Before GUVAVA JA, in chambers.
This
chamber application was placed before me in terms of r 5 of the Supreme Court
Rules, 1964. Although it was unopposed
it raised an issue concerning the interpretation of Practice Directive 3/13.
BACKGROUND
The appeal relating
to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not
comply with r 4 (2) and r 7(b) of the Supreme Court (Miscellaneous Appeals and
References) Rules 1975. Firstly, the
notice of appeal reflected the wrong date on which judgment was delivered by
the Labour Court. It was quite clear ex facie the judgment that it had been
hand down on 29 June 2012. However the
notice of appeal stated that it was handed down on 29 May 2012.
Secondly, a copy
of the notice of appeal was served on the Registrar of the Labour Court contrary
to the order by GOWORA JA. The order granted by GOWORA JA stated as follows:
1.
“Leave be and is hereby
granted to the applicant to note an appeal against the judgment of the Labour
Court No LC/H/196/2012 handed down on 29 June 2012.
2.
The Notice of appeal
shall be noted within fourteen (14) days of the date of this order.
3.
There be no order as to
costs.”
It
was thus incumbent upon the applicant to serve the notice of appeal with the
registrar of the Labour Court within fourteen days of the grant of the
order. The order was granted on 28
January, 2014. It was only filed with
the Registrar of the Labour Court on 28 February, 2014, a month later.
WHETHER
THE APPLICATION IS PROPER
Following the decision
to strike off the appeal, the applicant filed this chamber application seeking
to reinstate the appeal. The applicant
stated in his founding affidavit that the application was being made in terms
of The Supreme Court (Miscellaneous Appeals and References) Rules 1975 as read
with Practice Directive 3/13.
In
support of the application, Mr Muzangaza,
the applicant's legal practitioner, conceded that there was an error on the
notice of appeal since the date the judgment had been delivered was 29 June
2012 and not 29 May 2012. He however sought to explain the error by stating
that it was a genuine mistake on the part of the legal practitioner dealing
with the matter.
He further explained that the failure to serve the registrar
of the Labour Court with the notice of appeal within the time specified in the
order was due to the fact that the Labour Court registrar had refused to issue
out any court process in the absence of the record of proceedings. The notice of appeal was only accepted on 28
February 2014 after the record had been located. He therefore submitted that the delay in the
service of the notice of appeal to the Labour Court was occasioned by
circumstances beyond the control of the applicant.
It was his submission that since no prejudice had
been occasioned to the respondent by his failure to comply with the rules of
the court the application should be granted.
It however seems to me
that the applicant has filed a wrong application. Where a matter has been struck off the roll
because it has failed to comply with the rules of court, one cannot simply apply
for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of
decisions of this Court. The leading
case in this regard is the case of Jensen
v Acavalos 1993 (1) ZLR 216 at 220 B (S)
where KORSAH JA stated as follows at :
“… 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….”
INTERPRETATION
OF PRACTICE DIRECTION 3/13
It was the applicant's contention that the
application was being brought in terms of paragraph 5 of Practice Direction 3
of 2013. In my view it is necessary for
the sake of completeness that I cite the relevant portion of the practice
direction which relates to matters which have been struck off the roll:
“Struck
off the roll
3. The
term shall be used to effectively dispose of matters which are fatally
defective and should not have been enrolled in that form in the first place.
4. In accordance with the decision
in Matanhire v BP & Shell Marketing Services ( Pvt) Ltd 2004
(2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a
matter is struck off the roll, the effect is that such a matter is no longer
before the Court.
5. 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.” (Underlining
is my own)
It seems to me
that a proper interpretation of para 5 of the Practice Direction 3/13 is
that the applicant must, within thirty days, rectify the defect by applying for
condonation for the late noting of appeal and an extension of time within which
he should comply with the rules. He may
not do so after the window period which he has been given to rectify the defect
as the matter will be deemed to have been abandoned. It seems to me that the restriction on the
period within which to rectify the defect was included in the practice
directive in order to manage cases which would have been struck off the roll so
that the registry would not be cluttered with “dead” files. Thus a litigant who wished to pursue his
matter was granted a limited time within which to apply to cure the defect
failing which the matter would be deemed abandoned.
In this case the applicant correctly filed an
application within the prescribed period of thirty days. However an application
for reinstatement is not the appropriate remedy.
This
position is confirmed by the case of Hattingh
v Pienaar 1977 (2) SA 182 (0) where the court had occasion to deal with a
defective compliance of the rules, such as in the present matter. The court held as follows:
“… 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.”
I respectfully agree with this view.
The appeal, having been
found to be fatally defective, cannot be reinstated after being struck off the
roll. The applicant's remedy to rectify
the defect is to apply for condonation and extension of time within which to
file a fresh notice of appeal in terms of rule 6 of the Supreme Court (Miscellaneous
Appeals and References) Rules. He should
do so within the period of thirty days provided for in the practice directive.
DISPOSITION
In the result, the
matter is struck off the roll with no order as to costs.
Muzangaza, Mandaza
& Tomana, applicant's legal practitioners
Messrs Gill, Godlonton & Gerrans, respondent's legal
practitioners
