IN
CHAMBERS
GARWE
JA:
This
is an application for condonation for non-compliance with the Rules
of this Court and for an extension of time within which to file and
serve a notice of appeal in terms of the same Rules.
The
respondents oppose the application.
FACTUAL
BACKGROUND
The
first respondent is a medical aid society registered in terms of the
Medical Services Act, [Chapter 15:13]. The second respondent is said
to be the investment vehicle of the first applicant.
Both
respondents are managed by two separate boards of directors.
It
is common cause that the applicant was, in terms of his contract of
employment, the Chief Executive Officer of the first respondent. In a
judgment handed down by two judges of the Labour Court on 10 March
2017, two awards made in favour of the applicant were set aside and
in their place the court substituted an order dismissing the
applicant s claims before the arbitrator.
Dissatisfied,
the applicant appealed to this Court against that judgment on 1 March
The notice of appeal reflected that it had been filed pursuant to
Rule 29 of the now repealed Supreme Court Rules.
At
the hearing of the appeal, the matter was, by consent, struck off the
roll for the reason that the appeal should more properly have been
noted in terms of the then Supreme Court (Miscellaneous Appeals and
References) Rules,
This
was on 14 March.
Prior
to the above developments, in a practice directive issued as 3/13 by
the late former Chief Justice of Zimbabwe on 29 November 2013, the
following requirement was, inter alia, made applicable to all the
superior courts of Zimbabwe:
“Where
a matter has been struck off the roll for failure by a party to abide
by the Rules of the Court, the party will have thirty (30) days
within which to rectify the defect, failing which the matter will be
deemed to have been abandoned. Provided that a Judge may on
application and for good cause shown, reinstate the matter, on such
terms as he deems fit.”
So
far as I am aware, the practice directive together with a number of
others issued at about the same time were not discussed amongst
judges of this Court.
I
mention this at this stage because paragraph 5 of the practice
directive, which is captured above, has given rise to a major
difficulty in the interpretation of that paragraph.
The
conundrum faces not just the applicants whose matters are struck off
the roll but also the superior courts to this date. The extent of the
problem is aptly illustrated by the events that unfolded following
the striking off of the matter from the roll.
The
appeal, having been struck off the roll, on 14 March 2019, the
applicant was required, in terms of the practice directive, to
rectify the defect within the period of 30 days failing which the
matter would be deemed abandoned.
Taking
into account weekends and public holidays, the period of thirty (30)
days was to lapse on 30 April.
The
present application was only filed on 2 May 2019, one business day
late.
That
development formed the genesis of the applicant s difficulties in
trying to prosecute his appeal against the decision of the Labour
Court.
In
the application filed on 2 May 2019, the applicant prayed for
condonation and extension of time in which to appeal the decision of
the Labour Court. In his founding affidavit he explained the reasons
for the delay. As regards his prospects of success he attached a copy
of his heads of argument in the matter previously struck off the roll
and requested that his prospects of success be determined on the
basis of those heads.
In
their opposing papers, the respondents took two points in limine. One
of the two points was abandoned at the hearing of the application
before me. The preliminary point that remained related to the
propriety of the application for condonation and extension of the
time within which to note an appeal.
The
respondents averred that, in terms of paragraph 5 of the Practice
Directive, once the applicant failed to rectify, within 30 days, the
defects that had led to the striking off of his appeal, his matter
was deemed to have been abandoned. He could only apply for
reinstatement.
The
other submissions made by the respondents on the length of the delay
and the reasons thereof as well as the prospects of success are not
relevant to the issues that arise for determination in this
application.
In
his answering affidavit, the applicant also took the preliminary
point that the deponent to the opposing affidavit, who stated that he
was the chairperson of the board of directors of the first
respondent, was not authorised to represent both respondents as no
resolution to that effect had been attached.
The
applicant submitted that, in the absence of such authorisation, the
application was unopposed.
At
the hearing of the application, I considered it appropriate that I
hear the parties on the preliminary points that they had raised
before delving into the merits of the matter. The points in limine
raised by the parties had the potential to dispose of the application
in its entirety. Both parties filed written heads of argument in
support of the preliminary points taken.
APPLICANT'S
SUBMISSIONS
In
argument, the applicant submitted that paragraph 5 of the Practice
Directive is clearly an error because once a matter is struck off the
roll, the purported appeal is regarded as having never existed.
More
fundamentally, so the applicant argued, paragraph 5 of the Practice
Directive is meaningless. This is because once it is accepted that
there is no appeal before the court, there is therefore no defect to
correct.
And
if there is no matter before the court, nothing therefore can be
deemed to have been abandoned. For the same reason, there is no
matter to reinstate.
Further
the applicant submitted that the 30-day period is reckoned from a
non-event since the nullity arises merely by operation of law and the
court merely advises the parties of the fact of the nullity.
Once
a matter is struck off the roll, there is no time limit within which
to make an application for condonation and extension under Rule 43 of
the Supreme Court Rules, A litigant can, in terms of the Rule, apply
at any time, the length of the delay being one of the factors that
must be considered.
The
applicant submitted that paragraph 5 of the Practice Directive must
be expunged from the Practice Directive.
On
the point taken that the opposing affidavit is not properly before
the court, he submitted as follows.
Legal
entities such as the respondents have separate legal personae from
its members or officials. There is therefore need for a person who
purports to act on behalf of such a legal entity to produce proof of
authorisation. Otherwise, former directors challenging their
dismissal may continue to purport to represent the company.
RESPONDENTS
SUBMISSIONS
In
argument, the respondents submit that, it being common cause that the
applicant did not comply with the thirty (30) day requirement in
terms of the Practice Directive, his matter was deemed to have been
abandoned.
In
the circumstances, he should have applied for reinstatement of the
abandoned appeal and not condonation and extension of time in which
to appeal.
They
further submitted that it is not open to a litigant to adopt the
attitude that an extant Practice Directive is erroneous.
On
the preliminary point raised by the applicant that the deponent to
the respondents opposing affidavit had no authority to represent
those two entities, the respondents submitted that there is no
requirement in terms of the law that a resolution by the board of
directors be produced in every case.
The
deponent had filed papers on behalf of the respondents in the court a
quo and his authority had, at no time, been challenged.
In
this case, the deponent had specifically stated in his affidavit that
he was duly authorised to depose to the affidavit on behalf of the
respondents.
No
evidence having been provided by the applicant to show that the
deponent was not so authorised, the objection to the authority of the
deponent to represent the respondents is not sustainable.
ISSUES
FOR DETERMINATION
On
the basis of the submissions made by the parties, the first issue
that falls for determination is whether the application for
condonation and extension is properly before the court, regard being
had to paragraph 5 of the Practice Directive.
If
the application is not properly before this Court, then that would be
the end of the matter and the application would stand to be struck
off the roll.
In
the event, however, that the application for condonation and
extension of time in which to appeal is found to be properly before
the court, the issue that would arise is whether, in the absence of a
board resolution by the respondents authorising the deponent to act
on its behalf, the opposing affidavit filed by the deponent is
properly before this Court.
If
not, then the matter would be regarded as unopposed. If it is found
that it is properly before the court, then the merits of the
application would then require determination.
PARAGRAPH
5 OF THE PRACTICE DIRECTIVE
There
can be no doubt that paragraph 5 of the Practice Directive cuts
across legal principle established by this Court in a long line of
cases over the years. It also effectively overrides Rule 43 of the
Supreme Court Rules.
Rule
43 has made provision for the procedure to be followed in
applications for leave to appeal and for condonation of
non-compliance with the Rules and for extension of time in which to
appeal.
In
Jensen v Acavalos 1993 (1) ZLR 216 (S)
KORSAH JA made the following pertinent remarks:
“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, it must be struck off the roll with
costs.”
In
Hattingh v Piennar 1977 (2) SA 182 (O) 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 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.
That
the above sentiments correctly reflect the current state of the law
in this country is without doubt.
In
Matanhire v BP and Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR
147 (S) 149E-H, MALABA JA (as he then was), writing for the court,
cited with approval the remarks made in Jensen v Acavalos as well as
the decision of this Court in Business Equipment Corp v Baines
Imaging Group 2002 (2) ZLR 354 (S).
Paragraph
5 of the Practice Directive has effectively set aside the various
decisions of this Court based on Jensen v Acavalos (supra) and
instead introduced a completely different regime on what a litigant
should do in the event that he finds himself in breach of the Rules
of this Court and, in particular, where the matter, purporting to be
an appeal, is struck off the roll for non-compliance with the rules.
I
am inclined to agree with Mr Madhuku, for the applicant, that
paragraph 5 of the Practice Directive, as presently worded,
contradicts the Supreme Court Rules, 2018 (and also the 1964 Rules
before their repeal and substitution by the 2018 Rules) and that the
paragraph, in reality, is meaningless.
As
he correctly points out, once it is accepted that there is no valid
appeal before the court, there is no defect to correct.
There
is no matter pending before the court and consequently there is
nothing that can be deemed abandoned.
Further,
as there is nothing before the court, there is no matter to
reinstate.
The
thirty (30) day requirement is reckoned from the date the matter is
struck off the roll by the court. In the absence of condonation and
extension of time, there is no obligation on an aspiring appellant to
do anything further to regularise the non-compliance with the rules.
In
Bindura University v Paison Chikeya Mugogo SC 32/15, following the
striking off of the appeal, the applicant, within the requisite
period of 30 days provided for in paragraph 5 of the Practice
Directive, filed an application seeking reinstatement of the appeal.
Noting
that paragraph 5 of the Practice Directive had been introduced in
order to manage cases which would have been struck off the roll so
that the registry would not be cluttered with dead files, GUVAVA JA
determined that one could not simply apply for reinstatement of the
appeal as such an appeal is a nullity.
Instead,
the learned judge held that the applicant in that case should have
applied for condonation and extension of time within which to appeal.
The
difficulty, as correctly pointed out by Ms. Mahere, is that Practice
Directive 3/13 and more specifically paragraph 5 thereof is still
extant and bids compliance by litigants whose matters are, for one
reason or another, struck off the roll.
Notwithstanding
its obvious defectiveness, should I as a Judge of this Court,
continue to demand compliance therewith despite the fact that it is
meaningless and is not capable of implementation?
STATUS
OF A PRACTICE DIRECTIVE
A
practice directive (or direction) is a supplementary protocol to
rules of civil or criminal procedure in the courts; English Legal
System, Nineteenth Edition.
Practice
Directives are official announcements by the court laying down rules
on how it will function. They are not the same as rules of court but
express the view of the court on matters of practice and procedure.
Litigants and practitioners are expected to comply with them or show
good cause for doing otherwise.
The
introduction to the Gauteng Division practice Manual states:
“The
provisions set out in the practice manual are not rules of court. It
does not displace or amend rules of court. It merely tells
practitioners how things are done in this court.”
It
is clear from the foregoing that a practice directive is binding and
has legal force and effect.
In
this regard see also the remarks of BHUNU JA in Ahmed v Docking
Station Safaris (Private) Ltd t/a CC Sales SC 70/18.
Litigants
appearing before the courts are therefore obligated to comply with,
not just the rules of court but also its practice directives.
The
law, however, recognizes that rules of court are not always an end in
themselves and that, in appropriate circumstances, they may be
departed from in the interest of achieving justice.
Rule
4 of the Supreme Court Rules, 2018 provides that a court or a judge
may direct a departure from the rules in any way where this is
required in the interests of justice and, additionally or
alternatively, may give such directions in matters of practice or
procedure as may appear to him to be just and expedient.
The
rule emphasises the precept that rules are designed to ensure a fair
hearing and the achievement of justice.
That
rules and practice directives are made for the court and not the
court for the rules is a principle accepted in this jurisdiction.
Various decisions of the courts in this country and in South Africa
have stressed this position.
Therefore,
where strict adherence to a rule and, I would add, a practice
directive issued by a court, results in substantial injustice, a
court will grant relief in order to prevent such an injustice; Eke v
Parsons 2016 (3) SA 37; HPP Studios (Pvt) Ltd v Associated Newspapers
of Zimbabwe (Pvt) Ltd 2000 (1) ZLR 318 (H); Mogale City v Fidelity
Security Services (Pvt) Ltd & Ors 2015 (5) SA 590.
The
Rules of Court are not laws of the Medes and Persians 1
and in suitable cases the Court will not suffer sensible arrangements
between the parties to be sacrificed on the altar of slavish
obedience to the letter of the Rules - Scottish Rhodesian Finance Ltd
v Honiball 1973 (3) SA 747, 748G-H.
In
Sigugu v Minister of Lands & Anor 2013 (1) ZLR 48 (H), the High
Court accepted that administrative practices that evolve through
directives, circulars and the like, though without specific statutory
authority, are permissible as long as they do not conflict with the
empowering legislation under which an authority acts or infringe
legally protected rights and interests.
In
Greenberg v Khumalo & Anor (2012) JOL (GS) the court stated that
a practice directive which is inconsistent with the rules is
procedurally incompetent.
Further
in In re: Several Matters on the Urgent Roll (2012) ZAGPLHC 165;
(2012) 4 All SA 570, the court held that if a practice directive is
compatible with or complements the rules, then it cannot be objected
to.
In
Absa Bank Limited v Lekuku (32700/2013) (2014) ZAGPJHC 274 (14
October 2014) the court expressed the view that where a practice
directive is a product of a collective discussion of the judges in a
particular division, a court should not tamper with the provisions of
the Practice Manual and that the matter was better left in the hands
of the Judge President who, after consulting the judges of that
division, can advise the Chief Justice to amend the relevant portions
of the Practice Directive.
In
the case of Practice Directive 3/13, it is a fact that it was not the
product of discussions amongst the judges of this Court. It was
issued by the then Chief Justice without any input from judges in
order to manage the figures of inactive matters that gave the
impression that there was backlog in uncompleted cases.
Notwithstanding
the fact that this was a practice directive issued by the then Chief
Justice, I consider that I have the jurisdiction, in the interests of
justice, to direct that paragraph 5 of that Practice Directive does
not abrogate an applicant's right to apply for condonation and
extension of time in terms of Rule 43 of the Supreme Court Rules.
Moreover,
in terms of section 176 of the Constitution, this Court, together
with the Constitutional and High Courts, has the inherent power to
protect and regulate its own process and to develop the common law,
taking into account the interests of justice and the provisions of
the Constitution.
The
court will exercise inherent jurisdiction whenever justice requires
that it should do so, or where justice cannot properly be done unless
relief is granted to the applicant: Moulded Components and
Rotomoulding South Africa (Pty) Ltd v Cou courakis & Anor 1979
(2) SA 457 (W).
In
the exercise of its inherent jurisdiction the court may regulate its
own procedure independently of the Rules of Court: Mukaddam v Pioneer
Foods (Pty) Ltd & Ors 2013 (5) SA 89 (CC); 2013 (1) BCLR 1135
(CC) (27 June 2013).
A
practice directive should complement or enhance existing rules of
court and not render such rules nugatory.
Everything
considered therefore, and in order to do justice to litigants who
fall foul of the requirements of the Rules of court, paragraph 5 of
Practice Directive 3/13 must be regarded as subservient to Rule 43 of
the Rules of this Court.
Were
that not the position, litigants such as the applicant would find
their right to access the court stultified.
The
preliminary objection raised by the respondents in this regard must
therefore fail.
It
is unconscionable that paragraph 5 of the Practice Directive, with
its obvious shortcomings, is allowed to remain operative.
The
difficulty however is that the practice directive emanated from the
office of the Chief Justice. I do not believe that, as a single judge
in chambers, I have the legal authority to set aside that practice
directive.
The
best course would be for a copy of this judgment to be forwarded to
him so that he may take appropriate action in order to regularise the
situation.
WHETHER
A BOARD RESOLUTION WAS REQUIRED AUTHORISING DEPONENT TO ACT ON BEHALF
OF THE RESPONDENTS
This
is the question that now arises.
The
respondents say it is not necessary that a resolution of the board of
directors be produced in all cases involving legal entities,
particularly in a case, such as the present, where the deponent has
previously represented the respondents and his authority to do so has
not been challenged.
Ms
Mahere cited a number of High Court decisions that suggest that a
resolution is not always necessary in such cases.
The
cases of Air Zimbabwe Corporation & Ors v ZIMRA 2003 (2) ZLR 11,
16 and Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR
218 (H) cited by Ms Mahere were decided before the decision of this
Court in Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514
(S).
The
case of Zimbank v Trust Finance Ltd 2006 (2) ZLR 404 (H) which she
also cited did not deal with the question that is before me. Rather
the question before the court in that case was whether the failure by
a legal practitioner who had acted for the applicant in the
litigation giving rise to the application to state in his founding
affidavit that he had been authorised to act for his client was not
fatal.
The
reality is that there have been conflicting decisions in the High
Court on the question whether a deponent who purports to represent a
legal entity is required, in all cases, to prove that he is duly
authorised to represent the legal entity.
On
the one hand a number of cases have relied on the judgment of this
Court in Madzivire (supra) in determining that proof of such
authority is necessary in all cases see for example Deputy Sheriff,
Chinhoyi v Appointed Enterprises & Ors HH 450/13; First Mutual
Investment (Private) Limited v Roussaland Enterprises (Private)
Limited t/a Third World Bazaars HH 301/17.
On
the other hand, a number of cases from the same court have held that
proof of such authority was not necessary in all cases.
The
latter cases made no mention of the decision of this Court in
Madzivire and appear to have been oblivious to its existence as
authority on this topic see for example African Banking Corporation
of Zimbabwe Limited t/a Banc ABC v PWC Motors (Pvt) Ltd & 3 Ors
HH 123/13; Tianze Tobacco Co (Pvt) Ltd v Muntuyadzwa HH 626/15;
Mukomba v Unibox Investments t/a Arundel Village Spar HH 539/15;
Trustees of The Makono E Chimanimani v Minister of Lands & Anor
2016 (2) ZLR 324 (H).
The
conflict in the High Court on this aspect was completely unnecessary.
In
Madzivire & Ors v Zvarivadza HH 74/2006 MAKARAU J (as she then
was) stated as follows:
“The
fictional legal persona that is a company still enjoys full
recognition by the courts. Thus, for any acts done in the name of a
company, a resolution, duly passed by the board of directors of the
company, has to be produced to show that the fictional persona has
authorised the act. In my view, so trite is this proposition or so
settled is this position at law that no authority need be cited. The
applicants are well aware of this position at law for in paragraph 17
of the first paragraph, issue is taken that no resolutions were
passed by the company authorising the first respondents and others to
do certain acts complained of in that paragraph. Due to lack of such
authority stemming from the Board of Directors, the applicants argue
that the purported act by the first respondent are null and void.
Such may be the case, but the irony of it all is that the applicants
themselves are guilty of the oversight forming the basis of their
complaint to this court. No resolution was produced before me to show
that the first to third applicants are authorised to bring this
action on behalf of the fourth respondent. In seeking to lay a
foundation for purporting to act on behalf of the fourth applicant,
the first applicant had this to say in paragraph 2 of his founding
affidavit:
'I
am making this Affidavit on my own behalf and on behalf of the Fourth
Applicant who is a Legal persona wherein I am the Managing Director
and shareholder respectively and in that capacity, I am authorised to
make the following statements on behalf of the Fourth Applicant.'
Needless
to say, this is woefully inadequate to clothe the deponent with
authority to make any statement on behalf of the fourth applicant.
The
paragraph does not even attempt to lay a basis for holding that the
bringing of the proceedings in the name of the fourth applicant is
authorised.
The
first to third applicants have expressly averred in their respective
affidavits that they also bring this application on their own
behalves as directors and shareholders of the fourth respondent.”
The
High Court decision was appealed to this Court.
In
a decision reported as Madzivire & Ors v Zvarivadza & Ors
(supra), at 515, this Court (per Cheda JA) remarked as follows:
“A
company, being a separate legal person from its directors, cannot be
represented in a legal suit by a person who has not been authorised
to do so. This is a well established legal principle, which the
courts cannot be ignored. It does not depend on the pleadings by
either party. The fact that the person is the managing director of
the company does not clothe him with the authority to sue on behalf
of the company in the absence of any resolution authorising him to do
so. The general rule is that directors of a company can only act
validly when assembled at a board meeting. As exception to this rule
is where a company has only one director who can perform all judicial
acts without holding a full meeting.”
The
above remarks are clear and unequivocal.
A
person who represents a legal entity, when challenged, must show that
he is duly authorised to represent the entity. His mere claim that by
virtue of the position he holds in such an entity he is duly
authorised to represent the entity is not sufficient. He must produce
a resolution of the board of that entity which confirms that the
board is indeed aware of the proceedings and that it has given such a
person the authority to act in the stead of the entity.
I
stress that the need to produce such proof is necessary only in those
cases where the authority of the deponent is put in issue. This
represents the current state of the law in this country.
In
this case the deponent to the opposing affidavit produced no such
resolution.
Going
by the papers before me, the two respondents operate through two
distinct boards of directors. Whilst the deponent may be the
chairperson of the Board of Directors of the first respondent, that
position does not, on its own, clothe him with the necessary
authority to represent the first respondent's Board of Directors.
Nor is there any proof that the board of the second respondent has
also authorised him to represent the second respondent in this
application.
The
point in limine taken by the applicant must therefore succeed.
DISPOSITION
I
am satisfied that paragraph 5 of Practice Directive 3/13 purports to
override Rule 43 of the Supreme Court Rules.
This,
it cannot do.
A
practice directive should complement Rules of Court, particularly in
areas where there may be a lacuna in the Rules. It is not in the
interests of justice that a practice directive should take away
rights given by the Rules and effectively leave a litigant without a
remedy.
Further
it is clear that it is the law in this country that, when challenged,
a person who purports to represent a legal entity must produce proof
of his authority to represent such entity. In the absence of proof of
such authority, the affidavit deposed to on behalf of the entity is
irregular and must be ignored.
In
the result, I make the following order:
1.
The preliminary point raised by the respondents, namely that the
application for condonation and extension is not properly before the
court for failure to comply with paragraph 5 of Practice Directive
3/13, is dismissed with costs.
2.
For the avoidance of doubt, the application for condonation and
extension of time within which to appeal is properly before the
court.
3.
The preliminary objection raised by the applicant on the lack of
authority of the deponent to the opposing affidavit is upheld with
costs.
4.
The Registrar of this Court is to set this matter down for
determination on the merits in due course.
5.
The contents of this judgment are to be brought to the attention of
the Chief Justice so that he may, as suggested earlier in this
judgment, take appropriate action to regularise Practice Directive
3/13.
Venturas
& Samkange,
applicant's legal practitioners
Muzangaza
Mandaza & Tomana,
respondents legal practitioners
1.
The law of the Medes and Persians refers to that which is inviolable
or immutable. The saying emanates from the Book of Daniel 6.8 in the
Bible in which high officials and satraps said to King Darius: 'Now,
O King establish the decree and sign the writing, so that it cannot
be changed, according to the law of the Medes and Persians, which
altereth not.'
