After hearing argument on the preliminary objections raised
by the respondent we reserved our judgment. The objections raised the issue
whether the notice of appeal complied with Rule 29(1)(d) as read with Rule
31 of the Rules of this Court.
The notice of appeal was filed on 17 June, 2016. It spanned 11 pages of which 6 pages
comprised of 18 grounds of appeal. The judgment appealed against consists of 11
pages.
Upon receipt of the appellants' heads of argument filed on
16 September 2016, the respondent filed and served its heads of argument
on 23 September 2016. It raised the point, in limine, that the appeal was
fatally defective for non-compliance with Rule 29(1)(d) and Rule 32(1) which,
read together, require grounds of appeal to be concise. It alleged that the
grounds of appeal are anything but concise but instead are “unnecessarily long,
incoherent and unnecessary prolix.”
It was prayed that the appeal be struck off the roll with
costs.
On the 10 November 2016, the respondent filed a notice of
objection in terms of Rule 41 of the Supreme Court Rules. In this notice, the
appellants were advised of the respondent's intention to 'take a preliminary
objection relating to the validity of the notice of appeal.'
The notice was directed to the Registrar and to the
appellants' legal practitioners.
On the 14 November 2016, the eve of the hearing of the
appeal, the appellants filed supplementary heads of argument in response to the
respondent's objection. In these heads, they alleged that the objection was
frivolous and vexatious, denied that the grounds were not clearly and concisely
framed but conceded they were multiple 'because of the nature of the judgment
of the court below.'
They charged the respondent with adopting the wrong
procedure by filing a notice instead of proceeding by way of court application.
They alleged that prejudice was caused to them because of the procedure adopted
by the respondent. Procedure by court application, they contended, would have
required the respondent to specify the offending grounds and the manner in
which it is alleged they infringed the Rules. The appellants would, in the
event of the adoption of that procedure, have been given sufficient time to
prepare a response in their heads of argument. They submitted that the
respondent was not embarrassed by, nor did it point to any ambiguity in, the
grounds of appeal. Consequently, the objection amounted to a classical abuse of
the procedure on preliminary objections, was devoid of merit, and ought to be
dismissed with costs on the punitive scale of legal practitioner and client.
In argument presented before us, counsel for the appellants
remained adamant that the grounds of appeal, though multiple, were clear and
concise. He submitted that even if they were inelegantly phrased, which was not
conceded, that fact did not render them a nullity.
Whether the grounds of
appeal comply with the Rules
The relevant provisions of Rule 29 and Rule 32 are set out
below;
“29.
Entry of appeal
(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 -
(a) The
date on which, and the court by which, the judgment appealed against was given;
(b) If
leave to appeal was granted, the date of such grant;
(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)…,.
(f)…,.
32. Grounds of appeal
(1) The grounds of appeal shall be set forth concisely and
in separate numbered paragraphs.”…,.
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).
It is not for the Court to sift through numerous grounds of
appeal in search of a possible valid ground; or to page through several pages
of 'grounds of appeal' in order to determine the real issues for determination
by the Court. The real issues for determination should be immediately
ascertainable on perusal of the grounds of appeal.
That is not so in the instant matter.
The grounds of appeal are multiple, attack every line of
reasoning of the learned judge, and do not clearly and concisely define the
issues which are to be determined by this Court.
In Sonyongo v Minister of Law and Order 1996 (4) SA 384,
LEACH J was dealing with an application for leave to appeal in terms of the Rule
49(1)(b) of the Uniform Rules of Court of South Africa. That Rule required the
grounds of appeal to be set out in the application. The learned Judge, at p385E
- 386A of his judgment, said the following:
“I am not aware of any judgment dealing specifically with
grounds of appeal as envisaged by Rule 49(1)(b); however, Rule 49(3) is couched in
similar terms and also requires the filing of a notice of appeal which shall
specify 'the grounds upon which the appeal is founded.' In regard to that
subrule, it is now well established that the provisions thereof are peremptory
and that the grounds of appeal are required, inter alia, to give the respondent an opportunity of abandoning the judgment;
to inform the respondent of the case he has to meet; and to notify the Court of
the points to be raised. Accordingly, insofar as Rule 49(3) is concerned, it has been held that grounds of appeal are
bad if they are so widely expressed that it leaves the appellant free to
canvass every finding of fact and every ruling of the law made by the court a
quo, or if they specify the findings
of fact or rulings of law appealed against so vaguely as to be of no value
either to the Court or to the respondent, or if they, in general, fail to
specify clearly and in unambiguous terms exactly what case the respondent must
be prepared to meet – see, for example, Harvey v Brown 1964 (3) SA 381 (E) at 383; Kilian v Geregsbode, Uitenhange 1980 (1) SA 808 (A) at 815 and ERASMUS,
Superior Court Practice B1-356-357
and the various authorities there cited.
It seems to me that, by a parity of reasoning, the grounds
of appeal required under Rule 49(1)(b) must similarly be clearly and succinctly
set out in clear and unambiguous terms so as to enable the court, and the
respondent, to be fully and properly informed of the case which the applicant
seeks to make out and which the respondent is to meet in opposing the
application for leave to appeal. Just as Rule 49(3) is peremptory in that
regard, Rule 49(1)(b) must also be regarded as being peremptory. In my view, the lengthy and rambling notice
of appeal filed in casu falls
woefully short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice.
But that is not the point – the point is that the notice must clearly set out
the grounds and it is not for the Court to have to analyse a lengthy document
in an attempt to establish what grounds the applicant intended to rely upon but
did not clearly set out. On this basis alone the application seems to me to be
fatally defective and must be dismissed.”…,.
In my view, the emphasised portions of the above remarks,
with which I respectfully agree, are equally applicable in the present matter.
Great care should be taken in drafting a notice of appeal
to ensure that the grounds of appeal concisely and clearly set out the issues
to be determined by the appeal court and the respondent is properly informed of
the case he has to meet on appeal.
For the above reasons, I am constrained to agree with counsel
for the respondent that the notice of appeal does not comply with the Rules of
this Court and ought to be struck out….,.
Accordingly, it is ordered as follows:
1. The preliminary objection is upheld.
2. The appeal is struck off the roll with costs.
