REPORTABLE ZLR
(52)
Judgment
No. SC 53/07
Civil
Appeal No. 279/06
DOCTOR
ANNAMORE JAMU v CITY OF HARARE
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ, CHEDA
JA & MALABA JA
HARARE, JULY 10, 2007 &
MARCH 4, 2008
No appearance for the
appellant
D Kanokanga, for
the respondent
MALABA JA: On 5 October 2006 the appellant noted an appeal against
the judgment of the Administrative Court dismissing an appeal
from a
decision of the respondent by which it rejected an application for a
permit to establish residential clinic on the premises
where the
appellant was operating a private surgery. The appeal was set down
for a hearing on 10 July 2007. The appellant did
not appear at the
hearing in person or by counsel. She had, however, filed heads of
argument.
Mr Kanokanga produced a document containing a notice of set
down which showed that it had been uplifted from the Registrars
Office by a person
who purported to be acting on behalf of the
appellant. Mr Kanokanga argued that in the circumstances the
appellant was in wilful default of appearance. He said that he was
entitled to present the
respondents case on the merits. The Court
canvassed with counsel the question whether the best course was not
to have the appeal
struck off the roll in case the appellant was not
aware of the date of the hearing. Mr Kanokangas position
was that in the light of the evidence of the document made available
to it the Court was to proceed on the basis that
the appellant was
aware of the date of the hearing of the appeal. The court allowed Mr
Kanokanga to make submissions on the merits of the appeal, at
the conclusion of which it reserved judgment.
On 11 July 2007 a letter was written to the Registrar by the
appellants legal practitioners alleging that the appellant had
not
been served with the notice of set down of the appeal for the hearing
on 10 July. The letter reads in part:
Further to our letter of 10 July wherein we sought your
clarification regarding the service of the notice of set down of the
above appeal which was enrolled for yesterday (10 July 2007) and the
appellant was in default, we discovered from your offices
that the
endorsement on the notice of set down was to the effect that the
notice had been uplifted from your offices by NYASHA
MAKWANISE on 14
June 2007. We do not have anyone in our employ by the name NYASHA
MAKWANISE and neither our offices nor Advocate
Matinenga were aware
of the set down. We record as well that NYASHA MAKWANISE appears to
be an employee of the respondents
legal practitioners.
The letter was copied to Mr Kanokanga. There has been no
denial of the allegation that the person who uplifted the notice of
set down of the appeal was an employee
of the respondents firm of
legal practitioners. It must be accepted as a fact that the
appellant was not served with the notice
of set down and had no
knowledge of the date of the hearing of the appeal.
Rule 36(4) of the Rules of the Supreme Court provides that:
Where, at the time of the hearing of an appeal, there is no
appearance for the appellant and no written arguments have
been filed by him, (my emphasis) the court may dismiss the appeal
and make such order as to costs as it may think fit.
Provided that an appeal dismissed in terms of this subrule may
thereafter on application by the appellant be reinstated.
The question arises as to what course the Court has to take in a case
in which the appellant has filed heads of argument and there
is
sufficient proof that he or she had notice of the date of the hearing
of the appeal but does not appear at the hearing. Upon
a proper
construction of r 36(4) the Court in the circumstances does not have
to dismiss the appeal without a hearing. It may
proceed to hear the
appeal and make a determination taking into account the written
representations made by the appellant in the
heads of argument. A
discretion manifestly rests in the Court in a matter of this kind.
In R v Mokwena 1954(1) SA 256(A) the appellant, who had been
duly served with a notice of set down, did not appear at the hearing
of the appeal.
Considering the course the court could take
CENTLIVRES CJ at p 257 B said:
In my view the court has a discretion, depending on the
circumstances of each case, to hear the appeal or strike it off the
roll or to postpone the hearing.
The court in that particular case dealt with the facts and dismissed
the appeal. It is clear that r 36(4) confers a discretion
on the
Court whether to dismiss the appeal with the prospects of an
application for an order of reinstatement being made later
where the
circumstances mentioned thereunder are present, that is to say, the
appellant was aware of the date of the hearing of
the appeal and had
not filed heads of argument.
Whilst the appellant filed heads of argument in this case she had no
knowledge of the fact the appeal had been set down for a hearing
on
10 July 2007. The subrule does not apply. The Court is not in a
position to hear the appeal either. The best course to take
is to
strike off the appeal from the roll with no order as to costs.
The appeal is struck off the roll with no order as to costs.
CHIDYAUSIKU CJ: I agree
CHEDA JA: I agree
Kanokanga & Partners, respondents legal practitioners