UCHENA
JA:
The appellant is a Zimbabwean who resides in South Africa. He is a
former director of Rodstreet Trading (Private) Limited (“Rodstreet”),
a Company registered in terms of the laws of Zimbabwe. The respondent
is a company registered in the British Virgin Islands but operating
from Dubai though engaging in financial transactions in Zimbabwe.
Factual
background
The
common cause facts on which the dispute arose are as follows:
On
22 August 2011, Rodstreet drew and issued a Bankers Acceptance
hereinafter called “the BA” in the sum of
US$117 335.91
in favour of Interfin Bank. Interfin Bank accepted the BA. The BA's
due date was 21 November 2011, that is, 91 days after sight.
Interfin
Bank subsequently sold the BA to the respondent on a buyback basis.
By letter dated 7 March 2012, Interfin Bank advised Rodstreet that it
had sold the BA to the respondent on a buyback basis but the
respondent was demanding immediate payment of the BA. The respondent
demanded payment of the BA from both Interfin Bank and Rodstreet.
They both failed to pay. The respondent issued a letter of demand to
Rodstreet demanding payment in the sum of US$117 335.91. Rodstreet
was not able to make any payment.
On
27 April 2012 the respondent issued summons against Rodstreet in the
High Court under case No HC 4556/12. On 18 June 2012 a
default judgment was granted against Rodstreet. The respondent
instructed the Deputy Sheriff to proceed to Rodstreet's place of
business to execute a writ issued in terms of the order granted on 18
June 2012. On 3 August 2012 the Deputy Sheriff filed a
return indicating that Rodstreet was no longer operating from its
registered premises.
The
respondent applied to the court a
quo
for an order in terms of s 318 of the Companies Act [Chapter
24:05]
declaring the appellant personally liable to pay respondent the sum
of US$ 117 335.91, plus interest at the rate of 30 per cent per annum
from 21 November 2011 to the date of full payment plus costs of
suit.
The
respondent sought the order against the appellant in his capacity as
a director of Rodstreet. It alleged that at all material times, the
appellant knew or should have known that Rodstreet would not be able
to pay the amounts owed in terms of the BA which it issued. The
respondent argued that the appellant, being a director of the
company, negligently and/or fraudulently misrepresented to Interfin
Bank that Rodstreet would liquidate the amount owed on the Bankers
Acceptance on its maturity date.
The
respondent submitted that, due to his gross negligence and reckless
trading, the appellant must be held personally liable in terms of s
318 of the Companies Act for monies owed by Rodstreet to the
respondent. In the respondent's view, the appellant owed a duty of
care to all parties which conducted business with Rodstreet including
the respondent to ensure Rodstreet would be able to meet its
financial obligations.
The
appellant opposed the respondent's application in the court a
quo
arguing that he was no longer a director of Rodstreet having resigned
from its board on 3 November 2011 when he sold his
shareholding in the company. He further stated that the BA, which
forms the main issue in these proceedings, was issued entirely and
signed by his two co-directors Mr Herbert Rinashe and Phillip
Jonasi without his knowledge and that to the best of his knowledge no
board resolution was ever made in his presence to issue the BA.
The
court a
quo
found the appellant personally liable for the amount owed to the
respondent by Rodstreet, holding that the directors of Rodstreet
including the appellant had acted recklessly, negligently if not
fraudulently, in drawing up the BA and accepting money despite their
knowledge of the company's precarious financial position.
Aggrieved
by the court a
quo's
decision, the appellant appealed to this court. He filed a 'notice
of appeal' against which the respondent raised preliminary issues.
The respondent filed a notice of objection in terms of r 41 of the
Supreme Court Rules, RGN 380 of 1964, objecting to the appellant's
notice of appeal on the basis that it was fatally defective.
On
the date of hearing, we decided that the parties address us on the
preliminary issues raised by the respondent as well as on the merits
of the matter.
The
preliminary issues
Mr
Uriri
for the respondent contended that the document which was filed by the
appellant as its Notice of Appeal does not comply with the Rules of
this Court, particularly rr 29 (1) (a), (d) and (e), and 32
(1).
Rule
29 of the Supreme Court Rules provides as follows;
“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)
the
exact nature of the relief which is sought;
(f)
the address for service of the appellant or his attorney.”
(emphasis added)
It
is clear that r 29 (1) (a) to (f) provides the mandatory attributes
of a compliant Notice of Appeal. A diligent legal practitioner is
expected to use it as a check list in formulating a compliant Notice
of Appeal. It clearly and succinctly lays out what must be stated in
a notice of appeal.
The
use of the words “which shall state” signifies the mandatory
nature of r 29 (1). It means if what the rule says must be
stated is not stated the notice of appeal will be fatally defective.
In
Freezewell
Refrigeration Services (Private) Limited v Bard Real Estate (Private)
Limited SC
61-03, this Court in explaining the effect of the mandatory
provisions of r 29 (1), quoted the case of
Talbert
v Yeoman Products (Private) Limited
SC-111-99 where MUCHECHETERE JA held that a notice of appeal
which does not comply with the provisions of r 29(1) was null
and void.
Relying
on the mandatory nature of rr 29(1) (a) (d) and (e) and 32 (1),
referred to above, Mr Uriri
for the respondent submitted that the appellant's notice of appeal
was fatally defective, in three respects.
Mr
Uriri
submitted that the preamble incorrectly stated the court which handed
down the judgment appealed against. The preamble reads;
“TAKE
NOTICE THAT the appellant hereby appeals against the
whole judgment by the Honourable Mr Justice TAGU of the High Court
of Harare in Case Number HC 4556/12 which was handed down on 22 June
2016.” (emphasis added)
He
submitted that the appellant purports to appeal against the judgment
of TAGU J of the High Court Harare. TAGU J is a judge and
not a court. Rule 29 (1)(a) requires the appellant to state in his
notice of appeal, the court by which the judgment appealed against
was given. Therefore the appellant ought to have stated that he was
appealing against the judgment of the High Court of Zimbabwe.
Mr
Matinenga
for the appellant submitted that r 29 (1) (a) requires an appellant
to state the court whose judgment is appealed against. He
submitted that the appellant stated that he was appealing against the
judgment by TAGU J of the High Court. He submitted that in spite of
the mentioning of the judge the High Court was identified as the
court against whose judgment the appeal was noted.
There
is a distinction between a “court” and a “judge”. Section 43
(1) of the High Court Act [Chapter
7.06]
provides as follows:
“(1)
Subject to this section, an appeal in any civil case shall lie to the
Supreme Court from any judgment of the High Court, whether in the
exercise of its original or its appellate jurisdiction.”
It
is therefore clear that an appeal from the High Court should be
against a judgment of the High Court. Order 1 r 3 of the High Court
Rules 1971 defines the words “court” and “judge” as follows:
“court”
means the general division of the High Court;”
“judge”
means a judge of the court, sitting otherwise than in open court;”
The
word “judge” only applies when a judge is not sitting in open
court. It only applies to a judge sitting in chambers.
Rule
29 (1) (a) requires an applicant to state “the date on which and
the court by which, the judgment appealed against; was given. It
specifies the court not the judge. Rule 29 (1) also specifies
the format in which the appeal should be noted. It states:
“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)---.”
It
is therefore mandatory in respect of the format and what must be
stated. Practice Direction No 1 of 2017 though issued after the
hearing of this matter requires an appellant to state the court
against whose judgment the appeal is noted. It is informed by s 43
(1) of the High Court Act, and the definitions of “court” and
“judge” by the High Court Rules.
I
therefore agree with Mr Uriri
that the appellant's notice of appeal does not comply with r 29 (1)
(a).
Mr
Uriri
for the respondent also submitted that the relief sought by the
appellant is fatally defective, because the nature of the relief
sought is not exact. It reads as follows:
“WHEREFORE
the Appellant prays that the judgment of the court a
quo
be set aside and substituted with the following:
'(a)
The appeal be and is hereby allowed with costs.
(b)
The judgment of the court a
quo
is set aside and substituted with the following;
The
application be and is hereby dismissed with costs on an attorney and
client scale.'”
He
submitted that the relief sought is fatally defective for two
reasons:
Rule
29(1) (e) is mandatory. It requires the appellant or his legal
practitioner to state the 'exact nature of the relief sought'. It
follows therefore that the exact nature of the relief sought must be
stated to inform the court about the nature of the order sought. The
appellant must not leave it to the court to think for him and draft
the order for him.
Mr
Uriri
submitted that the nature of the substituting order sought is not
exact, because the court a
quo
cannot grant parts (a) and (b) of the relief sought, which
respectively pray that the appeal be allowed and the judgment of the
court a
quo
be set aside and be substituted. The case before the court a
quo
was not an appeal but an application therefore the appellant ought to
have prayed in para (a) of his relief sought that the application a
quo be
granted. With regards para (b), it goes without saying that the
court a
quo
cannot set aside its own judgment.
The
exact nature of the relief sought referred to in r 29 (1) (e)
refers to the type or characteristics of the relief sought. This
means the relief sought must be of the type relevant to the dispute
between the parties. Therefore the nature of the relief sought was
wrongly framed and is incompetent as it refers to allowing an appeal
and setting aside of an order, remedies which could not have been
granted by the court a
quo in
a court application. The nature of the relief sought in substituted
orders (a) and (b) does not therefore comply with the requirements
of r 29 (1)(e).
Mr
Matinenga
conceded that the appellant's notice of appeal does not comply with
r 29(1) (e). He however submitted that the defective prayer could be
amended. I do not agree. A fatally defective prayer which does not
state the exact nature of the relief sought cannot be amended.
In
Dabengwa
& Anor v ZEC & Others
SC 32-16, this Court held that:
“The
rule (29) is mandatory in its terms and has been construed as such in
numerous decisions of this Court. The principle emanating from
these authorities is that a document which fails to comply with the
requirements of the rule is fatally defective and cannot be amended.”
In
Matanhire
v BP Shell Marketing
SC 113-04 this Court refused to amend a notice of appeal which was
fatally defective. At page 1 of the cyclostyled judgment MALABA JA
(as he then was) highlighting the importance of complying with the
Rules of court said:
“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.”
(emphasis
added)
The
authorities clearly state that r 29(1)(a) to (f) is mandatory and
must be complied with. A notice of appeal which does not comply with
this Rule is fatally defective and cannot be amended as there will be
nothing to amend. A nullity cannot be amended.
Mr
Uriri
further submitted that, the appellant's grounds of appeal are not
concise and are repetitive. They therefore do not comply with the
provisions of r 32(1) which require that grounds of appeal “be set
forth concisely”.
Rule
32(1) provides for Grounds of appeal as follows:
“(1)
The grounds of appeal shall
be set forth concisely and
in separate numbered paragraphs.
(2)
----.
(3)
Application to amend the grounds of appeal may be made before the
hearing of the appeal to a judge or at the hearing of the appeal.”
(emphasis added)
It
is apparent from a close reading of r 32(1), that it is mandatory.
Grounds of appeal must therefore comply with it.
Mr
Matinenga
agreed that some of the grounds of appeal are not concise and are
repetitive. He suggested that they could be amended.
Rule
32(3) provides for the amendment of grounds of appeal by way of a
chamber application or at the hearing of an appeal. Mr Matinenga
did not say which grounds of appeal should be amended and how they
could be amended. The court cannot amend unidentified grounds of
appeal. It is the duty of the appellant or his counsel to apply for
the amendment of specified grounds of appeal suggesting how they
should be amended
It
is however common cause that the notice of appeal in this case
contains some valid grounds of appeal. The court could have
considered them if the notice of appeal was not fatally defective in
other respects.
A
clear and concise ground of appeal in an otherwise valid notice of
appeal cannot be disregarded because there are other defective
grounds of appeal in the same notice of appeal. It should be
considered while the defective grounds of appeal should be struck
out.
It
is clear that the notice of appeal in this case does not comply with
rr 29(1(a)(e) and 32(1). It is fatally defective. It is therefore not
necessary to deal
with the merits of a fatally defective notice of appeal.
In
the result, the matter is struck off the roll with costs.
GARWE
JA: I
agree
MAVANGIRA
JA: I
agree
Moyo
& Jera,
appellant's legal practitioners
Dube,
Manikai & Hwacha,
respondent's legal practitioners
