DISTRIBUTABLE (32)

Judgment No. S.C. 36/02

Civil Appeal No. 88/01

AT THE READY WHOLESALERS (PRIVATE) LIMITED

t/a POWER SALES v

(1) INNOCENT KATSANDE (2) ALFRED GOREDEMA

(3) WIRIMAYI JAKOPO (4) STEPHEN SAMHEMBERE

(5) SAILAS BALOYI (6) ITAI MURADZIKWA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA  JA & MALABA  JA

HARARE, MAY 21 & JUNE 6, 2002

T L Machinga, for the appellant

M G Ndiweni, for the respondents

CHIDYAUSIKU CJ: The appellant summarily dismissed the respondents from its employment on the grounds that the respondents, together with other employees of the appellant, embarked on a “go-slow” with effect from 8 February 1999. In dismissing the respondents the appellant purported to be acting in terms of Statutory Instrument 368A of 1998.

The 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.

This matter 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 appellant’s legal practitioners. The same notice was served on the respondents’ legal practitioners a few days later.

At the hearing of this matter there was no appearance for the appellant. Mr Ndiweni, 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 the roll was disposed of. He wished to find out the reason for the appellants’ default and to advise the Court accordingly. After 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 down and that someone from Kantor & Immerman had promised to be at Court by now but had not as yet arrived. The Court adjourned briefly to allow for more time for the appellant’s legal practitioner to be available.

When 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 of 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 very anxious to have this matter resolved to enable them to go back to work. The second contention was that sufficient notice had been given to both parties and that the explanation for the non-appearance of Ms Moyo was inadequate.

We agreed with the submissions made in opposing the application for postponement and accordingly dismissed the application to postpone the matter.

Thereafter Mr Machinga submitted that he stood by the submissions contained in the heads of argument prepared by Ms Moyo and filed of record. He had nothing to add.

Mr Ndiweni took the point in limine that the appeal was not properly before the Court as it was invalid for a number of reasons.

Firstly, he 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:

“(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state - …

(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; …”.

In 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.

On this basis alone this Court cannot but conclude that the notice of appeal in this case is a nullity. It cannot be condoned or amended.

Apart from the above, the notice of appeal was not served on the registrar of the High Court within the prescribed period of fifteen days – see rule 29(2) as read with rule 30.

Ms Moyo, the appellant’s 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 averments:

“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 Rule 29(1).

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 is now being made in order to have the error rectified.

5. Judgment was handed down on 21 March 2001 and the proper notice of appeal should have been filed on or about 11 April 2001. This 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.”

Also 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:

“IT 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.”

Even if the Court were to accept that the so-called “notice of motion” was a notification that an application for an extension of time within which to file a notice of appeal which complies with the Rules was going to be made at the hearing of this matter, no such 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 appellant’s 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.

In the result, there being no appeal to dismiss, the matter is struck off the roll. The appellant is ordered to pay the costs.

CHEDA  JA: I agree.

MALABA  JA: I agree.

Joel Pincus, Konson & Wolhuter, appellant's legal practitioners

McGown Gideon Ndiweni, respondents' legal practitioners