MALABA
DCJ: The
preliminary question raised is whether the document filed as the
notice appeal complies with r 29 of the Supreme Court Rules. Rule 29
requires that a notice of appeal shall state whether the appeal is
against the whole or part of the judgment. The rule 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. The reason is that there
will be nothing to amend.
In
this case, the document states that the appeal is “against part of
the judgment and the whole order”. Mr Mafukidze
concedes that the document as it stands does not comply with the
requirements of r 29. The court agrees with Mr Kanengoni
that once the defect is conceded the purported notice of appeal is
fatally defective. On the authorities of this Court, the purported
notice of appeal cannot be amended.
The
only remedy available is an order striking the matter off the roll.
The
matter is struck off the roll with no order as to costs.
GOWORA
JA: I agree
MAVANGIRA
JA: I agree
Zimbabwe
Lawyers for Human Rights,
applicants' legal practitioners
Nyika
Kanengoni & Partners,
1st,
2nd
& 3rd
respondents' legal practitioners
