This
is a chamber application for condonation and extension of time within
which to note an appeal made in terms of Rule 31 of the Supreme Court
Rules, 1964. At the close of arguments I granted the application by
consent….,.
BACKGROUND
FACTS
The
brief background of this application may be summarised as follows:
The
applicant is an international business company incorporated in the
British Virgin Islands in Guernsey in the Channel Islands but is not
permitted to trade in that jurisdiction. The respondent is a body
corporate, responsible for the collection, amongst other taxes, of
Value Added Tax (VAT) in Zimbabwe.
The
respondent sued the applicant in the High Court alleging non-payment
of VAT by the applicant. The facts leading to the dispute are that on
1 October 2007, the Governor of the Reserve Bank of Zimbabwe (RBZ)
unveiled the Basic Commodities Supply Side Intervention (BACOSSI), a
facility designed to end chronic shortages of basic commodities in
Zimbabwe. The applicant and Reserve Bank of Zimbabwe (RBZ) concluded
an agreement in which the applicant supplied basic commodities to the
RBZ. The respondent conducted a tax investigation of the purchases,
in foreign currency, made by the Reserve Bank of Zimbabwe (RBZ)
between May 2006 and September 2008. It is alleged that during the
course of this period the applicant was not remitting the requisite
Value Added Tax (VAT) to the respondent.
The
applicant unsuccessfully defended the respondent's suit resulting
in a judgment being granted in favour of the respondent. Aggrieved by
this outcome, the applicant noted an appeal to this court.
In
compliance with Rule 30 of the Supreme Court Rules, 1964 the
applicant filed its notice of appeal in this Court on 11 November
2015 within the stipulated 15 day period. The appeal went through the
usual processes set out in the Rules. Heads of Arguments were filed
by both parties upon which they awaited the set down date from the
Registrar of this Court.
On
8 August 2017, the parties were invited by the Honourable Chief
Justice to attend in his chambers concerning the Notice of Appeal.
Following a discussion, it was conceded by the applicant that the
notice of appeal was defective in two respects. Firstly, the preamble
to the Notice
of Appeal
did not state whether the appeal was directed against the whole or
part of the judgment, and, secondly, the relief sought did not comply
with the Rules. As a result of the defects, the applicant withdrew
the appeal.
On
31 August 2017, the applicant filed an application for condonation
and extension of time within which to note an appeal. The application
was granted by ZIYAMBI AJA on 19 September 2017. In granting
condonation the court ordered as follows:
“The
Notice of Appeal filed of record be and is hereby deemed to have been
filed as of the date of this order in terms of Rule 31(8) of the
Supreme Court Rules (1964).”
Following
the grant of the above order, the applicant awaited the call for the
next step by the Registrar.
On
21 March 2018, after having waited in vain for close to six months,
the applicant's legal practitioner decided to follow up the matter
with the Registrar. It was only then that he was advised that he
should have filed his notice of appeal and this therefore meant there
was no appeal before the court. The applicant thereafter filed the
present application.
APPLICANT'S
SUBMISSIONS
Counsel
for the applicant submitted that he understood the above order to
mean that the Notice of Appeal had been deemed to have been filed
therefore there was no need for him to file or serve another copy of
the notice of appeal. He was of the view that after the conclusion of
the matter before ZIYAMBI AJA the Registrar was going to write to him
requesting the filing of heads of argument since the notice of appeal
filed in the application had been deemed
to have been filed.
He
was thus surprised when he was advised that the appeal was, again,
out of time considering that the order was given on 19 September
2017.
RESPONDENT'S
SUBMISSIONS
The
respondent initially opposed the application on the basis that the
delay in seeking condonation and extension of time within which to
file the appeal was inordinate. However, during the hearing the
respondent conceded that the phrasing of the order has caused
considerable problems to litigants and there was need for the order
to be interpreted.
In
interpreting the order, I am of the view that it is also necessary to
set out the procedure which ought to obtain once such an order has
been granted.
INTERPRETATION
OF THE ORDER
The
order is couched with a few variations in accordance with Rule 31(8)
of the Supreme Court Rules, 1964 as read together with Practice
Direction No.1 of 2017 which was issued by the Chief Justice. Rule
31(8) reads as follows:
“If
leave to appeal or leave to appeal out of time is granted, the appeal
shall be deemed to have been instituted in accordance with the notice
of appeal filed in the application on the date on which it was
granted.”
Form
3 to the Practice Direction which deals with Chamber Applications For
Condonation And Extension Of Time states in the relevant part as
follows:
“1….,.
2….,.
3.
The notice of appeal shall be deemed to have been filed on the date
of this order (or on such date as may be fixed by the Judge).”
The
order which was granted by the Court stated as follows:
“The
Notice of Appeal filed of record be and is hereby deemed to have been
filed as of the date of this order in terms of Rule 31(8) of the
Supreme Court Rules (1964).”
As
can be noted, the order that was granted incorporates the wording in
Rule 31(8) and Form 3 of the Practice Direction No.1/2017.
As
alluded to earlier, this order has caused a lot of problems to the
majority of legal practitioners and litigants alike who have
interpreted the word “deemed” in the above order to mean that
once the court has made an order the Notice of Appeal filed of record
has been filed with the court. As the order is made primarily from
Rule 31(8) it is necessary to begin by interpreting this Rule.
A
proper reading of Rule 31(8), in my view, merely states that the
Notice of Appeal that has been filed by the applicant is the notice
that will have been accepted by the court in granting the extension
of time. The applicant cannot, thereafter, file a different Notice of
Appeal to the one that was filed in the application for condonation
and extension of time to appeal.
It
also seems to me that the assumption made by legal practitioners and
litigants is legally wrong as it seeks to read the Rules in
isolation. It completely disregards the Rules that state that service
has to be effected on the Registrar of this Court, Registrar of the
court a
quo
as well as the respondent(s). This is all prescribed in Rule 29(2).
In
terms of procedure, it also overlooks the fact that in granting an
application for condonation and extension of time with which to
appeal there is no record of proceedings which is being appealed
against and that no specific case number has been accorded to the
intended appeal.
In
my view, therefore, when the court makes an order such as the one in
question, it simply means that the “draft” Notice of Appeal,
which must be filed together with the chamber application for
condonation and extension of time to note an appeal, has been
accepted by the court.
In
my view, it follows that the applicant must thereafter file the
Notice of Appeal within the prescribed period in terms of the Rules.
PROCEDURE
AFTER THE GRANTING OF THE ORDER
It
is also necessary, for the sake of completeness, to mention that the
acceptance of the notice of appeal does not do away with the appeal
process - it actually marks its genesis.
The
granting of an application for condonation and extension of time
means that one has been granted an indulgence by the court to do that
which they ought to have done in the first place. Under the
circumstances, there is no pending appeal before the court. In other
words, it means that soon after the issuance of the order the
applicant's legal practitioner ought to revert back to the initial
process of noting an appeal.
The
process begins with the noting of an appeal to this Court. It is at
this stage that the appellant is issued with a case number. In terms
of Rule 30(a), where leave is not necessary, an appellant has fifteen
days within which to file and serve the notice of appeal. This same
15 day rule applies with equal force where an applicant has been
condoned and granted extension of time within which to note an appeal
- unless a shorter period is ordered by the judge.
In
casu,
the applicant had 15 days from the date the order was made within
which to file its Notice of Appeal under a new and separate case
number.
Thereafter,
the applicant is mandated to comply with the provisions of Rule 29(2)
which is to the effect that the Notice of Appeal shall be served on
the Registrar of this Court, the Registrar of the High Court and the
respondent. It automatically follows that once the appeal has been
noted and served on the relevant parties, Rule 34 comes into effect.
It mandates that the requisite fees be paid to ensure the preparation
of the record. Thereafter, in terms of Rule 43, the parties may be
called upon to file their heads of arguments and the appeal is
finally set down.
In
simple terms, the effect of the above order is, since condonation and
extension of time has been granted, the applicant has been granted
the indulgence to file his appeal, and, in doing so, the prescribed
provisions in the Rules apply.
It
is imperative to note that the Notice of Appeal filed in the
application is merely a draft that sought approval from the court and
it forms part of the chamber application record. It is not a
stand-alone document. Therefore, once an order is given pertaining to
the chamber application that file is closed and the matter is deemed
to have been completed. The contents therein cannot be tempered with.
It also does not form part of the record which is being appealed
against. In the event that the above procedure is not complied with,
the Appeal record will not have a Notice of Appeal as part of its
papers.
DISPOSITION
The
failure to comprehend the import of this order has been a major cause
for concern for a long time. It has completely defeated the concept
of bringing finality to ligation as applications for condonation have
kept coming back concerning the same case because they will not have
complied with the Rules.
It
is for this reason that I have sought to interpret the Rule, the
meaning of the order, and to set out the procedure that must be
followed after the order has been granted.
Following
the hearing of this application, I made the following order by
consent:
“1.
The application for condonation of non-compliance with Rule 30 of the
Supreme Court Rules, 1964, be and is hereby granted.
2.
The application in terms of Rule 31 of the Supreme Court Rules, 1964
for extension of time within which to appeal be and is hereby
granted.
3.
The Notice of Appeal filed of record be and is hereby deemed to have
been filed as of the date of this order in terms of Rule 31(8) of the
Supreme Court Rules, 1964.
4.
There shall be no order as to costs.”
