DISTRIBUTABLE (61)

Judgment No. SC 64/02

Civil Application No. 216/02

BOBBY MAPARANYANGA v

DEAN PERNELL VAN SCHALKWYK

SUPREME COURT OF ZIMBABWE

HARARE, AUGUST 14, 2002

Before CHIDYAUSIKU  CJ, In Chambers

M Chiwunda, for the applicant

Ms Nagar, for the respondent

This 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.

The grounds of opposition are set out in paras 2-5 of the notice of opposition, which read as follows:

“2. Ad paragraphs 3 and 4

This is admitted. However, (the) said notice of appeal is a nullity in that it failed to comply with the provisions of Rules 29(c), 29(f) 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.

2.2 The appellant failed to provide any address for service.

2.3 The grounds of appeal are not set out succinctly and clearly.

This renders (the) said notice of appeal incurably bad to the extent that it cannot be amended or condoned. Furthermore, (the) said appeal was out of time in that it should have been filed within fifteen days of the judgment a quo, that is, by the 15^th of November 2000 and no application was made for condonation. In this regard, I attach hereto as Annexure ‘A’, a copy of the appellant’s notice of appeal in SC 316/01.

3. Ad paragraph 5

This is admitted. However, this does not provide grounds to reinstate the appeal. Furthermore and in any event (the) said appeal being incurably bad as aforementioned cannot therefore be reinstated.

4. Ad paragraph 6

This is admitted.

5. Ad paragraph 7

This is admitted. However, given the aforementioned procedural defects, which render the appellant’s 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 8^th of February 2002, I respectfully pray that the appellant’s application be dismissed with costs.”

The respondent submitted that the appeal has no prospects of success and should not be re-instated. It was further argued for the respondent that this matter has gone on for too long and I should bring litigation in this matter to finality by refusing to reinstate it. The respondent also argued that in the event that I reject the above submission and order that the matter be re-enrolled, the applicant 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.

This matter was struck off the roll. The matter had not lapsed for want of compliance with the Rules of this Court. When a matter lapses or is struck off the roll for non-compliance with the Rules of this Court it follows that condonation for non-compliance with the Rules has to be obtained from this Court or a Judge of this Court before it can be reinstated. Where, however, the matter is simply removed 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 request.

The 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.

This 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 not be re-enrolled, I would do so using the inherent jurisdiction or powers of this Court under Rule 4.

However, I am satisfied that I should not take that course for two reasons –

Firstly, while I accept that the applicant’s notice of appeal leaves a lot to be desired, it is in my view not a complete nullity as contended. The notice of appeal is long and rambling, but it does convey in a layman’s language that the appellant was appealing against the 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.

Secondly, I do not accept the respondent’s 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.

In 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 clearer.

3. All parties in this matter in the court a quo should be joined in this appeal.

4. Costs are reserved.

Mapfumo, Debwe & Partners, applicant's legal practitioners (In forma pauperis)

Atherstone & Cook, respondent's legal practitioners