEMARY WHITE (7) MIKA CHIKIKIVAU (8) CHARLES MANYOZO (9) SHEPHERD ADAM (10) PETER KAFUMU (11) SUMAN TABU (12) TAPIWA RUKOBO (13) SAMI CHAKANDUKA B. (1) MOVEMENT FOR DEMOCRATIC CHANGE (2) PRISCILLA MISIHAIRABWI-MUSHONGA v PROFESSOR ARTHUR MUTAMBARA SUPREME COURT OF ZIMBABWE HARARE, SEPTEMBER 26 & OCTOBER 17, 2012 F Girach, for the applicants L Uriri, for the respondents 2 SC 37/12 Before: CHIDYAUSIKU CJ, In Chambers These two chamber applications involve a dispute for leadership of the MDC (M) Party ("the Party) between two factions. The one faction is led by Professor Arthur Mutambara. I shall refer to this faction as "the appellants". The other faction is led by Professor Welshman Ncube. I shall refer to this faction as "the applicants". The applicants in these two Chamber applications seek the dismissal of the appeals noted by the appellants in cases SC 176/12 ("the first case") and SC 331/12 ("the second case"). I will treat these two matters as one for purposes of judgment. The same issue, compliance with r 46(2) of the Supreme Court Rules ("the Rules"), is raised in both matters. Both counsel are in agreement that I roll the two matters into one. Both Chamber applications are made in terms of r 36(1) of the Rules and seek the dismissal of the appeals filed in both cases, on the ground that the appellants failed to enter into good and sufficient security for the applicants' costs of appeal as is required in terms of r 46(2) of the Rules. As I have already stated, the issue that falls for determination in these Chamber applications is the meaning to be ascribed to r 46(2) of the Rules. The facts that form the background to this case are not particularly relevant to the issue that falls for determination. I will, however, summarise them very briefly for the purpose of providing context. The Party held a National Congress ("the Congress") in January 2011. The Congress was convened in 3 SC 37/12 December 2010 by Professor Welshman Ncube, the second applicant, who was at the time the Secretary General of the Party. The appellants applied to the High Court for an order declaring the outcome of the Congress invalid on the ground that the holding of the Congress was not in compliance with the provisions of the Constitution of the Party. The application was dismissed. The appellants noted an appeal against that determination. The applicants also applied to the High Court in separate proceedings for an order interdicting Professor Mutambara from holding himself out as the President of the Party. The application was successful and Professor Mutambara was interdicted from holding himself out as the President of the Party. The appellants (the Mutambara faction) appealed against this judgment. Thus, the Mutambara faction lost in both cases and appealed against both judgments. The appellants, in respect of both matters, were required in terms of r 46 to enter into good and sufficient security for the applicants' costs of appeal, in the absence of a waiver of the right to security. While r 46(5) provides that the security for costs be provided within thirty days of the Notice of Appeal, r 46(2) provides that security for costs shall be provided before lodging the record with the registrar of this Court. There is no reference to a thirty day period in r 46(2), thus creating a potential conflict with r 46(5) which provides that the lodging of the record is done within thirty days. There is need to amend r 46 in order to harmonise sub-rules (2) and (5) of the Rules. I shall revert to this point later. The applicants, the Ncube faction, made these Chamber applications in terms of r 36(1), which provides as follows: 4 SC 37/12 "(1) If an appellant who is required to furnish security for the respondent’s costs of appeal fails to furnish such security within the period prescribed in sub-rule (5) of rule 46, the respondent may forthwith give notice to the appellant that, on the date specified in the notice, being not less than five days after service of the notice, he will apply to a judge for dismissal of the appeal by reason of such failure, and for such other order specified in the notice as he may require.” In para 7 of the Notice of Appeal in the first case the appellants undertook to pay into court the costs of the record and the applicants' costs of appeal: “7. In terms of the Rules the appellants undertake to pay the costs of preparing the record of proceedings and the respondents’ costs including paying into court such costs as requested by the respondents and determined by the Registrar.” (The emphasis is mine) Similarly, the appellants in para 13 of the Notice of Appeal in the second case tendered costs of the record and any other costs: “13. In terms of the rules of court, appellant hereby tenders costs for the preparation of the record and any other costs." (The emphasis is mine) Both Notices of Appeal are clear in that whatever it is that the appellants are offering was in terms of the Rules. It is common cause that the Notices of Appeal containing the above offers of payment of security costs were filed within the thirty days stipulated in r 46(5). It follows, therefore, that, if it is accepted that paras 7 and 13 of the Notices of Appeal constitute entering into good and sufficient security, then there was compliance within the time prescribed by the Rules. The applicants, however, contend that both the undertaking and the tender of costs contained in the Notices of Appeal do not constitute “entering into good and sufficient” security for costs prescribed by r 46(2). 5 SC 37/12 Thus the crisp issue that falls for determination is what constitutes entering into good and sufficient security for costs within the meaning of r 46(2) or, put differently, whether what the appellants offered in the Notices of Appeal constitutes entering into good and sufficient security for costs in terms of r 46(2). According to the shorter Oxford English Dictionary the meaning of the word "good" is: “fitting, and suitable”. The word "sufficient" is an adjective which means: “of a quantity, extent or scope adequate to certain purpose or object”. The word “good”, in the context of r 46, denotes an appropriate method of availing the money that is required, the quality of the method of provision, such as payment into court, deposit into a trust account etcetera. The word “sufficient” simply means an adequate amount or sum of money in the circumstances of the case. In my view, r 46(2) is about arranging for an amount or sum of money, provided in a satisfactory manner of payment, which is capable of covering the applicants’ expenses in the event that the issue is resolved in the applicants’ favour, bearing in mind the circumstances of the case, its complexity, and the length of time it will take to be completed. The applicants submit that the appellants failed, refused or neglected to make adequate arrangements for a suitable amount of money that will cover their expenses. The appellants counter this by arguing that they undertook to pay into court such costs as may be requested by the applicants and determined by the registrar in the event of disagreement. 6 SC 37/12 Whether this undertaking/tender contained in the Notices of Appeal sufficiently discharged the onus on the appellants to enter into good and sufficient security for costs resulted in robust contestation by counsel. Mr Girach, for the applicants, argued that the Court ought to strike out the appeals because r 46(2) placed the appellants in the driving seat of the process of ensuring that adequate security for costs was provided to the registrar. He further argued that the appellants had failed to drive that process. It was, however, accepted by both counsel that, as a matter of ethics and convention, counsel usually communicate telephonically or in writing and discuss a suitable amount and an appropriate method of payment, which may include payment into court, a deposit in the legal practitioner’s trust account or a deposit into a specified bank account pending finalisation of the matter. If the parties fail to agree on an amount of money for the costs the registrar is then called upon to determine a suitable sum. Mr Uriri, for the appellants, whilst accepting the above practice, argued that the nature of the undertaking/tender given by the appellants in their Notices of Appeal was such that the applicants had been invited to request such costs as they saw fit. The appellants contended that the applicants ought to have responded to their request and indicated a figure for their security for costs, the implication being that the appellants would have paid willingly. Put differently, the appellants contended that the undertaking/tender in the Notices of Appeal shifted the onus to the applicants to take the next move and indicate a suitable sum of money to cover their security of costs. I am persuaded by this submission. I find this submission persuasive because whatever the appellants were offering or undertaking was predicated on the Rules.
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