REPORTABLE (26) Judgment No. SC 37/12 Civil Appeal Nos. 176/12 and 331/12

A. (1) MOVEMENT FOR DEMOCRATIC CHANGE (2) PROFESSOR 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 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

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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:

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"(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).

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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.

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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. In other words, the offer or undertaking given in the Notices of Appeal were made in terms of the Rules and thus had to be read with the Rules.

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No satisfactory explanation was given to the Court as to why the convention of communicating, as a courtesy, between members of the profession fell into disuse in this case.

On being invited to address the Court on this aspect, Mr Girach maintained that the onus was on the appellants to drive the process and make the first move. Mr Uriri submitted was that the appellants' written undertaking was an invitation to treat which the applicants failed to take up for reasons best known to them.

Mr Uriri also sought to produce a letter allegedly filed of record with the Registrar of the

Supreme Court at Bulawayo and with Messrs Webb, Low and Barry, the applicants’ legal practitioners of record, in which the appellants allegedly attempted to engage the applicants on the issue of security for costs. The applicants denied ever receiving the letter and objected to its production. The appellants tendered the letter as proof that they did something and to counter the contention by the applicants that they sat on their laurels and did not do anything to rectify their alleged non-compliance with the provisions of r 46(2). I provisionally admitted the letter subject to my ruling on the matter.

I have concluded that it is not necessary for me to make a ruling on the admissibility of the letter, because I will determine this matter on the basis that paras 7 and 13 of the Notices of

Appeal constitute entering into good and sufficient security for the costs required by r 46(2).

Mr Girach submitted that r 46(2) does not contemplate that an undertaking suffices for purposes of providing “good and sufficient” security for costs. He argued that if this were so, the Legislature would have used the same express language used in r 34(1). Rule 34(1) provides:

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"(1) The appellant, unless he has been granted leave to appeal in forma pauperis shall, at the time of the noting of an appeal in terms of rule 29 or within such period therefrom, not exceeding five days, as the Registrar of the High Court may allow, deposit with the said Registrar the estimated cost of the preparation of the record in the case concerned: Provided that the Registrar of the High Court may, in lieu of such deposit, accept a written undertaking by the appellant or his legal representative for the payment of such cost immediately after it has been determined.”

Thus, r 34(1) expressly provides that the appellant deposits with the registrar the estimated cost of the record and also authorises the registrar to accept a written undertaking by the appellant or his legal representative in lieu of the deposit. Rule 46, it was argued, does not provide for a written undertaking and therefore does not envisage a written undertaking as a method of providing good and sufficient security.

Rule 46(2) provides that:

“(2) Where the execution of a judgment is suspended pending an appeal and the respondent has not waived his right to security, the appellant shall, before lodging with a registrar copies of the record, enter into good and sufficient security for the respondent’s costs of appeal: Provided that where the parties are unable to agree on the amounts or nature of the security to be provided, the matter shall be determined by the registrar."

Thus r 46(2) -

(i) enjoins an appellant to enter into good and sufficient security before lodging

copies of the record with the registrar.

(ii) empowers the registrar to determine the amount of security for costs where the

parties are unable to agree.

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I am not persuaded by Mr Girach's submission. The critical phrases in the two Rules are

"written undertaking" in r 34(1) and "enter into" in r 46(2). In my view, these two phrases are not mutually exclusive or destructive. The one "enter into" is broader in meaning and subsumes the later written undertaking. The use of the different phrases, which mean essentially the same, does not evince a different intention on the part of the legislator. A written undertaking offering good, such as cash deposit, payment into court etcetera, of an adequate sum of money to cover the respondent's costs is sufficient compliance with r 46(2). Obviously what constitutes adequate or sufficient amount of money in dollars and cents is something at the point in time the offer is made is privy to the respondent. Where an offer to pay money into court as security for costs is made it becomes incumbent on the respondent to disclose the amount the respondent requires to cover its costs. In the event of a failure to agree on the quantum the registrar determines the quantum. It is not open to the respondent to refrain from disclosing the quantum until after dies induciae in order to facilitate a claim for dismissal for default. I am therefore satisfied that the offer and the undertaking to meet the applicants' costs, as set out in paras 7 and

13 of the Notices of Appeal, constitute sufficient compliance with r 46(2).

Apart from the above, r 36(1) does not enjoin the Judge to dismiss an appeal in every case of failure to comply with r 46(2). The Judge has a discretion in the matter. In this regard r 36(3) provides:

"(3) The judge, on an application for dismissal by the respondent brought in terms of sub-rule (1), may dismiss the appeal and, additionally or alternatively, may make such other order as he thinks fit, including any order as to costs, whether or not one or other or both the parties to the appeal appear at the hearing."

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Thus, the exercise of the power to dismiss the appeal is dependent upon the decision by a

Judge whether or not to exercise his discretion to dismiss the appeal, or to make any other order as he thinks fit. The question is what the interests of justice demands of the Judge in the exercise of the discretion conferred upon him by r 36(3) in the circumstances of each case.

Generally speaking, justice demands that an appeal should be determined on the merits as opposed to being dismissed on a technicality. However, the need to determine an appeal on the merits is no licence to disregard the Rules. The Judge has to balance the demands of the one against the other.

I find the conduct of both parties leaves a lot to be desired. The parties failed to act in accordance with the convention of communicating and deciding a suitable method of providing for security for costs. This litigation could have been avoided by the exercise of commonsense.

In concluding that this is not a proper case for dismissal of the appeals, I have also taken into account the following factors –

1. The appellants furnished a written undertaking for security for the costs of the

appeal within one month of the date of filing the Notice of Appeal, in compliance

with the provisions of r 46(5).

2. A written undertaking to furnish security for the costs of the appeal is a credible

method of providing security for costs.

3. Rule 46(2) does not expressly provide one method of providing security for costs,

as opposed to r 34 which demands that a deposit of cash be made directly to the

registrar of the High Court.

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4. Rule 46(2) could have bona fide misled the appellants into believing that the time

for the provision of security for costs has not elapsed and that this could be done

any time before the records were lodged with the registrar of the Supreme Court,

which lodging of the record is yet to take place.

5. The applicants should have made a demand of a specific amount which it

considered appropriate as provision for their security for costs, in response to the

offer for security of costs made in the Notices of Appeal.

6. The parties are equally to blame for not communicating with each other on the

issue of the provision for the security for costs.

In the result, it is ordered that -

1. The applications for dismissal of the appeals in case numbers SC 176/12 and

SC 331/12 are hereby dismissed.

2. The parties are directed to agree on the amount and manner of securing the

applicants' costs of appeal within ten days of this judgment, failing which the

registrar of this Court shall determine an appropriate amount to be paid into

court for security for costs in terms of r 46(2) within thirty days of the date of

this judgment.

3. Costs will be costs in the cause.

Webb, Low & Barry, applicants’ legal practitioners Mbidzo, Muchadehama & Makoni, respondents’ legal practitioners