BERE J: In this urgent chamber application the
applicant seeks an interim relief to interdict the first respondent from
continuing with execution pending the finalization of the instant case.
The brief
background to this matter can be summarised as follows:
After hearing
arguments in case number HH 102-12 my brother MATHONSI J in a thoroughly
reasoned judgment granted summary judgment in favour of the now first
respondent in this matter on 14 March 2012. Following upon the pronouncement of
the judgment in question and dissatisfied with the judgment in issue, the
applicant filed its notice of appeal in the Supreme Court of Zimbabwe on 6
February 2012. The filing of the appeal was done within the time stipulated by
the rules governing the appeal process. The notice of appeal was subsequently
served on the Registrar of the High Court.
Despite the
noting of the appeal in the Supreme Court the first respondent proceeded with
execution prompting the applicant to lodge the instant application.
In proceeding
with execution, the first respondent has raised a number of issues whose
cumulative effect the first respondent argues renders the filed notice of
appeal fatally defective to the extent that the appeal itself must be rendered
a nullity.
The first
argument raised by the first respondent as a preliminary point was that by
failing to serve the notice of appeal on the first respondent, the applicant
had not complied with the peremptory requirements of r 29 (2) of the Supreme
Court Rules which requires that once filed or noted the notice must be served inter alia on the respondent. The
applicant has not taken a definitive position with regards to the service or
non-service of the notice of appeal. For purposes of this judgment, and aided
by the submissions made by both counsels I have no hesitation in accepting it
as a fact that the notice of appeal filed in the Supreme Court on 6 February
2012 was indeed not served on the first respondent. I also accept it as
properly established by the first respondent that the failure to serve the
notice of appeal amounted to non-compliance with the peremptory requirements of
r 29 (2) of the Supreme Court rules, 1964.
Apart from the
alleged non-compliance with the Supreme Court rules, the first respondent has
attacked what he perceives to be the inadequacies of the Certificate of Urgency
and the founding affidavit by the applicant which the respondent argued should
be regarded as not having been properly placed before the court.
Counsel for the
respondent has also gone further to deal with what he perceives to be zero
prospects of success on the appeal itself. The first respondent is of the firm
view that the appeal itself is frivolous and vexatious as it has been noted
with mala fide intentions.
The applicant
argued that once it noted its appeal the first respondent was automatically
barred from proceeding with execution in the absence of a successful
application to execute pending the outcome of the appeal. It was also argued
that it was not the function of the High Court to deal with the alleged
shortcomings or defects in the appeal itself but that that was the province of
the Supreme Court itself.
In advancing its
position on the alleged non-compliance with the mandatory provisions of the
Supreme Court rules, the first respondent referred me to the case of Mohamed Nazir Ors
where their Lordship and two of their Ladyships dealt with a similar provision
like our r 29 (2) of the Supreme Court rules. In that case the court dealt with
the interpretation of their Order 2 Rules 4(1) and 2 which is worded in
virtually the same way as our r 29 (2) of the Supreme Court Rules. The
Chancellor in that case stated:
"There
is no doubt in my mind that the word "shall" in Order 2 Rules 4 (1) and (2) is
mandatory in relation to the service of a notice of appeal. The appellant
therefore was obliged to serve this notice of appeal upon all parties affected
by the appeal within seven days after filing the original notice. Not having
done so the appellant is accordingly in breach of r 4 (2). There is no specific
rule for applying to extend this period of time unlike a breach of Order 2 Rule
3 (3) which empowers a court in exceptional circumstances and for good and
substantial reasons to extend the time for filing a notice of appeal."
Further
reference by the first respondent's counsel was also made to the case of Charl De Kock and Wilton
Tobacco Estate Company
per BHUNU J where the learned Judge was of the firm view that the appeal whose
validity he had to deal with was an irregular and invalid one and could not suspend
execution until such time the defect in that appeal had been remedied. It is
significant that in that case the appeal had been filed out of time and no
condonation had been sought to regularise that defect.
In casu the appeal was filed in time and
served on the Registrar of the High Court. The only notable omission was
failure to serve that notice on the respondent.
It is doubtful
in my mind if it should be the function of this court to try and deal with the
merits or demerits of an appeal which for all intents and purposes is not
before it but intended for the Supreme Court.
I say so because
in terms of our Supreme Court Rules as currently framed the Supreme Court has a
wide discretion in dealing with the matter placed before it. For good and
sufficient cause shown the Supreme Court may decide to condone non-compliance
with its own Rules. See Section 4 of Supreme Court Rules. In this regard I find
support in the headnote of the case of Hubert
Davies Employees Trust (Pvt) Ltd
Ors v Croco Holdings (Pvt) Ltd
where it is stated:
"A
notice of appeal which does not comply with the requirements of r 29 of the
Supreme Court Rules 1964 is fatally defective. Unless the Court is prepared
to grant an application for an extension of time within which to comply with
the relevant rule and allow a proper notice of appeal to be filed, the
appeal must be struck off the roll with costs." (my emphasis)
It occurs to me
that the process of granting indulgence falls within the province of the
Supreme Court and not the High Court which at this stage is functus officio. The High Court cannot
sit as a court and start speculating on what the Supreme Court may or may not
do without taking the risk of abusing that Court in the appeal process itself.
In this regard I
am more inclined to follow the reasoning by the learned Judge GOWORA J( as she
then was) when she stated as follows:
"It
is also pertinent to note that the appeal is before the Supreme Court and it is
my view the Supreme Court which should state whether or not the appeal is null
and void for want of compliance with the rules. In the absence of such a
declaration it is not open to this court to find that the appeal is null and
void."
In conclusion, I
prefer the school of thought that in appeal matters we follow the basics, that
is, once an appeal is noted or filed it suspends execution. Our rules as they
stand provide a remedy in the event of the other party desiring to proceed with
execution despite the noting of an appeal.
Consequently,
the interim relief sought is granted as prayed for.
Venturas
& Samukange Legal Practitioners, applicant's
legal practitioners
Scanlen & Holderness, 1st
respondent's legal practitioners
