Bezbets Betting Company has lost its High Court application for condonation for non-compliance with the court rules, extension of time to note an appeal and reinstatement of an appeal struck off the roll by Justice Siyabona Musithu who said the application is defective.
Bezbets had sought the court to grant its application and reinstate its appeal against local punter, Prosper Dembedza who was last year denied his betting winnings of more than US$5 000.
Bezbets was also asked to pay the costs of the suit.
The betting company had cited Dembedza as the respondent.
ln an application to the High Court, Bezbets owner Benard Zieve deposed an affidavit as the licensee for his betting business.
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 submitted that he had a bona fide case against Dembedza and associated himself with the averments made by his lawyer Brighton Pabwe.
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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 June 28,2024 under HC 2819/24 and on July 31,2024 he received a letter from the registrar inviting him to file heads of argument within 15 working days from the date of the letter.
He said upon receiving the letter, he noted that the court had closed for the August 2024 vacation on July 26, and would reopen on September 9..
He submitted that he thought filing of heads could only be done after the vacation.
Zieve said on August 28 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 argued that the delay in filing the heads of argument was not inordinate 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 added 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 lawyer 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 specialised 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 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 instead 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 behaviour, 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 arguing that Bezbets Betting Company was a trade name, saying they could not say it was not their name at this stage.
Dembedza 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 concurred 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 US$500 fine for defrauding Dembedza.
The court heard that on October 26, 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 to police, leading to the prosecution of the company.
