DISTRIBUTABLE   (11)

DELTA     BEVERAGES      (PRIVATE)     LIMITED

v

ZIMBABWE     REVENUE     AUTHORITY

SUPREME COURT OF ZIMBABWE

BHUNU JA

HARARE, JUNE 1, 2017 AND FEBRUARY 19, 2019

D Tivadar, for the applicant

S Bhebhe, for the respondent

CHAMBER APPLICATION

BHUNU JA:        This is an application for leave to appeal against a decision of the High Court in terms of r 30 (c) of the Supreme Court Rules, 1964. After hearing counsel and reading the papers filed of record, I ordered that the application be struck off the roll and indicated that the reasons would follow. These are they.

The applicant is a company carrying on the business of manufacturing alcoholic and non-alcoholic beverages in Zimbabwe. The respondent is an administrative authority established in terms of the Revenue Authority Act [Chapter 23:11] and tasked among others with collection of revenue dues. The applicant approached the High Court under HC 12009/16 on an urgent basis seeking an interdict against the respondent. The sequence of events which led the applicant to take this action can be summarised as follows:

On 14 April 2016, the respondent confirmed a tax assessment, penalty and interest against the applicant. These were communicated to the applicant. The applicant objected to the assessment in terms of s 62 of the Income Tax Act [Chapter 23:08]. The respondent did not accede to the objection, its position on 9 May 2016 was that the assessed tax was due and payable. The respondent wrote to the applicant reminding it of its obligation despite its right of appeal to the Fiscal Court in terms of s 65 of the Income Tax Act. Under cover of a letter dated 21 November 2016, the respondent indicated its intention to institute recovery measures if the penalty was not paid by 25 November 2016.

The applicant, upon receipt of the letter dated 21 November 2016, approached the High Court on 24 November 2016 on an urgent basis seeking an order interdicting the respondent from employing its recovering measures pending the outcome of the appeal it had noted. The court a quo found that the matter was not urgent and the application was struck off the roll on 1 December 2016. Applicant was aggrieved by that decision and it filed an application for leave to appeal against the decision in the court a quo. The application was dismissed on 8 March 2017.  This necessitated the filing of the present application. The applicant filed this application on 7 April 2017.

This application is being made in terms of r 30 (c) of the Supreme Court Rules, 1964. It reads thus:

“An appellant shall institute an appeal within the following times — if leave to appeal is necessary and has been refused, by the High Court, by making application for leave to appeal within ten days of the refusal of leave to appeal.” (my emphasis)

Rule 30 (c) allows an applicant to whom leave to appeal is denied by the High Court to seek leave from this Honourable Court. The only caveat to this rule is that the application for leave to appeal must be filed within 10 days of the refusal of leave to appeal. In casu the applicant was denied leave to appeal on 8 March 2017. The applicant filed this application on 7 April 2017, 12 days out of time. The applicant`s last day of filing this application was 22 March 2017. The applicant being out of time did not seek condonation for non-compliance with the Rules and extension of time within which to file an application for leave to appeal against the decision of the High Court.

Rule 30 (c) is mandatory and must be complied with. Failure to file an application for leave to appeal within the stipulated time frames is fatal. The application becomes a nullity. (See Matanhire v BP Shell Marketing SC 113-04, Dabengwa & Anor v ZEC & Ors SC 32-16). In Hattingh v Pienaar 1977 (2) SA 182 (O) at 183, KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule. In casu, condonation for non-compliance with the Rules and extension of time was not sought thus the applicant remains in breach of r 30 (c).

The need to comply with the rules of court cannot be over emphasised especially where the rule is peremptory. Where strict compliance with Rules of court is required, litigants must so comply because anything less will potentially prejudice the other party. In Chikura & Anor v Al Sham’s Global BVI Limited SC 17/2017 ZIYAMBI JA had occasion to remark that:

“The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).”

In casu, it is clear that the applicant failed to comply with r 30 (c). It has not been condoned for its non-compliance with the Rules of court hence this application is a legal nullity. Against the backdrop of the foregoing, it becomes unnecessary for me to deal with the merits of this application.

In the result, the matter is struck off the roll with costs.

Gill, Goldonton & Gerrans Legal Practitioners for the applicant

Kantor & Immerman Legal Practitioners for the respondent