No. SC 64/02
Application No. 216/02
PERNELL VAN SCHALKWYK
COURT OF ZIMBABWE
AUGUST 14, 2002
CHIDYAUSIKU CJ, In Chambers
for the applicant
for the respondent
matter was struck off the roll with costs on 5 February 2002.
No reasons for judgment were given. This is usually
the case when a
matter is struck off the roll. According to the applicant, his
erstwhile legal practitioner renounced agency a
few days before the
hearing of the appeal. He unsuccessfully sought a postponement.
Instead the matter was struck off the roll
with costs. Following
this, the respondent sought to evict the applicant on the basis of
the High Court judgment which was in his
favour. This in turn led
to the applicant making an urgent Chamber application to have the
matter re-enrolled. The application
for the re-enrolment of this
matter was opposed.
grounds of opposition are set out in paras 2-5 of the notice of
opposition, which read as follows:
paragraphs 3 and 4
is admitted. However, (the) said notice of appeal is a nullity in
that it failed to comply with the provisions of Rules 29(c),
and 32 of the Supreme Court Rules, in that:
2.1 (The) appellant did not set
out the exact nature of the relief sought; to pray that the appeal
be upheld or that the matter be
referred to trial is meaningless.
appellant failed to provide any address for service.
grounds of appeal are not set out succinctly and clearly.
(the) said notice of appeal incurably bad to the extent that it
cannot be amended or condoned. Furthermore, (the) said
out of time in that it should have been filed within fifteen days of
the judgment a quo,
that is, by the 15th
of November 2000 and no application was made for condonation. In
this regard, I attach hereto as Annexure
a copy of the appellants notice of appeal in SC 316/01.
is admitted. However, this does not provide grounds to reinstate
the appeal. Furthermore and in any event (the) said appeal
incurably bad as aforementioned cannot therefore be reinstated.
admitted. However, given the aforementioned procedural defects,
which render the appellants notice of appeal a nullity,
as well as
the fact that the appellant has not attempted to reinstate the matter
since it was struck off the roll on the 8th
of February 2002, I respectfully pray that the appellants
application be dismissed with costs.
respondent submitted that the appeal has no prospects of success and
should not be re-instated. It was further argued for
that this matter has gone on for too long and I should bring
litigation in this matter to finality by refusing to
The respondent also argued that in the event that I reject the above
submission and order that the matter be re-enrolled,
should be placed on terms and ordered to amend his notice of appeal.
It was submitted that the applicant should amend
his notice of
appeal so that it sets out the relief sought and the grounds of
appeal clearly and succinctly as is required by the
Rules of this
Court. It was also submitted that this matter should be given
priority in set down as it has been outstanding for
a long time.
matter was struck off the roll. The matter had not lapsed for want
of compliance with the Rules of this Court. When a matter
is struck off the roll for non-compliance with the Rules of this
Court it follows that condonation for non-compliance with
has to be obtained from this Court or a Judge of this Court before it
can be reinstated. Where, however, the matter is
from the roll or struck off the roll without the Court considering
the merits of the case, there is no need for the
party seeking to
have the matter enrolled to apply to the Court or a Judge of this
Court for such enrolment. All that is required
of the party is a
request to the registrar for the matter to be enrolled or set down.
The present matter falls into that category
of cases. The matter
was not dismissed. The merits of the case, including the points
taken in limine,
were not considered and determined. The matter was simply removed
from the roll. Accordingly, it is eligible for enrolment upon
respondent has submitted that there is need to finalise this matter
expeditiously as it has been outstanding for a long time
and urged me
to order that this matter be given priority in setting down if I
should grant the application for enrolment.
Court has inherent jurisdiction to control its proceedings and Rule 4
also confers on this Court powers to depart from the
Rules in the
interests of justice. Thus if I were satisfied that it was in the
interests of justice to order that the matter should
re-enrolled, I would do so using the inherent jurisdiction or powers
of this Court under Rule 4.
I am satisfied that I should not take that course for two reasons
while I accept that the applicants notice of appeal leaves a lot
to be desired, it is in my view not a complete nullity
The notice of appeal is long and rambling, but it does convey in a
laymans language that the appellant was appealing
whole judgment of the court a quo
and that the appellant was seeking to have the agreement of sale
between the first and second respondents set aside. The appellant
has now been allocated counsel in
forma pauperis, who
has undertaken to amend or redraft the notice of appeal to make it
clearer within seven days of this matter being re-enrolled.
I do not accept the respondents submission that the appeal has no
prospects of success. The applicant has prospects
of success on
appeal, in that the judge in the court a quo
seems to have relied for his conclusion on the oral terms of the
agreement which are inconsistent with the explicit terms of the
written agreement contrary to the parol
evidence rule. Another court might come to a different conclusion.
the result, I make the following order
1. That the registrar is ordered
to enrol this matter and to give it priority.
2. That the applicant is granted
leave to amend the notice of appeal in order to make the grounds of
appeal and the relief sought
3. All parties in this matter in
the court a quo
should be joined in this appeal.
4. Costs are reserved.
Debwe & Partners,
applicant's legal practitioners (In
respondent's legal practitioners