No. S.C. 36/02
Appeal No. 88/01
READY WHOLESALERS (PRIVATE) LIMITED
INNOCENT KATSANDE (2) ALFRED GOREDEMA
WIRIMAYI JAKOPO (4) STEPHEN SAMHEMBERE
SAILAS BALOYI (6) ITAI MURADZIKWA
CJ, CHEDA JA & MALABA JA
MAY 21 & JUNE 6, 2002
L Machinga, for the
G Ndiweni, for the
CJ: The appellant summarily dismissed the respondents from its
employment on the grounds that the respondents, together
employees of the appellant, embarked on a go-slow with effect
from 8 February 1999. In dismissing the respondents
appellant purported to be acting in terms of Statutory Instrument
368A of 1998.
respondents successfully challenged their dismissal as unlawful in
the High Court. MUNGWIRA J concluded that the respondents
dismissal from employment was null and void. The appellant was
dissatisfied with the judgment of the court a quo
and noted an appeal to this Court against that judgment.
was initially set down for hearing on 4 February 2002. The
matter could not be heard on that date because this
Court had to hear
an urgent constitutional application. On 18 February 2002 the
registrar of this Court issued a fresh notice
of set down for 21 May
2002. The record shows that the notice of set down was served on
Messrs Kantor & Immerman on 5 March
2002. Messrs Kantor &
Immerman are the correspondent legal practitioners of Joel Pincus,
Konson & Wolhuter, the appellants
legal practitioners. The
same notice was served on the respondents legal practitioners a
few days later.
the hearing of this matter there was no appearance for the appellant.
to his credit, did not ask for the dismissal of the appeal. He
asked for the matter to be stood down until the second matter on
roll was disposed of. He wished to find out the reason for the
appellants default and to advise the Court accordingly.
the disposal of the second matter on the roll, Mr Ndiweni
advised the Court from the Bar that Ms Moyo, who had previously
appeared for the appellant, was not aware of the date of set
that someone from Kantor & Immerman had promised to be at Court
by now but had not as yet arrived. The Court adjourned
allow for more time for the appellants legal practitioner to be
the Court reconvened Mr Machinga
appeared for the appellant. He applied for the postponement of the
case on the ground that Ms Moyo was not aware of the date
set-down and that she wished to argue the case. The application for
postponement was opposed by the respondents on two grounds
Firstly, it was argued that the respondents were out of employment
following their unlawful dismissal. The respondents were
anxious to have this matter resolved to enable them to go back to
work. The second contention was that sufficient notice had
given to both parties and that the explanation for the non-appearance
of Ms Moyo was inadequate.
with the submissions made in opposing the application for
postponement and accordingly dismissed the application to postpone
submitted that he stood by the submissions contained in the heads of
argument prepared by Ms Moyo and filed of record. He had nothing
took the point in limine
that the appeal was not properly before the Court as it was invalid
for a number of reasons.
argued that the notice of appeal does not state whether the whole or
part only of the judgment was being appealed against.
The nature of
the relief sought is also not stated in the notice of appeal.
Rule 29(1) (c)-(e)
of the Supreme Court Rules (the Rules) provides as follows:
civil appeal shall be instituted in the form of a notice of appeal
signed by the appellant or his legal representative,
(c) whether the whole or part
only of the judgment is appealed against;
(d) the grounds of appeal in
accordance with the provisions of rule 32;
(e) the exact
nature of the relief which is sought;
the case of Jensen v
Acavalos 1993 (1) ZLR
216 (S) this Court held that the above provisions of the Rules were
peremptory and non-compliance with them rendered
a notice of appeal
null and void.
A perusal of
the notice of appeal reveals the alleged defects. The notice does
not state whether the whole or part only of the
judgment is being
appealed against. The notice of appeal does not state the relief
sought by the appellant on appeal.
basis alone this Court cannot but conclude that the notice of appeal
in this case is a nullity. It cannot be condoned
the above, the notice of appeal was not served on the registrar of
the High Court within the prescribed period of fifteen
rule 29(2) as read with rule 30.
the appellants legal practitioner, was aware of this difficulty
and sought to remedy it by filing with this Court
a notice of
motion. In an affidavit attached to, and in support of, the
notice of motion Ms Moyo makes the following
3. This notice of appeal does
not comply with the mandatory provisions of the Supreme Court Rules
and the applicant hereby applies
for an order for (an) extension of
time within which to note a proper appeal. I have annexed herewith
marked A the proposed
notice and grounds of appeal and I
respectfully submit that it complies with the provisions of
4. At all material times the
applicant had all the intention of noting an appeal against the
judgment of the Honourable Court a quo
and in fact purported to do so. Due to (an) oversight on my part
the purported notice did not contain a prayer and did not indicate
whether the whole or part of the judgment was appealed against. On
this issue being raised by the respondent(s) this application
being made in order to have the error rectified.
was handed down on 21 March 2001 and the proper notice of appeal
should have been filed on or about 11 April
application is being made nine months out of time. I respectfully
submit that this delay is not inordinate given the
fact that the
applicant purported to note the appeal in time.
attached to the petition is an amended notice of appeal that
substantially complies with the Rules. The relief sought in the
petition is set out in the draft order, which provides as follows:
IS ORDERED THAT
1. Leave be and is hereby given
for the applicant to file its notice of appeal within seven (7) days
of the date of this order.
2. The costs
of this application shall be costs in the cause in the appeal in case
no. SC 88/2001.
if the Court were to accept that the so-called notice of motion
was a notification that an application for an extension
within which to file a notice of appeal which complies with the Rules
was going to be made at the hearing of this matter,
application was made. Indeed, if such an application had been made,
the Court would have considered such an application
on the basis of
the well established principles, such as the extent of the delay, the
reasonableness of the explanation proffered
for the delay, and the
prospects of success on appeal. As I said, no such application was
made. The notice or petition was not
served on the respondents.
On the basis of the above facts, I am satisfied that the only notice
of appeal before the Court is fatally
defective and is a nullity.
There is no application before the Court for an extension of time
within which the appellant could
comply with the relevant Rules.
All there is before the Court is a document signifying the
appellants unfulfilled intention
to make such an application at
the hearing of the matter. There is therefore no basis for
considering the merits of this case.
the result, there being no appeal to dismiss, the matter is struck
off the roll. The appellant is ordered to pay the costs.
Pincus, Konson & Wolhuter,
appellant's legal practitioners
respondents' legal practitioners