DISTRIBUTABLE
(52)
Judgment
No. SC 61/03
Civil
Appeal No. 374/02
FREEZEWELL
REFRIGERATION SERVICES (PRIVATE) LIMITED
v BARD
REAL ESTATE (PRIVATE) LIMITED
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA
BULAWAYO,
DECEMBER 1, 2003 & MARCH 2, 2004
N
Ndlovu,
for the appellant
K
Ncube,
for
the respondent
MALABA JA:
On dates undisclosed in the papers, but in January and February
2002, the appellant (Freezewell Refrigeration),
a private
company, repaired air conditioners and doors in a building complex
owned by the Forestry Commission, in terms of a contract
entered into
with the respondent (Bard Real Estate), an estate agent which
managed the property. When Freezewell Refrigeration
presented
invoices for the work done and materials supplied, Bard Real Estate
objected to the charges alleging that they were unreasonably
high.
It, however, paid a sum of $153 624.00 on the invoices and
refused to pay the outstanding balance of $403 156.00.
On 14 March
2002 Freezewell Refrigeration instituted action in which it claimed
the payment of the outstanding amount and costs
of suit. Bard Real
Estate entered an appearance to defend, followed by a plea in which
it alleged that the amount the payment of
which was claimed
represented unreasonably high charges for the work done and materials
supplied. Instead of seeking further particulars
of the plea,
Freezewell Refrigeration made an application to the High Court for
summary judgment which was opposed.
In
dismissing the application with costs on the legal practitioner and
client scale on 17 October 2002 the learned judge said:
The
respondent denied liability for the present charges on the grounds
that they were exorbitant. Notwithstanding this plea which
clearly
discloses a defence on the part of the respondent, the applicant
proceeded to apply for summary judgment. It cannot be
said that the
applicant has established a clear and unanswerable case upon which an
application of that nature can be granted.
The respondent is
entitled to query the reasonableness of the charges levied against
it. This applicant alleges that an officer
of the respondent had
verbally agreed to meet the charges. This is denied by the
respondent, thereby giving rise to a factual dispute
which cannot be
resolved without hearing viva
voce
evidence. Further it is obvious that in the circumstances the sum
claimed cannot be regarded as liquid as it is subject to proof.
Accordingly there is absolutely no merit in this application. The
application is hereby dismissed with costs on the higher scale.
On 31 October 2002 Freezewell
Refrigeration filed a document purporting to be a notice of appeal
against the part of the judgment
awarding costs on the legal
practitioner and client scale. The document as a notice of appeal
was fatally defective as it did not
state the exact nature of the
relief which was sought on appeal, thereby contravening the mandatory
provisions of Rule 29(1)(e)
of the Rules of the Supreme Court.
In Talbert
v Yeoman Products (Private) Limited
S-111-99 MUCHECHETERE JA held that a notice of appeal
which suffered from defects arising from non-compliance with the
provisions of Rule 29(1) was null and void. The learned JUDGE
OF APPEAL quoted with approval at p 3 of the cyclostyled
judgment from a judgment of KORSAH JA in Jensen
v Acavalos
1993 ZLR 216 (S) where it was stated at p 220:
The
reason is that a notice of appeal which does not comply with the
rules (in that case the notice did not have a prayer for relief)
is
fatally defective and invalid. That is to say, it is a nullity.
It is not only bad, but incurably bad, and, unless the Court
is
prepared to grant an application for condonation of the defect and
allow a proper notice of appeal to be filed, the appeal must
be
struck off the roll with costs: De
Jager v Diner & Anor 1957
(3) SA 567 (A) at 574 CD.
In Hattingh
v Piennar 1977
(2) SA 182 (0) at 183, KLOPPER JP held that a fatally defective
compliance with the rules regarding the filing of appeals cannot
be
condoned or amended. What should actually be applied for is an
extension of time within which to comply with the relevant rule.
There
was no amended notice of appeal accompanied by an application for an
extension of time within which to file it and condonation
for non
compliance with the Rules.
The
appeal is therefore struck off the roll with costs.
CHIDYAUSIKU CJ: I agree.
CHEDA JA: I agree.
Lazarus &
Sarif, appellants
legal practitioners
Job
Sibanda & Associates,
respondents
legal practitioners
