This
is an application for leave to appeal against a decision of the High
Court in terms of Rule 30(c) of the Supreme Court Rules, 1964. After
hearing counsel and reading the papers filed of record, I ordered
that the application be struck off the roll and indicated that the
reasons would follow.
These
are they.
The
applicant is a company carrying on the business of manufacturing
alcoholic and non-alcoholic beverages in Zimbabwe. The respondent is
an administrative authority established in terms of the Revenue
Authority Act [Chapter
23:11]
and tasked, among others, with collection of revenue dues. The
applicant approached the High Court, under HC12009/16, on an urgent
basis seeking an interdict against the respondent. The sequence of
events which led the applicant to take this action can be summarised
as follows:
On
14 April 2016, the respondent confirmed a tax assessment, penalty and
interest against the applicant. These were communicated to the
applicant. The applicant objected to the assessment in terms of
section 62 of the Income Tax Act [Chapter
23:08].
The respondent did not accede to the objection, its position, on 9
May 2016, was that the assessed tax was due and payable. The
respondent wrote to the applicant reminding it of its obligation
despite its right of appeal to the Fiscal Court in terms of section
65 of the Income Tax Act. Under cover of a letter dated 21 November
2016, the respondent indicated its intention to institute recovery
measures if the penalty was not paid by 25
November
2016.
The
applicant, upon receipt of the letter dated 21 November 2016,
approached the High Court on 24 November 2016, on an urgent basis,
seeking an order interdicting the respondent from employing its
recovering measures pending the outcome of the appeal it had noted.
The court a
quo
found that the matter was not urgent and the application was struck
off the roll on 1
December
2016. The applicant was aggrieved by that decision and it filed an
application for leave to appeal against the decision in the court a
quo.
The application was dismissed on 8 March 2017. This necessitated the
filing of the present application. The applicant filed this
application on 7 April 2017.
This
application is being made in terms of Rule 30(c) of the Supreme Court
Rules, 1964. It reads thus:
“An
appellant shall
institute an appeal within the following times -
If
leave to appeal is necessary and has been refused, by the High Court,
by making application for leave to appeal within
ten days of the refusal of leave to appeal.”…,.
Rule
30(c) allows an applicant to whom leave to appeal is denied by the
High Court to seek leave from this Honourable Court. The only caveat
to this rule is that the application for leave to appeal must be
filed within 10 days of the refusal of leave to appeal.
In
casu,
the applicant was denied leave to appeal on 8 March 2017. The
applicant filed this application on 7 April 2017 - 12 days out of
time. The applicant`s last day of filing this application was 22
March 2017. The applicant, being out of time, did not seek
condonation for non-compliance with the Rules and extension of time
within which to file an application for leave to appeal against the
decision of the High Court.
Rule
30(c) is
mandatory and must be complied with. Failure to file an application
for leave to appeal within the stipulated time frames is
fatal. The application becomes a nullity. See Matanhire
v BP Shell Marketing
SC113-04; Dabengwa
& Anor v ZEC & Ors
SC32-16. In Hattingh
v Pienaar
1977 (2) SA 182 (O)…, 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.
In
casu,
condonation for non-compliance with the Rules and extension of time
was not sought thus the applicant remains in breach of Rule 30(c).
The
need to comply with the rules of court cannot be over emphasised
especially where the rule is peremptory. Where strict compliance with
Rules of Court is required, litigants must so comply because anything
less will potentially prejudice the other party. In
Chikura
& Anor v Al Sham's Global BVI Limited
SC17-17, ZIYAMBI JA had occasion to remark that:
“The
Rules are made for the proper running of the Court. Failure to comply
with its mandatory provisions will render an appeal a nullity. See
Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR
147 (S).”
In
casu,
it
is clear that the applicant failed to comply with Rule 30(c). It has
not been condoned for its non-compliance with the Rules of Court
hence this application is a legal nullity. Against the backdrop of
the foregoing, it becomes unnecessary for me to deal
with the merits of this application.
In
the result, the matter is struck off the roll with costs.
