DISTRIBUTABLE (28)
Judgment No. SC 37/07
Civil Application No.
21/04
JOHN
NHARARA v NATIONAL BREWERIES
SUPREME COURT OF
ZIMBABWE
HARARE, JUNE 13, 2007
The appellant in person
K Ncube, for the
respondent
Before
GWAUNZA JA: In Chambers in terms of r 31 of the Supreme Court Rules.
At the conclusion of the hearing in this matter, I dismissed the
application and indicated the reasons would follow. These are the
reasons.
On 6 January 2004 the Labour Court dismissed the applicants appeal
against his dismissal from employment with the respondent.
On 28
September 2004 a document entitled Notice of Appeal Against
Judgment No. LC\11\281\03 was filed in this Court on behalf
of the
applicant. Referring to this notice, the respondent in its Heads of
Argument raised several points in limine, as follows;
that the notice was a nullity since it did not comply with subrule 1
of Rule 29 of the rules of this Court, in particular, that
it had
not been signed by the appellant or his legal representative, did
not state the date of the judgment sought to be appealed
against,
the relief sought, nor a physical address for service; and
that the grounds of appeal raised no issues of law.
In
apparent reaction to these arguments, the applicant on 12 April 2005
filed with this Court, a document styled Notice of Amendment
of
Notice of appeal in which he stated that for the first time
this matter appears before a Judge he would make an application
to
amend the original notice of appeal
On 8 May 2007, the date on which the appeal was set down for hearing,
this Court struck the matter off the roll on the ground that
the
purported notice of appeal was not properly before the Court since it
did not comply with certain essential requirements for
a valid notice
of that nature. The notice had also been filed some 9 months out of
time, without any application having been made,
much less granted,
for an extension of time within which to file it. The applicant
therefore never had a chance to apply for the
amendment of his
original notice of appeal, even assuming he would have been able to
do so.
Before me the
applicant sought an order granting him an extension of time within
which to file his notice of appeal. A point in limine was
raised by the respondent, to the effect that the notice of appeal
whose late filing the appellant sought to have condoned, was
the same
fatally defective notice (therefore a nullity) that had caused the
appeal to be struck off the roll on 8 May 2007. It
was contended
for the respondent that this Court has ruled in Jack v S (2)
ZLR 166 that a notice of appeal that is a nullity cannot be amended
because there was nothing to amend.
There was evident
merit in the respondents submissions. The applicant had indeed
not taken the trouble to draft a notice of
appeal that compiled with
the Rules of the Court. His attempt to amend a fatally defective
notice of appeal was clearly doomed to
failure. He was, therefore,
effectively seeking the leave of this Court to file, out of time, a
notice of appeal that was fatally
defective. For obvious reasons,
such an application could not have succeeded.
Even if the purported notice of appeal had not been a nullity, there
would have been other grounds for dismissing the application.
The
respondents argue correctly that the purported appeal raised no
points of law - only factual ones - and therefore did not establish
any basis upon which the decision of the Labour Court could be set
aside. In addition to this, the applicant proffered no good
explanation
for the long delay in filing his notice of appeal beyond
stating that he considered that it had been properly filed. Finally
on the
merits, the applicant did not state what his prospects of
success were. He was, in any case found to have been at the scene of
the
commission of the theft of the respondents property, that is,
the pallets. This circumstance in my view, rendered unassailable,
the court a quos finding that, on a balance of
probabilities, he had aided and abetted such theft.
For these reasons, I found the application to have no merit, hence my
dismissal of it.
Gill, Godlonton & Gerrans, respondents legal
practitioners
