The appellant is a Zimbabwean who resides in South Africa. He is a former director of Rodstreet Trading (Private) Limited (“Rodstreet”), a company registered in terms of the laws of Zimbabwe. The respondent is a company registered in the British Virgin Islands but operating from Dubai though engaging in financial transactions in Zimbabwe.
Factual Background
The common cause facts on which the dispute arose are as follows:
On 22 August 2011, Rodstreet Trading (Private) Limited (Rodstreet) drew and issued a Bankers Acceptance (hereinafter called “the BA”) in the sum of US$117,335=91 in favour of Interfin Bank. Interfin Bank accepted the BA. The Bankers Acceptance's due date was 21 November 2011, that is, 91 days after sight.
Interfin Bank subsequently sold the Bankers Acceptance to the respondent on a buyback basis.
By letter dated 7 March 2012, Interfin Bank advised Rodstreet Trading (Private) Limited that it had sold the Bankers Acceptance (BA) to the respondent on a buyback basis, but, the respondent was demanding immediate payment of the BA.
The respondent demanded payment of the Bankers Acceptance (BA) from both Interfin Bank and Rodstreet Trading (Private) Limited. They both failed to pay.
The respondent issued a letter of demand to Rodstreet Trading (Private) Limited demanding payment in the sum of US$117,335=91. Rodstreet was not able to make any payment.
On 27 April 2012, the respondent issued summons against Rodstreet Trading (Private) Limited in the High Court, under case No. HC4556/12. On 18 June 2012, a default judgment was granted against Rodstreet.
The respondent instructed the Deputy Sheriff to proceed to Rodstreet Trading (Private) Limited's place of business to execute a writ issued in terms of the order granted on 18 June 2012. On 3 August 2012, the Deputy Sheriff filed a return indicating that Rodstreet was no longer operating from its registered premises.
The respondent applied to the court a quo for an order, in terms of section 318 of the Companies Act [Chapter 24:05], declaring the appellant personally liable to pay the respondent the sum of US$117,335=91 plus interest at the rate of 30 per cent per annum from 21 November 2011 to the date of full payment plus costs of suit.
The respondent sought the order against the appellant in his capacity as a director of Rodstreet Trading (Private) Limited.
It alleged, that, at all material times, the appellant knew, or should have known, that Rodstreet Trading (Private) Limited would not be able to pay the amounts owed in terms of the Bankers Acceptance (BA) which it issued. The respondent argued, that, the appellant, being a director of the company, negligently and/or fraudulently misrepresented to Interfin Bank that Rodstreet would liquidate the amount owed on the Bankers Acceptance on its maturity date.
The respondent submitted, that, due to his gross negligence and reckless trading, the appellant must be held personally liable in terms of section 318 of the Companies Act for monies owed by Rodstreet Trading (Private) Limited to the respondent. In the respondent's view, the appellant owed a duty of care to all parties which conducted business with Rodstreet, including the respondent, to ensure Rodstreet would be able to meet its financial obligations.
The appellant opposed the respondent's application in the court a quo, arguing that he was no longer a director of Rodstreet Trading (Private) Limited, having resigned from its Board on 3 November 2011 when he sold his shareholding in the company.
He further stated that the Bankers Acceptance (BA), which forms the main issue in these proceedings, was issued entirely and signed by his two co-directors, Mr Herbert Rinashe and Phillip Jonasi, without his knowledge, and that, to the best of his knowledge, no Board resolution was ever made in his presence to issue the BA.
The court a quo found the appellant personally liable for the amount owed to the respondent by Rodstreet Trading (Private) Limited, holding that the directors of Rodstreet, including the appellant, had acted recklessly, negligently, if not fraudulently, in drawing up the Bankers Acceptance (BA) and accepting money, despite their knowledge of the company's precarious financial position.
Aggrieved by the court a quo's decision, the appellant appealed to this court.
He filed a 'Notice of Appeal' against which the respondent raised preliminary issues. The respondent filed a notice of objection in terms of Rule 41 of the Supreme Court Rules, RGN 380 of 1964, objecting to the appellant's Notice of Appeal on the basis that it was fatally defective.
On the date of hearing, we decided that the parties address us on the preliminary issues raised by the respondent as well as on the merits of the matter.
The Preliminary Issues
Counsel for the respondent contended, that, the document which was filed by the appellant, as its Notice of Appeal, does not comply with the Rules of this Court, particularly Rule 29(1)(a), (d) and (e), and Rule 32(1).
Rule 29 of the Supreme Court Rules provides as follows;
“29. Entry of Appeal
(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state —
(a) The date on which, and the court by which, the judgment appealed against was given;
(b) If leave to appeal was granted, the date of such grant;
(c) Whether the whole or part only of the judgment is appealed against;
(d) The grounds of appeal in accordance with the provisions of Rule 32;
(e) The exact nature of the relief which is sought;
(f) The address for service of the appellant or his attorney.”…,.
It is clear that Rule 29(1)(a) to (f) of the Supreme Court Rules provides the mandatory attributes of a compliant Notice of Appeal. A diligent legal practitioner is expected to use it as a check list in formulating a compliant Notice of Appeal. It clearly and succinctly lays out what must be stated in a Notice of Appeal.
The use of the words “which shall state” signifies the mandatory nature of Rule 29(1) of the Supreme Court Rules. It means if what the Rule says must be stated is not stated, the Notice of Appeal will be fatally defective.
In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited SC61-03, this Court, in explaining the effect of the mandatory provisions of Rule 29(1) of the Supreme Court Rules, quoted the case of Talbert v Yeoman Products (Private) Limited SC111-99 where MUCHECHETERE JA held, that, a Notice of Appeal which does not comply with the provisions of Rule 29(1) of the Supreme Court Rules was null and void.
Relying on the mandatory nature of Rule 29(1)(a)(d) and (e) and Rule 32(1) of the Supreme Court Rules, referred to above, counsel for the respondent submitted, that, the appellant's Notice of Appeal was fatally defective in three respects:
Counsel for the respondent submitted, that, the preamble incorrectly stated the court which handed down the judgment appealed against. The preamble reads;
“TAKE NOTICE THAT the appellant hereby appeals against the whole judgment by the Honourable Mr Justice TAGU of the High Court of Harare in Case Number HC4556/12 which was handed down on 22 June 2016.”…,.
He submitted, that, the appellant purports to appeal against the judgment of TAGU J of the High Court Harare. TAGU J is a judge and not a court. Rule 29(1)(a) of the Supreme Court Rules requires the appellant to state, in his Notice of Appeal, the court by which the judgment appealed against was given. Therefore, the appellant ought to have stated that he was appealing against the judgment of the High Court of Zimbabwe.
Counsel for the appellant submitted, that, Rule 29(1)(a) of the Supreme Court Rules requires an appellant to state the court whose judgment is appealed against. He submitted that the appellant stated that he was appealing against the judgment by TAGU J of the High Court. He submitted, that, in spite of the mentioning of the judge, the High Court was identified as the court against whose judgment the appeal was noted.
There is a distinction between a 'court' and a 'judge'.
Section 43(1) of the High Court Act [Chapter 7.06] provides as follows:
“(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.”
It is therefore clear, that, an appeal from the High Court should be against a judgment of the High Court.
Order 1 Rule 3 of the High Court Rules 1971 defines the words 'court' and 'judge' as follows:
“'court' means the general division of the High Court;
'judge' means a judge of the court, sitting otherwise than in open court;”
The word 'judge' only applies when a judge is not sitting in open court. It only applies to a judge sitting in chambers.
Rule 29(1)(a) of the Supreme Court Rules requires an applicant to state “the date on which, and the court by which, the judgment appealed against was given. It specifies the court - not the judge.
Rule 29(1) of the Supreme Court Rules also specifies the format in which the appeal should be noted. It states:
“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state -
(a)…,.”
It is therefore mandatory in respect of the format and what must be stated.
Practice Direction No.1 of 2017, though issued after the hearing of this matter, requires an appellant to state the court against whose judgment the appeal is noted. It is informed by section 43(1) of the High Court Act, and the definitions of 'court' and 'judge' by the High Court Rules.
I therefore agree with counsel for the respondent, that, the appellant's Notice of Appeal does not comply with Rule 29(1)(a) of the Supreme Court Rules.
Counsel for the respondent also submitted, that, the relief sought by the appellant is fatally defective because the nature of the relief sought is not exact. It reads as follows:
“WHEREFORE the Appellant prays that the judgment of the court a quo be set aside and substituted with the following:
'(a) The appeal be and is hereby allowed with costs.
(b) The judgment of the court a quo is set aside and substituted with the following;
The application be and is hereby dismissed with costs on an attorney and client scale.'”
He submitted that the relief sought is fatally defective for two reasons:
Rule 29(1)(e) of the Supreme Court Rules is mandatory. It requires the appellant or his legal practitioner to state the 'exact nature of the relief sought'. It follows therefore, that, the exact nature of the relief sought must be stated to inform the court about the nature of the order sought. The appellant must not leave it to the court to think for him and draft the order for him.
Counsel for the respondent submitted, that, the nature of the substituting order sought is not exact because the court a quo cannot grant parts (a) and (b) of the relief sought, which respectively pray that the appeal be allowed and the judgment of the court a quo be set aside and be substituted.
The case before the court a quo was not an appeal but an application, therefore, the appellant ought to have prayed, in paragraph (a) of his relief sought, that the application a quo be granted. With regards paragraph (b), it goes without saying that the court a quo cannot set aside its own judgment.
The exact nature of the relief sought referred to in Rule 29(1)(e) of the Supreme Court Rules refers to the type or characteristics of the relief sought. This means the relief sought must be of the type relevant to the dispute between the parties.
Therefore, the nature of the relief sought was wrongly framed and is incompetent as it refers to allowing an appeal and setting aside of an order, remedies which could not have been granted by the court a quo in a court application.
The nature of the relief sought in substituted orders (a) and (b) does not, therefore, comply with the requirements of Rule 29(1)(e) of the Supreme Court Rules.
Counsel for the appellant conceded, that, the appellant's Notice of Appeal does not comply with Rule 29(1)(e) of the Supreme Court Rules. He however submitted that the defective prayer could be amended.
I do not agree.
A fatally defective prayer, which does not state the exact nature of the relief sought, cannot be amended. In Dabengwa & Anor v ZEC & Others SC32-16, this Court held that:
“The Rule (29) is mandatory in its terms and has been construed as such in numerous decisions of this Court. The principle emanating from these authorities is that a document which fails to comply with the requirements of the Rule is fatally defective and cannot be amended.”
In Matanhire v BP Shell Marketing SC113-04 this Court refused to amend a Notice of Appeal which was fatally defective. At page 1 of the cyclostyled judgment, MALABA JA…, highlighting the importance of complying with the Rules of Court said:
“It is not usual to write a judgment on a matter that has been struck off the roll: see S v Ncube 1990 (2) ZLR 303 (S). This judgment has been written for purposes of drawing the attention of legal practitioners to the fact, that, all the matters required by the Rules of Court to be stated in a valid Notice of Appeal are of equal importance so that failure to state one of them renders the Notice of Appeal invalid.”...,.
The authorities clearly state, that, Rule 29(1)(a) to (f) of the Supreme Court Rules is mandatory and must be complied with.
A Notice of Appeal which does not comply with this Rule is fatally defective and cannot be amended as there will be nothing to amend.
A nullity cannot be amended.
Counsel for the respondent further submitted, that, the appellant's grounds of appeal are not concise and are repetitive. They therefore do not comply with the provisions of Rule 32(1) of the Supreme Court Rules which require that grounds of appeal “be set forth concisely”.
Rule 32(1) of the Supreme Court Rules provides for grounds of appeal as follows:
“(1) The grounds of appeal shall be set forth concisely and in separate numbered paragraphs.
(2)…,.
(3) Application to amend the grounds of appeal may be made before the hearing of the appeal to a judge or at the hearing of the appeal.”…,.
It is apparent from a close reading of Rule 32(1) of the Supreme Court Rules, that, it is mandatory. Grounds of appeal must therefore comply with it.
Counsel for the appellant agreed that some of the grounds of appeal are not concise and are repetitive. He suggested that they could be amended.
Rule 32(3) of the Supreme Court Rules provides for the amendment of grounds of appeal by way of a chamber application or at the hearing of an appeal.
Counsel for the appellant did not say which grounds of appeal should be amended, and how they could be amended.
The court cannot amend un-identified grounds of appeal. It is the duty of the appellant, or his counsel, to apply for the amendment of specified grounds of appeal suggesting how they should be amended.
It is however common cause, that, the Notice of Appeal in this case contains some valid grounds of appeal. The court could have considered them if the Notice of Appeal was not fatally defective in other respects.
A clear and concise ground of appeal in an otherwise valid Notice of Appeal cannot be disregarded because there are other defective grounds of appeal in the same Notice of Appeal. It should be considered while the defective grounds of appeal should be struck out.
It is clear that the Notice of Appeal in this case does not comply with Rule 29(1(a)(e) and Rule 32(1) of the Supreme Court Rules. It is fatally defective. It is therefore not necessary to deal with the merits of a fatally defective Notice of Appeal.
In the result, the matter is struck off the roll with costs.
