Before
GARWE JA:
In Chambers.
In
this application, the applicants seek an order declaring the Notice
of Appeal filed by the respondent with the Registrar of the Supreme
Court to be null and void.
The
facts giving rise to this application are common cause.
On
29 September 2008 the applicants filed a court application in the
High Court. The respondent in this matter was also the respondent in
that matter. The application was heard by the High Court on 21
January 2009 and judgment delivered the following day i.e. 22 January
2009. On 17 February 2009, well outside the fifteen day period within
which an appeal can be noted, the applicants filed with the Registrar
of the Supreme Court a Notice of Appeal. The Notice of Appeal did not
state whether the appeal was against the whole or part only of the
judgment appealed against.
The
applicants have now applied to me, in chambers, for an order
declaring the notice to be null and void. The respondent has in its
papers opposed the relief sought.
At
the hearing of this matter, in chambers, the respondent conceded that
the Notice of Appeal did not comply with the Rules of this Court and
was therefore null and void.
There
can be no doubt that the Notice of Appeal is null and void. Firstly,
as has been observed, it did not specify whether the whole or part
only of the judgment was being appealed against. Secondly, the Notice
of Appeal was filed out of time and no condonation for the late
filing of the Notice of Appeal or for an extension of time within
which to appeal had been sought and granted.
In
Jensen v Avavalos 1993 (1) ZLR 216 this court had occasion to
consider the effect of non-compliance with, inter alia, Rule 29(C) of
the Rules of this Court which require that a Notice of Appeal shall
state whether the whole or part only of the judgment is appealed
against. At p 220 of the judgment, KORSAH J remarked that:
“…
a
Notice of Appeal which does not comply with the rules is fatally
defective and invalid. That is to say, it is a nullity. It is not
only bad but incurably bad, and, unless the court is prepared to
grant an application for condonation of the defect and to allow a
proper Notice of Appeal to be filed, the appeal must be struck off
the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A)
at 574C-D.
In
Hattingh v Pienaar 1977 (2) SA 182 (O) 182 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.
With
this view I most respectfully agree; for if the notice of appeal is
incurably bad, then, to borrow the words of LORD DENNING in McFoy v
United Africa Co Ltd [1961]3 AllER 1169(PC) at 11721, 'every
proceeding which is founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay there. It will
collapse.'”
Clearly
therefore the Notice of Appeal filed with the Registrar is a nullity.
There is therefore no Notice of Appeal before the Supreme Court.
The
interesting point of law that now arises is whether in these
circumstances a Judge of this Court has the jurisdiction to declare
the Notice of Appeal null and void.
During
submissions, Mr Gama, for the applicants, indicated that the
Registrar of Deeds had intimated that unless an order to the contrary
was received, he would continue to regard the Notice of Appeal as
valid. For this reason the applicants have made this chamber
application seeking a declaratur that the Notice of Appeal is null
and void.
Whilst
the applicants may well be entitled to such a declaration, I am of
the view that the Supreme Court does not have the jurisdiction to
make such a declaration in the first instance.
In
terms of section 80 of the Constitution of Zimbabwe both the Supreme
Court and High Court shall have jurisdiction and powers as may be
conferred upon them by or in terms of the Constitution or any Act of
Parliament.
The
Supreme Court Act [Cap 7:13] has in sections 9 and 21 provided that
the Supreme Court shall have jurisdiction to hear and determine an
appeal in any criminal or civil case from the judgment of any court
or tribunal and that unless provision to the contrary is made in any
other enactment, the Supreme Court shall hear and determine and
exercise powers in respect of an appeal in accordance with the Act.
It
is clear from these provisions that the Supreme Court is a creature
of statute and that it derives its jurisdiction specifically from the
Supreme Court Act and other legislative provisions. In other words
although it is the highest court in the land, its powers are
regulated strictly by statute. It is not a Court of first instance.
It has no original jurisdiction but only appellate, since it was
created by statute purely as a Court of Appeal.
Nowhere
in the Supreme Court Act nor in the Rules of the Court is the Supreme
Court given jurisdiction to entertain, in the first instance, an
application for a declaratur.
Whilst
in terms of section 25 of the Supreme Court Act every Judge of the
Supreme Court shall have the same review power and authority as are
vested in the High Court to review proceedings, no person has the
right to institute any review in the first instance before the
Supreme Court.
The
High Court, however, is different from the Supreme Court in that it
has, in terms of the High Court Act [Cap 7:06] full original civil
and criminal jurisdiction over all persons and over all matters
within Zimbabwe subject only to limitations placed either by the Act
itself or by any other law.
In
terms of section 14 of the High Court Act, the High Court may inquire
into and determine any existing, future or contingent right or
obligation, including the granting of a declaratur.
In
terms of jurisdiction, the distinction between the Supreme Court and
the High Court may be summarized as follows. Except where
specifically empowered, the Supreme Court has no jurisdiction to hear
or determine any matter and may only exercise powers in respect of an
appeal in terms of the provisions of the Act and Rules of the Court.
The High Court, on the other hand, has the jurisdiction to hear all
matters except where limitations are imposed by law. In other words,
whilst the Supreme Court may do nothing that the law does not permit,
the High Court may do anything that the law does not forbid.
The
necessary corollary to the above is that a Judge of the Supreme Court
has no jurisdiction, in the first instance, to hear and determine an
application for a declaration of nullity in respect of an appeal that
is not before it. In respect of matters before it, the Supreme Court
does have inherent jurisdiction to make orders.
In
the result, therefore, whilst there may well be substance to the
application filed by the applicants, the application cannot succeed.
It has been filed in the wrong Court.
On
the question of costs, I am of the view that there be no order as to
costs. In the normal course of events the application would have
been dismissed with costs. However, the respondent opposed the
application on grounds that are wrong at law. The respondent only
formally conceded at the hearing of the application that the Notice
of Appeal was null and void and that therefore there was no appeal
pending before the Supreme Court. In the circumstances I consider
that the most appropriate order would be that there should be no
order as to costs.
In
the result, I make the following order -
1.
The application be and is hereby dismissed.
2.
There will be no order as to costs.
Madzivanzira,
Gama & Associates, applicant's legal practitioner
