After
reading papers filed of record and hearing counsel in this matter, I
dismissed the application that was before me with costs and indicated
that the reasons for judgment would be available in due course. These
are they.
The
facts of this case can be summarised as follows:
The
applicant, Yunus Ahmed, was the Director of a company known as
Foldaway Investments (Private) Limited. The respondent, Docking
Station Safaris (Private) Limited t/a CC Sales is a company duly
registered in accordance with the laws of Zimbabwe.
The
respondent and Foldaway Investments (Private) Limited used to conduct
business together, and, during the course of doing business, Foldaway
Investments (Private) Limited fell into debt with the respondent.
This
caused the respondent to institute legal proceedings against it for
the recovery of the debt. The respondent was successful against
Foldaway Investments (Private) Limited and it obtained an order for
the recovery of the debt. The respondent then instituted proceedings
against the applicant imploring the court a quo to make an order
declaring that the applicant be jointly and severally liable with
Foldaway Investments (Private) Limited for all the debts of Foldaway
Investments (Private) Limited to the respondent.
The
dispute went for trial and the court a quo held that the applicant
should rightly be found jointly
liable with Foldaway Investments (Private) Limited for all the debts
it owed the respondent.
On
19 July 2017, the applicant noted an appeal against the judgement of
the court a quo. The applicant, however, did not serve the Notice of
Appeal on the Registrar of the High Court, as stipulated by Rule
29(2) of the Supreme Court Rules, 1964 thereby necessitating the
present application.
Before
I delve into the merits of this application, I find it pertinent to
highlight the irregularities that accompany this application.
On
the face of the application it is indicated that the application is
for condonation and extension of time in terms of Rule 31 of the
Rules of the Supreme Court, 1964. The contents of the founding
affidavit tell a different story. The application is said to be an
application for condonation and re-instatement of appeal arising from
the fact that the applicant did not serve the Notice of Appeal on the
Registrar of the High Court.
The
applicant seems to be confused as to the nature of the application
that he is supposed to bring before this Court.
It
is trite that an application stands or falls on its founding
affidavit. See Fuyana v Moyo SC54-06; Muchini v Adams & Ors
SC47-13; and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd &
Ors SC80-06.
In
cases where the headings on the cover of an application tell one
thing and the contents of the founding affidavits tell another, the
nature of the application that is before the court is determined by
the contents of the founding affidavit and not the headings on the
cover of the application. This was aptly captured by GOWORA JA in
Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union
SC20-16 as followings:
“The
issue that begs an answer is how the court a quo should have dealt
with the matter given the apparent confusion that had been created by
the appellant in settling its papers. An application must be disposed
of on the basis of the founding affidavit…,.”…,.
In
casu, it is averred, twice, in the applicant`s founding affidavit
that the application is for condonation for non-compliance with the
rules and re-instatement of appeal. The contents of the founding
affidavit thus take precedence over what is written on the headings
of the application. It is, however, expected, generally, that the
headings of an application should marry with the contents of the
founding affidavit.
This
application is thus one for condonation and reinstatement of appeal
as averred in the founding affidavit.
An
application for condonation and reinstatement of appeal is not the
proper application to make given the circumstances of this case.
The
applicant failed to comply with Rule 29(2) of the Supreme Court
Rules, 1964, a peremptory rule of the court which reads:
“The
notice of appeal shall be served on the registrar, the registrar of
the High Court, and the respondent.”
Failure
to comply with a peremptory rule therefore renders the Notice of
Appeal fatally defective.
In
Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd &
Anor SC43-13, GARWE JA stated as follows:
“The
position is now well established that a Notice of Appeal must comply
with the mandatory provisions of the Rules and that if it does not,
it is a nullity and cannot be condoned or amended. See Jensen v
Acavalos 1993 (1) ZLR 216 (S).”
The
Notice of Appeal that the applicant seeks of reinstatement is
therefore a nullity. A nullity cannot be reinstated, it is dead at
law and hence it cannot be resuscitated by means of an application
for reinstatement of an appeal. This point was clearly made in
Bindura Municipality v Mugogo SC32-15 where GUVAVA JA stated that:
“It
however seems to me that the applicant has filed a wrong application.
Where a matter has been struck off the roll because it has failed to
comply with the rules of court, one cannot simply apply for
reinstatement of the appeal as such an appeal is a nullity. This
position has been stated in a number of decisions of this Court.”
In
view of the above, it is clear that the applicant has approached this
court with a wrong application. The circumstances of this case
require the applicant to make an application for condonation for
non-compliance with the rules and extension of time within which to
file and serve a Notice of Appeal. This, the applicant failed to do.
The
net effect of bringing a wrong application before the court is that
there will be virtually nothing placed before it,
and, to that end, this application cannot stand.
Apart
from the above irregularity, the applicant`s draft order is in
shambles. It reads as follows:
“WHEREUPON,
after perusing documents filed of record;-
IT
IS ORDERED AS FOLLOWS:
1.
The Application for condonation for non-compliance with the rules of
the Supreme Court and is hereby granted.(sic).
2.
The application for extension of time with which (sic) to file and
serve a notice of appeal in terms of the rules and is hereby granted.
3.
The Applicant be and is hereby ordered to serve the Registrar of the
Labour Court (sic) the notice of appeal within 7 days of this order.
4.
No order as to costs.”…,.
This
draft order is incompetent in various ways. Apart from the several
typographical errors, paragraph 1 does not state the Rule that the
applicant failed to comply with, which the court should condone.
Secondly, having established that this is an application for
condonation and reinstatement of an appeal, paragraph 2 does not pray
for the re-instatement of an appeal. Lastly, the applicant, in
paragraph 3, prays that the Notice of Appeal be served on the
Registrar of the Labour Court when it is common cause that he seeks
to appeal against a decision of the High Court.
The
sum effect of these errors render the draft order meaningless and
inevitably fatally defective.
Such
tardiness is least expected in court process that is drafted by a
legal practitioner. Legal practitioners must be meticulous in
drafting pleadings and process. Shoddily drawn process confuse the
court and the other party. The need to be meticulous is most
important when drafting the relief sought. If the relief sought is
imprecise and defective, the court cannot grant it.
It
also goes without saying that, as a general rule, where the Rules of
Court or a Practice Direction prescribe a form to be followed when
drafting court process, legal practitioners are enjoined to make use
of that form.
In
casu, Practice Direction 1 of 2017 gives the form to be followed when
crafting a draft order for an application for reinstatement of appeal
but the applicant simply neglected and failed to follow it.
The
purpose of forms in Rules of Court and Practice Directions is to
guide litigants as to the format of pleadings and process for the
proper running of the courts. The applicant has, however, neglected
the use of the appropriate Practice Direction to his own peril. In
this regard, therefore, the applicant has not placed anything before
the court to grant.
In
view of these irregularities, I found it proper to dismiss the
application instead of striking it off the roll.
In
Mudyavanhu v Saruchera SC75-17 GWAUNZA JA…, stated that;
“It
is noted that a number of matters have been struck off the roll by
this Court on the ground that the relief sought was not exact in
nature and that, as a result, the related notice of appeal was
incurably defective. See Ndlovu & Anor v Ndlovu & Anor
(supra). However, in this case, the court found that the appeal was
not only incurably defective but wrong and bad in law. The appeal
could therefore not properly be struck off the roll because the
appellant had no avenue, legally or procedurally, to follow in case
he was inclined to bring the same appeal before this Court.”…,.
The
grave irregularities that accompany this application warrant a
dismissal. The applicant`s draft order is fatally defective and the
application, as a whole, is wrong and bad in law. This application
can only be dismissed.
There
being no reason to depart from the general rule that costs follow the
result, the general rule shall prevail.
It
is accordingly ordered that:
The
application be and is hereby dismissed with costs.
