REPORTABLE
(96)
Judgment No. SC 113/04
Civil
Appeal No. 64/04
PASSMORE
MATANHIRE v
BP
SHELL MARKETING SERVICES (PRIVATE) LIMITED
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA
HARARE,
SEPTEMBER 21, 2004
K
Muskwe, for the appellant
W
Ncube, for the respondent
MALABA JA: At the end of argument in limine on a point
taken on behalf of the respondent, to the effect that there was no
valid appeal before the Court, we upheld the submission
and ordered
that the matter be struck off the roll with costs de bonis
propriis.
It is
not usual to write a judgment on a matter that has been struck off
the roll see S v Ncube 1990 (2) ZLR 303 (S). This
judgment has been written for purposes of drawing the attention of
legal practitioners to the fact that
all the matters required by the
Rules of Court to be stated in a valid notice of appeal are of equal
importance so that failure to
state one of them renders the notice of
appeal invalid.
Rule 7
of the Supreme Court (Miscellaneous Appeals and Offences) Rules (the
Rules) provides that a notice of appeal against
a judgment of the
Labour Court or tribunal other than the High Court shall
state:
(a) the tribunal or officer whose decision is appealed against;
and
(b) the
date on which the decision was given; and
(c) the
grounds of appeal; and
(d) the
exact nature of the relief sought; and
(e) the
address of the appellant or his legal representative.
On
15 January 2004 the Labour Court gave a judgment against which
the appellant (Matanhire) sought to institute an appeal
on
25 February 2004. Rule 5 of the Rules provides that an
appeal against a decision of the Labour Court shall be instituted
within fifteen days of the decision being given. The notice of
appeal, stating all the matters required by Rule 7 of the Rules
to be stated, must also be delivered to all interested parties and
filed with the registrar of the Supreme Court within fifteen days
of
the decision appealed against being given.
The
document delivered and filed by Matanhires legal representative as
a notice of appeal did not state the date on which the
decision
appealed against was given. The respondents heads of argument
drew the attention of Matanhires legal representative
to the fact
that failure to state the date when the decision was given rendered
the notice of appeal fatally defective and a nullity.
It was
indicated that what was needed to be done was to draw up a new notice
of appeal complying with the requirements under Rule 7
of the
Rules and make an application for an extension of time within which
to deliver and file the notice of appeal and for condonation
for
non-compliance with the Rules of Court.
Mr Muskwe,
who was Matanhires legal representative, believed that failure to
state the date when the decision appealed against was given
did not
have an invalidating effect on a notice of appeal as would failure to
state the other matters, such as grounds of appeal
or the exact
nature of the relief sought. He did not even bother to read the
cases referred to in the respondents heads of argument
on what
should be done when a fatally defective notice of appeal has been
delivered and filed. He asked the Court to simply amend
the notice
of appeal by inserting the date when the decision of the Labour Court
appealed against was given.
A
nullity cannot be amended. In Jensen v Acavalos 1993 (1) ZLR
216 (S) KORSAH JA at 220B said that the reason why a
fatally defective notice of appeal could not be amended
was that:
it is not only bad but incurably bad.
Citing
Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority,
the learned JUDGE OF APPEAL said that what should actually be applied
for is an extension
of time within which to comply with the relevant
Rule and condonation of non-compliance.
In BEC
v BIG S-78-02 a notice of appeal which did not state the date on
which the judgment appealed against was given, in contravention of
s 29(1)(a)
of the Rules of the Supreme Court, was held to be
fatally defective and the procedure stated in Jensens case
supra was approved as the appropriate remedy in having a
proper notice of appeal placed before the Court. See also Talbert
v Yeoman Products (Pvt) Ltd S-111-99.
The
purpose of requiring the date when the decision appealed against to
be stated in a notice of appeal is to enable the respondent
and the
Court to determine ex facie the notice of appeal whether the
provisions of Rule 5 of the Rules, prescribing the time limit in
which the appeal should be
instituted and the notice of appeal
delivered and filed, were complied with.
As no valid notice of appeal was delivered and filed within fifteen
days of the date when the decision of the Labour Court was given,
there was no appeal before the Court and to merely insert the
relevant date in the defective notice of appeal, as suggested by
Mr Muskwe, without an application for an extension of
time within which to institute the appeal and for condonation of
non-compliance with
the Rules of Court, would be grossly irregular.
The matter had to be struck off the roll.
The costs
were awarded de bonis propriis to register disapproval of the
manner in which Mr Muskwe conducted the case. He was to
blame for drawing up a defective notice of appeal. The existence of
the defect was drawn to his
attention through the respondents
heads of argument and the appropriate remedy for rectifying the
situation pointed out to him
about two months before the hearing.
It became apparent during the argument he presented to the Court that
Mr Muskwe had not bothered to read the cases cited for
his benefit on the law relating to defective notices of appeal in the
respondents
heads of argument.
In
Omarshah v Karasa 1996 (1) ZLR 584 (H) at 591F GILLESPIE J
stated that:
Costs de bonis propriis will be awarded against a lawyer
as an exceptional measure and in order to penalise him for the
conduct of the case where it has
been conducted in a manner involving
neglect or impropriety by himself.
CHIDYAUSIKU
CJ: I agree.
ZIYAMBI
JA: I agree.
Muskwe & Associates, appellant's legal practitioners
Coghlan,
Welsh & Guest, respondent's legal practitioners
