BEZBET Betting Company had its High Court application for condonation for non-compliance with the court rules, extension of time which to note an appeal and reinstatement of appeal struck off the roll by Justice Siyabona Musithu who ruled the application is defective.
Bezbets had sought the court to grant their application and reinstate its appeal against a Punter, Prosper Dembedza who was denied his betting winnings of more than US$5 000.
Bezbets was also asked to pay the costs of suit.
The betting company had cited the Punter Prosper Dembedza as the respondent.
ln their application before the High Court Bezbets owner Benard Zieve deposed an affidavit as the licensee for his betting business which trades under the name and style Bezbets.
Zieve had claimed that he was solely responsible for any dispute that arose from the betting public, and further to be sued and to sue in his name. He also claimed that the name Bezbets Betting Company was non existent and one could not sue or be sued in that name.
He had further submitted that he had a bona fide case against Dembedza and associated himself with the averments made by his legal practitioner Brighton Pabwe
He submitted that Bezbets Betting Company was a creation of the respondent as the applicant is only known as Bezbets.
Zieve claimed that he noted an appeal on behalf of the applicant on 28 June 2024 under HC 2819/24 and on 31 July 2024 he received a letter from the Registrar inviting him to file heads of argument within 15 working days from the date of the letter and upon receiving the letter, he noted that the court had closed for the August 2024 vacation on 26 July 2024 and would reopen on 9 September 2024.
He submitted that he thought filing of heads could only be done after vacation.
Zieve said on 28 August 2024 he received a letter from the Registrar advising that the appeal was deemed abandoned and therefore dismissed in terms of r 95(20) of the High Court rules, 2021. This was on account of the failure to file heads of argument.
He said the failure to file heads of argument was not out of negligence or recklessness but it was driven by a bona fide belief in an erroneous appreciation of the rules of the court.
He further argued that the delay in filing the heads of argument was not in ordinate as it was only three days. He also averred that he had high prospects of success in the appeal therefore the application was not frivolous.
He averred that Bezbets had been found in the present predicament due to his error and as such should not be punished for his mistake.
However, Dembedza through his legal practitioner Peter Patisani opposed the application and raised two preliminary points which were that the applicant failed to address the prospects of success in the founding affidavit and that the court could not reinstate a nullity.
Dembedza argued that Bezbets had failed to address the prospects of success on appeal and that the failure to do so was fatal to the application.
He urged the court to strike out the application on that basis. Dembedza also averred that there was no proper appeal in the first place and the court could not reinstate a nullity.
The applicant had noted an appeal in the general division of the High Court for a matter that was heard by the Commercial Division of the Magistrates Court.
Dembedza averred that there was a specialized appeals court in the form of the Commercial Division of the High Court, and the appeal ought to have been lodged with that court.
He further argued that in the previous application that was unceremoniously withdrawn by the applicant, he had raised the same issue and instead of accepting the advice, the applicant proceeded to file the present application in the general division of the High Court mstead of the Commercial Division.
Dembedza urged the court to dismiss the application instead of striking it off because nothing would be achieved by the mere striking off of the matter from the roll in the circumstances where there was no possibility of the appeal being reinstated in the general division of the High Court.
lt was Dembedza’s contention that the current application was not sincere and had been lodged for a singular reason of litigating him out of pocket as well as delaying the resolution of the dispute. The court was urged not to reward such behavior, but rather express its displeasure through an appropriate order of costs on a higher scale.
Dembedza said when Bezbets sought a default judgement they deposed an affidavit and sworn statement that Bezbets Betting Company was a trade name saying they could not say its not their name at this stage.
Dembedza further averred that the purported application for condonation and reinstatement of an appeal did not meet the requirements for such an application in that the applicant failed to explain the extent of delay; the prospects of success; the importance of the case; the balance of convenience and the need to achieve finality in lingation.
He submitted that a serious legal practitioner would have filed heads of argument instead of relying on their flawed interpretation of the rules.
He urged the court not to condone such an omission that was necessitated by gross negligence and deliberate flouting of the rules. He averred that the appeal was frivolous and vexatious and filed for the purpose of delay while the applicant was busy prosecuting interpleader proceedings in the lower court and not giving precedence to the High Court matter.
After hearing both parties Justice Musithu concured with Dembedza that Bezbets ought to have set out that it has good prospects of success, in relation to both condonation and the reinstatement of appeal on its founding affidavit.
“The principle that permeates across the above authorities is that prospects of success must be properly pleaded and demonstrated in the founding affidavit.
“Failure to do so renders the application defective. For that reason, this court is satisfied that there is merit in the respondent’s preliminary point that the application is not properly before the court.
“The court was urged to dismiss the application with costs on the attorney and client scale. The court finds no exceptional circumstances that warrant an order of costs on that scale Resultantly it is ordered that the application is hereby struck of the roll for being fatally defective and the applicant shall bear the respondent’s costs of suit,” Justice Musithu ruled.
On March 15, 2024, a Harare magistrate sentenced Bezbets to pay a $500 fine for defrauding Dembedza.
It was proved that on October 26, and the Bezbets online platform, Dembedza placed a bet on the roulette with a stake of US$394.
The platform gave him a potential win of US$5 400, provided the bet was won.
But after winning, the company refused to pay him and engaged him intending to pay him US$1 800.
He reported the matter leading to the prosecution of the company.
