This is an appeal against the decision of the Chitungwiza magistrate handed down on 25 March 2009, awarding the appellant 15% of the value of the immovable property acquired by the parties during the subsistence of their four year unregistered customary law marriage.

The plaintiff listed her grounds of appeal as follows:

“The learned Magistrate erred in awarding the Appellant only 15% of the value of the property with regard to the following factors:

1. The appellant's contribution to the acquisition of the immovable property, and subsequent construction of the house, whether financially, directly or indirectly, have been undermined, including -

1.1 Appellant's supervision of builders, during the construction period throughout, whilst the Respondent was away from home.

1.2 Appellant's total commitment where she would go on foot to buy most of the building material from Makoni Home Industry and the Builders Market using a push cart.

1.3 Appellant foregoing her social life during the period of construction of the property.

1.4 Appellant's contribution in selling goods brought home by Respondent for resale to raise capital for the construction of the house.

1.5 The parties lived together during which period the Appellant gave the Respondent social well being, companionship, peace of mind, and confidence much that while in his absence the Appellant would be trusted to commit herself to the construction of the property.

2. The learned Magistrate erred in finding that after consideration of the factors outlined in paragraphs 1.1 – 1.5 above, the Appellant deserved a paltry 15% of the value of the property.”

The appellant then prays for a “substantially higher percentage which is both fair and reasonable and commensurate with her contributions” and costs.

In a notice of amendment of grounds of appeal, the appellant submitted the following additional grounds of appeal:

“3. The court a quo erred in failing to make an analysis of the choice of law in order to provide for the application of General Law.

3.1 As a result, the court a quo erred in failing to apply the principle of tacit universal partnership which was the only legal regime available in order to do justice to the parties.

4. The court a quo erred in failing to be guided by the provisions of the Matrimonial Causes Act (Chapter 5:13) in coming to its conclusion.

5. The court a quo erred in dismissing the Appellant's evidence that her brother assisted the parties financially on the basis that the brother can claim his money from the Respondent.”

The appellant also amended her prayer by deleting the original one and substituting it with one calling for the setting aside of the order of the court a quo and awarding her 50% of the value of the immovable property and costs of suit.

Regarding the choice of law submission, the court a quo appears to have exercised its mind over it and made the decision to proceed in terms of General Law, as shown by the following exchange in the record of proceedings…,:

“CROSS EXAMINATION (Appellant being cross examined by respondent's legal practitioner)

Q: Would you have any problems if the sharing of property is done under Customary Law and not General Law?

A: No.

Q: You confirm you don't have an antenuptial contract in your marriage?

A: Yes.

Q: Are you aware that you should have advanced reasons why you have opted this court to proceed in terms of General Law at the expense of Customary Law?

LEGAL PRACTITIONER FOR PLAINTIFF (Objects): These points were raised as points in limine which he later waived. It is also filed of record that after that the matter was referred to Pre Trial Conference for matter to proceed to trial.

LEGAL PRACTITIONER FOR DEFENDANT: I am not referring to points in limine. This court is a Civil and Customary Law Court, and, even if plaintiff has chosen Customary Law, this court was still going to have this procedure. In Mashingaidze's case 1995 (1) ZLR 219, that was stated and I will hand over to court.

COURT: Objection sustained.”

Therefore, the ground of appeal raised by the appellant, in paragraph 3 above, falls away.

Regarding the direct applicability of section 7 of the Matrimonial Causes Act, the respondent is correct in pointing out that the marriage regime in casu is not recognized in that provision, but, the provision can be used as a useful guidance when all the other pre-requisites are met.

However, in seeking to raise the choice of law issue again in heads of argument, the respondent is in error.  

Had he intended to challenge the basis upon which the court a quo had proceeded, the respondent should have raised the point by way of a cross-appeal, which, in this case, he has not.

There are a number of irregularities in this matter. The failure by the trial magistrate to give reasons for the order granted is a serious misdirection. The court a quo is a court of record and should always give reasons for the decisions made. The rationale for this is self-evident as MUCHECHETERE J in S v Ndebele 1988 (2) ZLR 249..., had this to say-

"All courts are courts of record, and are required to keep full comprehensive records of proceedings..., the need to do so is obvious. In the absence of such record, how is the Review or the Appellate Tribunal to assess the correctness and validity of any proceedings placed before it for adjudication?"  

In casu, no resons are given as to the reason or resons why the learned magistrate was of the view that there are no changed circumstances. The appellant's request for the reasons for the order given was simply ignored.

The court a quo made a finding in terms of section 8(7)(b) of the Maintenance Act [Chapter 5:09] that the means or circumstances of the respondent have not changed since the making of the order on 18 March 2010. In the absence of reasons for this finding, this court is constrained in deciding whether the decision arrived at by the court a quo is indeed correct and supported by the facts or evidence on record.

The respondent complains that the grounds of appeal are long and winding and that consequently the notice is defective. 

In my view, given the conclusion I have come to above, it will not be necessary to determine this issue.

Having heard the case involving the same parties in case number HC1028/09, in chambers, on 10 March 2009, I granted the following provisional order on 16 March 2009;

“INTERIM RELIEF

Pending the confirmation of this matter, the applicants are granted the following relief:

(a) That applicants' possession, use, and occupation of remainder of Dodhill in the District of Hartley (Chegutu) be and is hereby restored, so that the status quo ante prior to 5 February 2009 is achieved;

(b) That the second respondent and all other persons claiming occupation and possession through her not being representatives, employees, or invitees of the applicants on the Remainder of Dodhill in the District of Hartely (Chegutu) shall forthwith vacate Remainder of Dodhill in the District of Hartley (Chegutu) and that all movable property introduced onto the property by them also be removed.

Pursuant thereto, in the event that it becomes necessary or expedient to do so, the Deputy Sheriff is hereby authorised and empowered to enlist the assistance of any member of the Zimbabwe Republic Police who are directed to provide such assistance to him so as to ensure that the provisions of this order are executed and implemented in full.”

It should be noted that in the application now before me the now applicant was the second respondent with the now first and second respondents having been the two applicants in the earlier case already referred to.

The background of this case can briefly be summarised as follows:-

In accordance with the promulgation of the Constitutional amendment number 17/05, Dodhill Farm, which was originally owned by the applicants, was acquired by Government and subsequently allocated to the applicant.

Whilst the applicants were still carrying out agricultural activities on the farm, the applicant occupied the farm in circumstances which prompted the two respondents to apply for a spoliation order which culminated in me granting them a provisional order as captured above.

Aggrieved by the provisional order granted against her, the applicant now seeks the leave of this court to enable her to formally lodge her appeal in the Supreme Court of Zimbabwe.

The thrust of the applicant's case is that this court erred in granting the provisional order in favour of the first and second respondents and that there are reasonable prospects of success on appeal.

The first and second respondents have strongly opposed the application arguing, inter alia, that the order granted was not final in nature but merely an interim relief whose next appropriate step would be for the applicant to seek its discharge if she is not happy with it as opposed to seeking leave to appeal against same.

It was also argued that there are no reasonable prospects of success on appeal.

The third respondent opted to be bound by the court's decision.

It was conceded, by the applicant, through her counsel, that the applicant and her counsel had not read the reasons for the court's decision at the time this application was filed and heard.

In the court's view, the assumption must be that before a litigant seeks to appeal or seeks leave to appeal against the decision of the lower court, one would have acquainted oneself with the reasons for the judgment because it is such reasons which invariably prompt an appeal, if at all.

In my view, the approach adopted by the applicant, through her counsel, is cause for concern because it has the potential of encouraging litigants to file frivolous appeals.

The court a quo ordered the defendant to handover four herd of cattle to the plaintiff within fourteen days of the judgment. In the alternative, the defendant was ordered to pay the plaintiff an amount of money equivalent to the current market value of the four cattle. The valuation was to be done by a mutually accepted third party.

Aggrieved by the court a quo's ruling, the defendant lodged this appeal...,.

The ground of appeal that the trial magistrate failed to give reasons for his judgment can be disposed of quickly...,.

Objections as to Record of Appeal

In the midst of the appeal hearing, after full argument by counsel for the appellant, counsel for the respondent raised the objection that the record of appeal was incomplete because the proceedings in the court a quo had not been transcribed, and because pages 3 and 4 of the record had not been duly certified.

This objection was put forward for the first time in these proceedings – almost two months after the record of appeal had been prepared and filed by the applicant.

Counsel for the applicant contended that while the notice of appeal was filed in the Supreme Court on 27 November 2007, it was not served on the Registrar of the High Court until two years later – on 26 January 2010. He further contended that the respondent did not, as required by Part V of Rule 34(1) of the Supreme Court Rules, within five days of filing the notice of appeal, tender or undertake to pay the Registrar's costs for the preparation of the record of appeal.

Reference to the original court record appealed against showed that the Registrar of the High Court was served with the notice of appeal on 10 December 2007. It further revealed that the respondent's legal practitioners undertook to pay for the costs of the preparation of the record of appeal on 10 December 2007.

During the course of the hearing counsel for the applicant took the point that the appeal relied upon by the respondent in proceeding to consecrate the second respondent against HLATSHWAYO J's order was fatally defective and a nullity at law in that the appeal was noted before HLATSHWAYO J had delivered his judgment.

Whether or not the appeal was filed before His Lordship had delivered his judgment is a point of fact which, in the normal run of things, should be referred to trial. It was, however, argued that the nature of the dispute was such that it was capable of resolution on the papers after considering documentary evidence from relevant witnesses.

It is common cause that the Registrar's office responsible for processing appeals to the Supreme Court closes at 4pm. No notices of appeal are accepted after 4pm.

The applicant's complaint is that HLATSHWAYO J completed delivering his judgment after 4pm. In that case, it was practically impossible to file a notice of appeal in the Registrar's office that day because by the time the judge finished delivering his judgment that office had closed

Considering that the issue of when and how a notice of appeal was lodged and issued in the Registrar's office is an issue essentially within the Registrar's responsibility I sought clarification from him. The Registrar has since submitted a detailed written report which reads -

“In the course of the proceedings held before Hon. BHUNU J in the above cited matter this honourable Court directed me to investigate and report on an allegation that a notice of appeal issued under case number SC180/09 was issued and processed on 24 July 2009 before the Honourable HLATSHWAYO J has passed his judgment at 17:35pm on the same date.

I have had occasion to peruse the notice of appeal in question and to interview the officer who issued the appeal in the Supreme Court, and my findings thereon are discussed seriatum.

Firstly, the issuance of all Court processes and pleadings, except urgent applications filed outside working hours, is conducted between 8:00am and 4:00pm, which times are in terms of the Rules of Court called business hours. In casu, the appellant, through its legal practitioners Gill Godlonton and Gerrans, approached the Supreme Court on the 24^th July before close of business at 4:00pm with a notice of appeal. Having satisfied himself that the notice of appeal was prima facie complying with the requirements prescribed by the rules of court in that:  

(a) The notice contains the date of judgment of the court a quo;

(b) It mentions the Court from which the appeal lies;

(c) It contains the grounds of appeal and prayer;

(d) It is signed by the legal practitioner of the appellant and contains the requisite address of service.

The Registrar categorically proceeded to issue the appeal by stamping and affixing a case number to the appeal and recording it in the Civil Book.

A copy of the notice of appeal was thereafter filed with the High Court in the Registrar's reception before close of business at 4:00pm. I however notice that the appeal was not filed with the Appeals Office as required. A blue ink has been used for the whole of July 2009 by the Appeals Office.

In my final analysis, I am fortified to maintain that the Notice of Appeal was issued during working hours when regard is given to the time that the respondents were served with the Appeal. The service was effected at 16:23 hours on the same day (see) page 2 of the attached notice.”

The officers' affidavits and the Registrar's report establish beyond question, and I did not hear anyone disputing, that the notice of appeal was filed during working hours. I accordingly find, as a matter of fact, that the notice of appeal in question was filed during normal working hours between 8:00am and 4:00pm.

The real crux of the matter is, however, whether or not the notice of appeal was filed before HLATSHWAYO J had delivered his judgment.

Mr. Tranos Goronga, the Judge's clerk who handled the matter, submitted a detailed affidavit concerning when the sitting started and ended on that day. It is necessary to reproduce his affidavit verbatim. It reads -

“1. I am a clerk to the Honourable Justice HLATSHWAYO, and, as such, relate directly to the files that he handled.

2. The matter between the Diocesan Trustees for the Diocese of Harare and the Church of the Province of Central Africa, Case No. HC2702/09 and HC4327/08 were heard in Court on 23 July 2009 with judgment being reserved for 15:00 hrs on 24 July 2009.

3. At around 15:00 hrs on 24 July 2009 I attended Court 'E' and advised the parties' legal practitioners, namely Mr. T. Moyo of Messrs. Chikumbirike and Associates for the applicant and Mr. R. Moyo with

Advocate Zhou for the respondents, that the Judge was delayed and was finalizing his judgment. I further advised the parties' legal representatives that I was going to inform them what time the judge was going to be available.  

4. It was around 16:00 hrs when I attended Court to advise the parties' that the learned Judge was now ready to pass his judgment and was therefore attending Court thereafter. The Honourable Judge HLATSHWAYO, led by myself, then entered the courtroom a short while later and read a prepared judgment in respect of Case No. HC2792/09-which was in favour of the applicant. An order was given in favour of the applicant. Immediately thereafter, he proceeded to read his judgment in Case No. HC4327/08-which was in favour of the applicant. I confirm that the proceedings ended at or around 16:35 hrs.    

5. As I was leaving the courtroom, I met a clerk in the employee of Messrs. Gill Godlonton and Gerrans who handed me a Notice of Appeal in respect of case number HC2792/09 (the provisional order) which he asked me to file in the record. I acted accordingly.

6. That is all I believe is relevant to the handing down of judgment in HC4327/08 and HC2792/09 and the Notice of Appeal SC180/09.”

Mr. Tichaona Murazi, who filed the Notice of Appeal at the Supreme Court, deposed to an affidavit affirming that he filed the Notice before 4pm-at around 3:45pm.

The applicant's deponent, in his founding affidavit under case 3391/09 corroborates the respondent's contention in every material respect when he says that -

“7. On 24 July, in the afternoon, after the judgment had been handed down, the first respondents issued a Notice of Appeal against the judgment(s) of HLATSHWAYO J. The Notice of Appeal is Annexure 'C' hereof.”  

The above sworn statement is in direct contradiction to the applicant's present stance that the Notice of Appeal was issued before the learned judge had issued his judgment.

The applicant has sought to explain the contradiction by saying he was merely making the usual general statement on appeal when he said that the appeal was filed after the learned judge had issued has issued his judgment

I find that explanation incredible and unconvincing considering that the applicant was making a sworn statement. The applicant's deponent is no ordinary citizen – he is a man of the cloth. He knows the value of an oath. He was therefore duty bound to verify and ascertain his facts before taking the oath. The applicant cannot blow hot and cold.

It is stuck with the consequences of his lack of diligence.

In the final analysis I find -

1. That the applicant has failed to prove, on a balance of probabilities, that the appeal was noted before HLATSHWAYO J had delivered his judgment.

The grounds of appeal are far from clear and concise.

The first preliminary point was that the notice of appeal was invalid for want of compliance with Rule 29(1) of the Supreme Court Rules which was incorporated for appeals from the Magistrates to the High Court by the Magistrates Court Amendment Act No. 9 of 1997. It sets out six mandatory requirements which must be stated in a notice of appeal. In the instant case, the notice of appeal fell short of the requirements of Rule 29(1)(a) in that it did not set out in its preamble the date on which the judgment appealed was granted nor the court from which such judgment emanated. All it did was state the name of the magistrate who delivered the judgment and the date of 6 August 2010 that the appellant became aware of the judgment.

It will be recalled that the judgment was granted on 5 August 2010 by the magistrate sitting at Harare Magistrates Court.

Counsel for the respondent submitted, on the authority of Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S), that the notice of appeal was a nullity.

It is correct that the failure to adhere to the strict requirements of Rule 29 fatally affected the validity of the notice of appeal in that case. The rationale for requiring the date of judgment was spelt out by MALABA JA…., in the Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S)…, case…, in these terms -

“The purpose of requiring the date when the decision appealed against to be stated in a notice of appeal is to enable the respondent and the court to determine, ex facie the notice of appeal, whether the provisions of Rule 5 of the [Supreme Court (Miscellaneous Appeals and Offences)] Rules prescribing the time limit in which the appeal should be instituted and the notice of appeal filed delivered and filed, were complied with.”

In the present matter, I decided to condone the failure to rigidly follow the said Rule for two reasons.

The first was that, while on the record cover the trial magistrate endorsed that she granted the order of eviction on 5 August and the handwritten reasons for judgment and the typed judgment was dated 5 August, the typed order has the date stamp of 6 August. Order 31 Rule 1(a) provides that a notice of appeal should be filed within 21 days of the date of judgment. In casu, the notice of appeal was filed on 11 August. I did not believe it would have been in the interests of justice to strike off the appeal for the appellant to apply for extension of time to comply with the Rule and condonation for non-compliance. As regards the failure to indicate the name of the court, I believe that the presence of the trial magistrate's name is in substantial compliance.

The position at law regarding what an Appellate Court may do and when it may interfere with findings of fact made by a trial court is trite.

In Aidan Beckford v Elizabeth Anne Beckford SC25-09 SANDURA JA…, stated that:

“It is quite clear that the learned judge made specific findings of fact with regard to the credibility of the parties and their witnesses. As has been stated in a number of cases, an Appellate Court would not readily interfere with such findings. This is so because the advantage enjoyed by the trial court of observing the manner and demeanour of witnesses is very great.”

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA said:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion…,.”

I find that the court a quo did not make any mistake of fact which amount to a mistake in law.

The grounds of appeal appear to be imputing irrationality to the decision of the court a quo. The appellant seems to be saying that the court a quo misdirected itself on the facts, to such an extent that it amounts to a misdirection of law. In other words, despite the cogency of the evidence before it, the court a quo nevertheless went on to reach conclusions that were not supported by the evidence before it.

This Court is being called upon to decide whether, in the circumstances of this case, having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: see PF ZAPU v Minister of Justice, Legal and Parliamentary Affairs 1985 (1) ZLR 305 (S)…,.

A careful analysis of the findings of the court a quo reveals that this Court cannot arrive at such a conclusion.

In my view, the court a quo correctly and properly examined the evidence before it, and the credibility of the parties' witnesses. It believed the respondents' version.

This Court cannot lightly interfere with the findings of fact of the lower court, which heard the evidence and found the appellant to be dishonest in his version of what transpired.

The procedure for the noting of an appeal against conviction and sentence in the Magistrates Court is provided for in the Appellate Division (Magistrates Court)(Criminal Appeals) Rules, S.I. 504 of 1979, specifically Rule 22(1), which provides, in relevant part:

“The appellant shall, within ten days of the passing of sentence, or, where a request has been made in terms of subrule (1) of Rule 3 of Order IV of the Magistrates Courts (Criminal) Rules, 1966, within five days of receipt of the judgment or statement referred to in that rule, whichever is the later, note his appeal by lodging with the clerk of court a notice in duplicate setting out clearly and specifically the grounds of the appeal and giving for the purpose of any service the address of his legal representative or, if a legal practitioner is yet to be appointed, the address of the appellant.”

The Rule has been interpreted in several judgments emanating from this Court. In S v Jack 1990 (2) ZLR 167 MCNALLY JA spelt out succinctly the requirements of the Rule in a Notice of Appeal thus…,:

“The appellant was unrepresented at his trial, but, on 30 August 1988, a 'notice of appeal' was lodged by his legal practitioner, Mr Mhlanga. The notice of appeal in regard to conviction was fatally defective. As against conviction on each count it contained the following single ground of appeal:

'The magistrate erred in finding the accused guilty despite the fact that the charge was not substantiated.'

This amounts to saying he was not guilty because he was not guilty. It is meaningless. A magistrate who receives such a notice of appeal cannot know what to say in response to it. The notice is not a notice of appeal (at any rate in regard to conviction) because it does not comply with the Rules. Rule 22, contained in S.I.504 of 1979, requires a notice “setting out clearly and specifically the grounds of the appeal.”

It is necessary to draw legal practitioners' attention again to the provisions of this Rule and to the judgment of BEADLE J…, in R v Emerson & Ors 1957 R & N 743; 1958 (1) SA 442 (SR). See also S v McNab SC159-86 and S v Marenga SC32-88:

“It seems to be widely believed that when a client who has been convicted and sentenced, belatedly instructs a legal practitioner, all that is necessary is that a notice of appeal be lodged setting out the most cursory and meaningless grounds with (sometimes) the promise that proper grounds will be substituted when the record is available. This is not so. A notice of appeal without meaningful grounds is not a notice of appeal. Since it is a nullity, it cannot later be amended.”

The learned judge of appeal had occasion, again, to discuss the requirements of Rule 22 in S v Ncube 1990 (2) ZLR 303, where…, he stated:

“The first of these grounds is the only appeal against conviction. I need only quote one passage from R v Emerson, supra, at 748D-E to show that such a ground is unacceptable. BEADLE J, with the concurrence of the Full Bench of the High Court of Southern Rhodesia, said this:

'I do not consider that such general grounds of appeal as “the conviction is against the weight of evidence” or “the evidence does not support the conviction” or “the conviction is wrong in law” are a compliance with the rule. It follows that where the only ground of appeal given in the notice is a vague one of this description the notice of appeal must be considered to be bad. The effect would be the same as if no notice of appeal had been given at all, and the Magistrate concerned would be perfectly within his rights in refusing to give his reasons for judgment on receipt of such a vague notice.'

The notice of appeal against conviction was therefore a nullity.”

It seems that the rider contained in those authorities is still not being heeded by those who practice law in this jurisdiction. A notice of appeal must contain grounds that are clear and specific. If a ground of appeal is general then it cannot be a valid ground of appeal. The learned judge in the court a quo did not state that grounds two to eight were invalid, instead, she held that they were amplifications of the first ground.

I agree.

An examination of each of the grounds illustrates the failure on the part of the appellant's legal practitioner to comply with the Rule.

The grounds of appeal filed in the High Court, and which the learned judge had to consider in the application for bail, were the following:

1. The court a quo seriously misdirected itself in convicting the appellant yet the circumstantial evidence adduced on behalf of the State did not lead to one conclusion that the appellant committed the offence but to different possibilities.

2. The learned magistrate erred in simply ruling out real possibilities as fanciful and far-fetched and making too many assumptions which were not supported by the evidence in any way.

3. The learned magistrate seriously misdirected himself in simply dismissing as irrelevant vital evidence that when the motor vehicle was stolen the appellant was within the premises hence he could not have stolen the motor vehicle in question, and, further that at one of the meetings it had been discussed that the motor vehicle in question had been seen somewhere.

4. The court a quo clearly failed to analyse the evidence before it but simply relied on unsubstantiated assumptions which were not supported by the facts in any way.

5. The learned magistrate erred in placing too much reliance on the fact that the appellant was the one in charge of the keys to the motor vehicles and hence he ought to be held responsible for the stolen motor vehicle yet the evidence did not prove the guilty (sic) of the appellant as required by law.

6. The court a quo erred in simply accepting the evidence of the State witnesses and just dismissing the appellant's testimony.

7. The court a quo erred in law and in fact by failing to properly apply its mind to the requirements that have to be met when relying on circumstantial evidence. If it had done so it ought to have acquitted the appellant.

8. The court a quo clearly misdirected itself by dismissing legitimate evidence and giving undue importance on circumstances which were not irreconcilable with innocence.

I find merit in the submission made by counsel for the respondent that the fact that an appellant has raised numerous grounds of appeal does not entail that the appellant has prospects of success on appeal.

The grounds of appeal in this matter do not address the merits of the application for condonation or the correctness of the exercise of its discretion by the court a quo. Moreover, these grounds of appeal are not only inelegantly framed but also incorrigibly incoherent. 

The second preliminary issue raised by the first respondent was that the application was defective by reason of its non-compliance with Rule 241(1) of the High Court Rules which requires the applicant to set out the facts of his application in Form 29B.

The grounds of appeal set out by the appellants in their notice of appeal are far from clear and concise as required by the Rules of this Court. The Court was at pains to determine what the grounds of appeal were and counsel for the appellants appeared to be equally confused. This type of notice of appeal, usually three or more pages long with argument and reasoning, which is better tendered at the hearing, is becoming the rule rather than the exception and legal practitioners are warned that such notices will be struck off, with an appropriate order of costs, for non-compliance with the Rules of this Court.

Counsel for the appellants…, sought, at the outset of the hearing of the appeal, to amend the grounds of appeal by adding an additional ground which he claimed would read:

“That the court a quo misdirected itself in making an order against the second appellant in favour of the respondent since the second appellant was the respondent's partnership.”

He submitted that this was equivalent to a point of law being taken on appeal; the point of law being that the respondent could not sue its own partnership. He submitted that no prejudice would be suffered by the respondent even though the point was not taken or canvassed at the hearing as the respondent could advance its arguments before the Court at the appeal hearing. 

The application was opposed by counsel for the respondent on the grounds that the respondent would suffer prejudice if the application were to be allowed.

The Court was of the view that the criteria for a successful application of this nature were not met. Since the point of law was not canvassed at the hearing, a consideration of the merits of it at this stage would, in our view, involve unfairness to the respondent.

See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

WHETHER THE NOTICE OF APPEAL IS LACKING IN PRECISION AND THEREFORE NULL AND VOID.

Rule 32 of the Rules of the Supreme Court, 1964 requires that the notice of appeal shall state the grounds of appeal concisely.

The position is now well established that a notice of appeal must comply with the mandatory provisions of the Rules and that if it does not, it is a nullity and cannot be condoned or amended.

See Jensen v Acavalos 1993 (1) ZLR 216 (S).

I have, earlier in this judgment, cited verbatim the grounds of appeal filed by the appellant. Whilst one must accept, as I do, that some of the grounds are sufficiently clear to enable the respondent to appreciate the basis upon which the order of the court a quo is sought to be impugned, there can be no doubt that grounds 7 and 8 in particular offend against the requirement that these must be clear and concise. I am inclined to agree with remarks by the respondent that:

“There is nothing concise about these grounds of appeal…,. The grounds stretch over five pages and contain, in certain instances, quotations from letters exchanged between the parties.

…,. There is indeed a difference between the grounds of appeal and the heads filed for this appellant, the difference being that the heads are a lot more concise than the grounds of appeal.”

Indeed, counsel for the appellant conceded that it was unnecessary to quote, in the grounds of appeal, passages from the correspondence exchanged between the parties.

I am satisfied that grounds seven and eight are not clear and concise. In this regard, I can do no better than to quote the remarks of KORSAH JA in The Master of the High Court v Lilian Grace Turner SC77-93 in which the learned Judge of Appeal stated….,:

“…, the prolixity of each ground of appeal offended Rule 32 of the Rules of the Supreme Court, which requires that “the grounds of appeal shall be set forth concisely” in separate numbered paragraphs. For example, the first ground in the notice of appeal scans two foolscap pages and, as well as being unnumbered, is argumentative….,.

It goes without saying that by concise is meant brief but comprehensive in expression…,.”

Attention is also drawn to the decision of this Court in River Ranch v Delta SC38-10.

Whilst ground 1 is somewhat vague, one can discern that what is attacked is the decision by the court a quo to decide to hear the matter on the basis of urgency. I would give the appellant the benefit of the doubt insofar as this ground of appeal is concerned.

Insofar as ground 7 is concerned, as there has been no compliance with the Rules, it becomes inevitable that it be struck off from the notice of appeal. The first two paragraphs of ground 8 sound like heads of argument. That portion of ground 8 must also be struck off with the result that that ground will read:

“more specifically, the learned judge should have found:-

(a) That the letter was an unequivocal expression by the first respondent…,.”

WHETHER THE APPEAL IS DIRECTED AT THE REASONS RATHER THAN THE ORDER.

That an appeal must be directed at the order made and not the reasons thereof is now well-established. 

The authority for this proposition, if any is required, is The Civil Practice of the Supreme Court of South Africa by HERBSTEIN & VAN WINSEN, 4^th ed…,.; Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S)…,.

In the Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) what was sought to be challenged was not the order but the reasoning that led to the order. There was no request that the order made consequent to that reasoning should be set aside. I am satisfied that the principle enunciated in the above case is, in general, correct, although recently I had occasion to suggest, in Alterm Enterprises (Pvt) Ltd t/a Ruwa Furnishers v John Sisk and Son (Pvt) Ltd SC04-13, that there may well be instances, such as where a cross-appeal is noted, where it might be necessary to attack the reasoning itself rather than the order.

The circumstances of the present case are, in my view, different.

As counsel for the appellant correctly pointed out, it is the order that is challenged but in order to do so the reasoning of the learned judge is challenged as the basis of the challenge to the order. At the end of the day the appellant would want to have the order set aside.

It seems to me that the principle that comes out in the case of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is not always fully appreciated - even amongst lawyers. 

That case is not authority for the proposition that in an appeal one should not attack the reasons for the order. What that case says is that an appeal should be directed at the order and not simply the reasons.  Quite clearly, if the intention is not to have the order interfered with in any way, then no purpose would be achieved by attacking the reasons thereof. It goes without saying that in order to attack the order made one must attack the reasoning process leading to the order. In other words, in order to attack the order made, one must attack the findings made that justify the order made.

I am satisfied in the present case that the appeal has sought to attack the order given but in order to do so has attacked the reasons thereof. There is nothing wrong with such an approach.

Additionally, counsel for the respondents submitted that the notice of appeal is also incompetent because it does not state the date when leave to appeal was granted, as is required by Rule 29(1)b) of the Rules of this Court.

Secondly, the relief sought by the appellant is for the dismissal of the points in limine raised by the respondents in the court below and for the application before that court to be granted in terms of the draft order. This, it is submitted, is incompetent because the substantive merits of the relief sought were not considered or determined by that court.

Turning to the second point, it is trite that an appeal must be directed against the actual decision that is appealed against.

However, it would be premature for us to deal with this aspect of the appeal at this stage. Properly regarded, it cannot be disposed of as a preliminary issue. Rather, it is a matter for determination as and when the appeal is heard on its merits.

In the result, both points in limine taken by the respondents are hereby dismissed with no order as to costs. 

However, more importantly, I dismissed the relief for an interdict because it was not a competent relief.

Paragraph 4 of the draft order reveals that the interim interdict was relief pending the hearing of the appeal in case no. SC 293/11. A perusal of the Notice of Appeal in that case reveals that the interdiction of the sale of the shares was not an issue to be determined in that appeal. The Notice of Appeal reads as follows:

“TAKE NOTICE that, leave to appeal not being required, the appellants hereby appeal against the whole judgment of the High Court (the Honourable Mr Justice UCHENA in Chambers) in case no. HC11119/2011 which was given at Harare on 18 November 2011.

FURTHER TAKE NOTICE that the appellants' grounds of appeal are as follows:

1. The learned Judge a quo misdirected himself by rejecting as invalid the Certificate of Urgency duly signed by Tecla Mapota on the basis that some statements in it were similar to those in a Certificate of Urgency filed in case no. HC10410/2011.

2. The learned Judge a quo misdirected himself by making a factual finding that Tecla Mapota did not apply her mind to the question of urgency on the basis of submissions made from the bar and in the absence of any evidence to that effect.

3. The learned Judge a quo misdirected himself, in any event, by determining that the fact of common passages or statements being found in the two Certificates of Urgency invalidated Tecla Mapota's certificate.

4. The learned Judge a quo misdirected himself as to the legal effect of the similarities between some statements and passages in Tecla Mapota's Certificate of Urgency and that of Sarudzayi Njerere.

5. The learned Judge a quo misdirected himself by ignoring that the similarities in some statements in the Certificates of Urgency were explicable by reference to the similarities in the facts and circumstances as set out in the affidavits in both HC11119/2011 and HC10410/2011.

6. The learned Judge a quo misdirected himself in coming to the conclusion that there was an unexplained delay, starting from March 2011, when the facts clearly showed that it was not necessary to institute proceedings then.

7. The learned Judge a quo misdirected himself by determining that the  appellants should have instituted the urgent application to stop transfer of shares even before Justice MAKONI had given her  judgment  in  case  no. HC10410/2011.

WHEREFORE the appellants pray that the appeal may be allowed with costs and for the following relief to be granted:

(a) The judgment of the court a quo be and is hereby set aside;

(b) The matter be and is hereby remitted to the High Court for hearing on the merits;

(c) The costs of the appeal shall be paid by the first, second and third respondents jointly and severally the one paying the others to be absolved.

FURTHER TAKE NOTICE that the appellants hereby tender security for the respondents' costs in the appeal and undertake to pay the costs for the preparation of the record.”

Quite clearly, the Supreme Court, in case no. SC293/11 was seized with procedural issues. The transfer of the Pelhams Limited shares was not an issue that fell for determination in the appeal. The Notice of Appeal relates entirely to the issue of whether the court a quo should have heard the matter on an urgent basis or not. The court a quo did not make a determination on the transference of the shares, in which case there could be no appeal against a non-existent determination.

In the result, I came to the conclusion that it was nonsensical to grant an interdict pending the determination of an issue which the Supreme Court was not going to determine, namely, the determination of the transference of the shares. (Judgment  no. SC12-13 did not address or determine the issue of the transference of the shares.)

Regarding the rest of the parties' movable assets, it is evident from the evidence before the court that the appellant did not claim 50% of the value thereof. 

He is only doing so now - on appeal.

This is something that, procedurally, and as a matter of law, he should not do.

As can be seen from Annexure “B” to his Declaration, the appellant claimed eight (8) specific items of movable assets, and listed almost double that number of items, as those that he wished to be awarded to the respondent. Even though the values of the various items of property are not indicated, it is safe to assume, upon a prima facie view, that what the appellant claimed did not constitute 50% of the value of the combined movable assets.

In any case, in the joint pre-trial conference minute, it is stated that the plaintiff, by consent of both parties, was to take one 4 plate Superior stove. The respondent was to take the bulk of the movable assets, amounting to some fifteen (15) items. The pre-trial conference minute shows that only the moveable items listed below were contested;

(i) The two motor vehicles;

(ii) 1 DC Radio with speakers;

(iii) 1 home entertainment radio; and

(iv) 2 refrigerators.

The learned judge a quo specifically dealt with the two motor vehicles, as outlined above, as well as the two refrigerators. While the CD radio with speakers and the home entertainment radio were not specifically mentioned by the court a quo, its order, in relation to the movable assets, can only be read to suggest that these two items of property were added to the list of items which, by consent of the parties, were to be awarded to the respondent.

It has already been mentioned that, in arriving at the awards that he made, the learned judge a quo exercised his discretion consequent upon an assessment of the evidence placed before him. The appellant not having shown that such discretion was improperly exercised, I find he has accordingly not proved a case for this court to interfere with such discretion.

Quite apart from the merits, the procedural point that arises on appeal is whether the invalidity of the four agreements was properly pleaded before the court a quo and duly determinable by that court in light of the original pleadings and the relief originally sought by the appellants. 

The appellants' argument, in essence, is that the entire transaction was a sham disguised as a sale of shares and immovable properties. However, this argument sharply contradicts their claim for the transfer of the properties. I fully agree with the submission by counsel for the respondents that the appellants should have pleaded the invalidity of all four agreements from the outset. They did attempt to amend their pleadings to that effect at various stages, but, eventually, withdrew their proposed amendments and proceeded to trial on the issues agreed for determination before the court a quo.

The origin of the appellants' claim lies in the letters from their lawyers to Allen Wack & Shepherd (Pvt) Ltd, dated 17 and 18 June 2004, exercising their options to purchase the two properties in terms of clauses 2 and 6 of the Buyback Agreements concluded on 16 June 1999. Their summons, as amplified in the declaration, is predicated on the transfer of both properties in terms of those agreements, which they aver were wrongfully and unlawfully cancelled by the respondents on 4 October 2004. It is therefore clear that their pleadings and claim were founded on the specific performance of the Buyback Agreements on the terms and conditions specified therein. From the outset, their claim was based on the validity of those agreements. They did not aver that the agreements were shams but proceeded on the basis that they were valid and enforceable.

Equally significantly, the relief that they seek on appeal, as per their notice of appeal, is that judgment be entered in their favour as prayed for in the summons, viz. transfer of the two properties in terms of the Buy Back Agreements.

In short, the disposition of this appeal must be confined to their cause of action as formulated in their pleadings. 

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.

The factual circumstances of this matter are common cause.

The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He was dismissed from employment for disclosing confidential information during conciliation proceedings. He challenged his dismissal on the basis that it was an unfair dismissal and noted an appeal to the Labour Court. The Labour Court dismissed the appeal on the main ground that the appellant did violate the respondent's Code of Conduct in that he did not follow the laid down procedures on the obtaining and disclosure of confidential information.

The appellant was aggrieved by the decision of the Labour Court and has approached this Court on the grounds summarised below;

1. The court a quo misdirected itself and erred at law entirely in not finding that the disciplinary procedures set down in the Code of Conduct of the respondent were not followed thereby rendering the dismissal both substantively and procedurally wrong.

2. The court a quo further erred in rejecting the appellant's defence that the disclosure of the company information was not in breach of section 3(4) of Schedule 1 of the Employment Code of Conduct for the respondent as read with Part C 10.2.

3. The court a quo erred and misdirected itself at law in finding that the appellant was not unfairly dismissed.

Procedural Irregularities

The Labour Court did not address the issue of procedural irregularities in its judgment even though it had been raised as a ground of appeal.

Be that as it may, the appellant avers that the hearing authority that summarily dismissed him was not properly constituted, a circumstance that he argues rendered the disciplinary proceedings a nullity. The appellant, however, does not elaborate on this averment either in his grounds of appeal or in his heads of argument.

As correctly contended for the respondent, it is not enough to merely allege, as the appellant does in his heads of argument, that:

“In terms of the Code of Conduct for the respondent's entity, the hearing authority must be either, a Line Supervisor, Section Head, or Head of Department. This was not the composition of the Hearing Authority that dismissed the appellant.”

The appellant should have explained in what way he perceived the Code of Conduct to have been violated, at what stage of the proceedings this might have happened, and who, in his opinion, should have properly constituted the disciplinary authority.

The respondent, in any case, disputes that the disciplinary authority was not properly constituted....,.

I find..., that the appellant has failed to place before the court sufficient evidence for a proper determination of whether or not there was a fatal irregularity in the conduct of the disciplinary proceedings. The onus to prove his case on this point lay on the appellant, and it is abundantly clear that he has failed to discharge it.

THE METHOD OF PAYMENT

The appellant has submitted that it was wrong of the court a quo to have determined this matter without enquiring into the manner in which the respondent had paid for Fortune's study at the University of Cape Town.

This submission need not detain this Court for two reasons;

(i) Firstly, it is not in dispute that the disbursements to the University of Cape Town could not have been made in the now defunct Zimbabwean Dollar for that is not the currency in use in South Africa.

(ii) Secondly, the fact that the money had been paid was never made an issue throughout the pleadings. Consequently no evidence was deemed necessary to prove either the method of payment or the quantum.

In these circumstances, it is improper and perhaps unfair on the part of the appellant to criticise the court a quo for not determining a matter that was not before it.

Except where both parties have fully canvassed an issue not covered by the pleadings, and there is no unfairness to either party, the position may now be taken as settled that a trial court must confine itself to the issues raised in the pleadings before it. In this regard, the remarks by the authors JACOB and GOLDREIN: Pleadings: Principles and Practice…, cited with approval in Jowel v Bramwell-Jones & Ors 1998 (1) SA 836, 898 are worth repeating:-

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings….,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation…,. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda of the trial by their pleadings and neither party can complain if the agenda is strictly adhered to…,.”

 WHETHER THE RESPONDENT'S CLAIM HAD PRESCRIBED

In his heads of argument, the appellant has submitted that the respondent's claim had prescribed. In particular, the appellant has argued that since the bursary was withdrawn in October 1999, payment would have become due in terms of the agreement at that stage and the right to institute an action for the recovery of the money would have prescribed in October 2002 – almost a year before summons was issued by the respondent in September 2003.

For the reasons that follow, I am of the view that this ground of appeal need not detain this Court either.

The defence of prescription must be raised in pleadings in the trial court and not for the first time on appeal. There may be need for the other party to explain the reason for the delay and to prove when the debt, as defined, became due….,.

This ground of appeal cannot be raised for the first time on appeal and must therefore fail….,.

WHETHER THE AGREEMENT WAS MATERIALLY AND PREJUDICIALLY ALTERED

This issue was never raised in the court a quo. Consequently, the court a quo did not deal with it.

Whether the obligations between the parties were materially and prejudicially altered would have been a question of fact. The question cannot be raised for the first time on appeal before this Court.

The authorities cited and relied on by the court a quo (e.g. Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H) arose from labour disputes, and, lastly, the appellant himself relied on one such 'ordinary' civil judgment for its contention that there are exceptions to the general principle that the courts should not accept new points raised for the first time on appeal. See Goto v Goto 2001 (2) ZLR 519 (S); and Austerlands (Pvt) Ltd v Traded and Investment Bank Ltd & Others 2006 (1) ZLR 371 (S)…,.

It is therefore rather contrary of the appellant to impugn the court a quo's reliance on similar authorities.

The appellant has, in any case, not alleged any gross misdirection on the part of the Labour Court in drawing guidance from authorities other than those dealing exclusively with labour matters.

In the final analysis, it is the finding of this Court that the appeal lacks merit and ought to be dismissed.

It is, in the result, ordered as follows;

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order.

Before I consider the merits of the appeal, it is pertinent to address two procedural issues arising from the papers before the court:

(i) Firstly, it was noted, that, the notice of appeal was filed eighteen days after leave to appeal was granted by this court, instead of the fifteen days required by Rule 5(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

However, upon inquiry, counsel for the appellant submitted, that, no hearing for the application for leave to appeal was held since the application was granted on the basis of the papers before the judge in question. The parties only got to hear of the order on a later date.

It is, in my view, important to point out in this respect, that, when an order is made in chambers following a determination of the matter on the papers before the judge, and in the absence of the parties, the Registrar should promptly notify the parties of the order.

This is particularly so, since the dies induciae for any subsequent filing of papers in the matter would start to run from the date of the order, not the date on which the order was served or came to the notice of the parties concerned.

In casu, it was the court's view that since the appellants could not be faulted for the delay in noting the appeal, such late noting could properly be condoned.

The second preliminary point raised was that the appellant's grounds of appeal were meaningless and did not comply with Rule 32 of the Supreme Court Rules. 

Counsel for the respondent submitted that on that basis the appeal ought to be struck off the roll. 

Counsel for the appellant conceded that the first ground of appeal was meaningless. He, however, submitted that the other grounds in the notice of appeal could not be impugned. 

It was the court's view that the concession was properly made and decided to proceed to hear the appeal on the remaining grounds.

The third preliminary point raised by the respondent was that the appellant's notice of appeal was fatally defective.

It was submitted that since the decision which was the subject of the appeal was one premised upon the use of discretion by the court a quo, the appellant ought to have alleged that there was a gross misdirection by the judge in the exercise of the discretion in the grounds of appeal. The respondent relied on the requirement, as stated in some cases, that the grounds of appeal must allege a gross misdirection in circumstances wherein an appeal is directed towards the failure of a court to apply its discretion properly.

In the English case of Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 2 All ER 680 (1948) 1 KB 223, upon which the respondent relied, it was noted that the appellant's grounds of appeal ought to allege that the court exercised its discretion unreasonably.

It seems to me, on an examination of the authorities in our jurisdiction, that this principle is not applied so strictly. This question was comprehensively addressed by this Court in the case of Jainos Zvokusekwa v Bikita Rural District Council SC44-15 where the court noted that:

“In my view, the remarks made in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision. One must, I think, be guided by the substance of the grounds of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner. If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper merely because the words 'there has been a misdirection on the facts which is so unreasonable that no sensible person…, would have arrived at such a decision' have not been added thereto. If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective. After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised. See, for example, the case of Sable Chemical Industries v David Peter Easterbrook SC18-10 where it was noted that the words 'erred on a question of law' are sometimes included in grounds of appeal but without any question of law actually being raised.”…,.

The above-cited case sets out the approach to be taken in this respect.

An examination of the appellant's grounds of appeal, when one has regard to the above remarks, leaves one in no doubt that they are concise and reflect the points of law being challenged. 

I thus find that the point raised has no merit and is hereby dismissed.

After hearing argument on the preliminary objections raised by the respondent we reserved our judgment. The objections raised the issue whether the notice of appeal complied with Rule 29(1)(d) as read with Rule 31 of the Rules of this Court.

The notice of appeal was filed on 17 June, 2016.  It spanned 11 pages of which 6 pages comprised of 18 grounds of appeal. The judgment appealed against consists of 11 pages.

Upon receipt of the appellants' heads of argument filed on 16 September 2016, the respondent filed and served its heads of argument on 23 September 2016. It raised the point, in limine, that the appeal was fatally defective for non-compliance with Rule 29(1)(d) and Rule 32(1) which, read together, require grounds of appeal to be concise. It alleged that the grounds of appeal are anything but concise but instead are “unnecessarily long, incoherent and unnecessary prolix.”

It was prayed that the appeal be struck off the roll with costs.

On the 10 November 2016, the respondent filed a notice of objection in terms of Rule 41 of the Supreme Court Rules. In this notice, the appellants were advised of the respondent's intention to 'take a preliminary objection relating to the validity of the notice of appeal.'

The notice was directed to the Registrar and to the appellants' legal practitioners.

On the 14 November 2016, the eve of the hearing of the appeal, the appellants filed supplementary heads of argument in response to the respondent's objection. In these heads, they alleged that the objection was frivolous and vexatious, denied that the grounds were not clearly and concisely framed but conceded they were multiple 'because of the nature of the judgment of the court below.'

They charged the respondent with adopting the wrong procedure by filing a notice instead of proceeding by way of court application. They alleged that prejudice was caused to them because of the procedure adopted by the respondent. Procedure by court application, they contended, would have required the respondent to specify the offending grounds and the manner in which it is alleged they infringed the Rules. The appellants would, in the event of the adoption of that procedure, have been given sufficient time to prepare a response in their heads of argument. They submitted that the respondent was not embarrassed by, nor did it point to any ambiguity in, the grounds of appeal. Consequently, the objection amounted to a classical abuse of the procedure on preliminary objections, was devoid of merit, and ought to be dismissed with costs on the punitive scale of legal practitioner and client.

In argument presented before us, counsel for the appellants remained adamant that the grounds of appeal, though multiple, were clear and concise. He submitted that even if they were inelegantly phrased, which was not conceded, that fact did not render them a nullity.

Whether the grounds of appeal comply with the Rules

The relevant provisions of Rule 29 and Rule 32 are set out below;

“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)…,.

(f)…,.

32. Grounds of appeal

(1) The grounds of appeal shall be set forth concisely and in separate numbered paragraphs.”…,.

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).

It is not for the Court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the Court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. 

That is not so in the instant matter.

The grounds of appeal are multiple, attack every line of reasoning of the learned judge, and do not clearly and concisely define the issues which are to be determined by this Court.

In Sonyongo v Minister of Law and Order 1996 (4) SA 384, LEACH J was dealing with an application for leave to appeal in terms of the Rule 49(1)(b) of the Uniform Rules of Court of South Africa. That Rule required the grounds of appeal to be set out in the application. The learned Judge, at p385E - 386A of his judgment, said the following:

“I am not aware of any judgment dealing specifically with grounds of appeal as envisaged by Rule 49(1)(b); however, Rule 49(3) is couched in similar terms and also requires the filing of a notice of appeal which shall specify 'the grounds upon which the appeal is founded.' In regard to that subrule, it is now well established that the provisions thereof are peremptory and that the grounds of appeal are required, inter alia, to give the respondent an opportunity of abandoning the judgment; to inform the respondent of the case he has to meet; and to notify the Court of the points to be raised. Accordingly, insofar as Rule 49(3) is concerned, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet – see, for example, Harvey v Brown 1964 (3) SA 381 (E) at 383; Kilian v Geregsbode, Uitenhange 1980 (1) SA 808 (A) at 815 and ERASMUS, Superior Court Practice B1-356-357 and the various authorities there cited.

It seems to me that, by a parity of reasoning, the grounds of appeal required under Rule 49(1)(b) must similarly be clearly and succinctly set out in clear and unambiguous terms so as to enable the court, and the respondent, to be fully and properly informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal. Just as Rule 49(3) is peremptory in that regard, Rule 49(1)(b) must also be regarded as being peremptory. In my view, the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice. But that is not the point – the point is that the notice must clearly set out the grounds and it is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out. On this basis alone the application seems to me to be fatally defective and must be dismissed.”…,.   

In my view, the emphasised portions of the above remarks, with which I respectfully agree, are equally applicable in the present matter.

Great care should be taken in drafting a notice of appeal to ensure that the grounds of appeal concisely and clearly set out the issues to be determined by the appeal court and the respondent is properly informed of the case he has to meet on appeal.

For the above reasons, I am constrained to agree with counsel for the respondent that the notice of appeal does not comply with the Rules of this Court and ought to be struck out….,.

Accordingly, it is ordered as follows:

1. The preliminary objection is upheld.

I now turn to deal with the next issue requiring determination, namely, the meaning of “clear and concise” within the context of Rule 29 of the Rules of this court.

GROUNDS MUST BE CLEAR AND CONCISE

Rule 32 of the Rules of this court provides that the grounds of appeal contained in a notice of appeal must be clear and concise.

Many decisions of this court, and the courts in South Africa, have, over a long period of time, explained what is meant by the term, but this notwithstanding, many lawyers, including very senior ones, continue to experience considerable difficulty in properly formulating grounds of appeal that comply with the Rule. I think it is necessary to trace the various decisions of the courts on this aspect over the years, both in South Africa and this country.

In Hendricks v Wilcox 1962 (1) CPD 304, the appellant had filed a notice of appeal reading as follows: -

“Be pleased to take notice that an appeal is hereby noted against the judgment of absolution from the instance granted by the above honourable court to the defendant…, for the reason that the judgment was against the weight of the evidence…,.”

The court ordered that the appeal be struck off the roll for failure to comply with the Rules. In striking out the appeal, the court noted:-

“…, it is clear that a notice of appeal which sets out as a ground of appeal merely that the judgment is against the weight of the evidence is, generally speaking, bad…,. The magistrate made a number of findings of fact on the evidence and then made a further finding that neither party had been negligent. It is impossible to deduce from the notice of appeal which of these findings is being challenged.

…,.  I have come to the conclusion that the notice of appeal is bad. There is abundant authority to the effect that such a notice cannot be amended…,.”

In S v McNab 1986 (2) ZLR 280 (SC), the only ground of appeal before this court was that:

“The learned trial magistrate erred in fact and in law in holding that the State had proved the appellant was so drunk as to be incapable of having proper control of his motor vehicle.”

This court held that the above ground did not comply with the Rules of Court, and, more specifically, that the notice of appeal did not set out clearly and specifically the grounds of appeal. The court remarked at page 282 F-G:-

“…, there must be stated in the Notice of Appeal 'a precise statement of the points on which the appellant relies.'

A statement that the magistrate 'erred in fact and in law in holding that the State had proved appellant was so drunk to be incapable of having proper control of his motor vehicle' is not precise enough…, it does not tell the respondent or the magistrate what it is that is being attacked. The respondent is required to prepare his answer to the allegations made in the Notice of Appeal…,.”

In State v Jack 1990 (2) ZLR 166 (SC), the single ground of appeal on each of the two counts in respect of which the appellant had been convicted read:

“The Magistrate erred in finding the accused guilty despite the fact that the charge was not substantiated.”

The Supreme Court concluded that the above ground was not valid. The court, per McNALLY JA, remarked at page 167 D-G:-

“This amounts to saying he was not guilty because he was not guilty. It is meaningless. A magistrate who receives such a notice of appeal cannot know what to say in response to it…,. It is necessary to draw legal practitioners' attention, again, to the provisions of this Rule and to the judgment of BEADLE J (as he then was), in R v Emerson & Ors 1957 R & N 743; 1958 (1) SA 442 (SR)…,.

It seems to be widely believed that when a client who has been convicted and sentenced belatedly instructs a legal practitioner, all that is necessary is that a notice of appeal be lodged setting out the most cursory and meaningless grounds with (sometimes) the promise that proper grounds will be substituted when the record is available.

This is not so.

A notice of appeal without meaningful grounds is not a notice of appeal. Since it is a nullity, it cannot later be amended.”

In S v Ncube 1990 (2) ZLR 303 (SC), the only ground of appeal against conviction read as follows:-

“The learned magistrate erred in accepting the complainant's evidence.”

That ground was held to be unacceptable. McNALLY ACJ…, had the following to say at 303 G and 304 C-D:-

“It is not usual to write a judgment in respect of a matter which has been struck from the roll. This judgment is written for the guidance of practitioners and to serve as a warning to those who have not pondered the lesson of R v Emerson 1957 R & N 743 (SR)…,.

…,. I need only quote one passage from R v Emerson, supra, at 748 D-E, to show that such a ground is unacceptable. BEADLE J, with the concurrence of the full Bench of the High Court of Southern Rhodesia, said this;

'I do not consider that such general grounds of appeal as 'the conviction is against the weight of the evidence' or 'the evidence does not support the conviction' or 'the conviction is wrong in law' are a compliance with the Rule. It follows that where the only ground of appeal given in the notice of appeal is a vague one of this description the notice of appeal must be considered to be bad. The effect would thus be the same as if no notice of appeal had been given at all…,.'”…,.

In Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division), the learned judge (LEACH J) commenting on the requirement that grounds of appeal must be clearly and succinctly set out in clear and ambiguous terms to enable the court, and the respondent, to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet, stated…, that:-

“…, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet…,.”

And, further, at 386 A-B, that:-

“…, the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not the point – the point is that the notice must clearly set out the grounds and it is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out….,.”…,.

In Arnold Cephas Kwanai v The State SC12-97, the only ground of appeal against conviction read as follows:-

“The learned magistrate erred in convicting the accused person in the absence of any concrete evidence showing beyond a reasonable doubt…, that he committed the offence.”

This court turned down a request to amend the notice of appeal on the ground that it was a nullity. It was a nullity because it did not set out 'clearly and specifically the grounds of appeal.'

In Van de Walt v Abreu 1994 (4) SA 85 (W), STEGMANN J made an exhaustive review of case law relating to notices of appeal from the Magistrates Court in South Africa. That case is authority for the proposition, based on the Magistrates Court Rules of South Africa, that there are two distinct requirements, both of which have to be satisfied, for a proper notice of appeal disclosing a valid ground of appeal;

(i) Firstly, the notice must specify details of what is appealed against (i.e. the particular findings of fact and rulings of law that are to be criticized on appeal as being wrong); and

(ii) Secondly, the grounds of appeal (i.e. it must indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong. For example, because the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary; or because it is inconsistent with the oral evidence of one or more witnesses; or because it is against the probabilities.

In Fraderick Chimaiwache v The State SC18-13, GOWORA JA made the following pertinent remarks…,:-

“It seems that the rider contained in those authorities is still not being heeded by those who practice law in this jurisdiction. A notice of appeal must contain grounds that are clear and specific. If a ground of appeal is general, then it cannot be a valid ground of appeal…,.”

In Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd (2) Trusto Group International (Proprietary) Ltd), SC43-13, I had occasion to cite, with approval, the remarks of KORSAH JA in The Master of the High Court v Lilian Grace Turner SC77-93 that:

“…, by concise is meant brief but comprehensive in expression…,.”

In John Chikura N.O. & Anor v Al Shams Global BVI Limited SC17-17, the notice of appeal filed with this court spanned eleven pages. Of those pages, six comprised eighteen grounds of appeal. The judgment appealed against consisted of eleven pages. In holding that the grounds of appeal were unnecessarily long, incoherent and prolix, this court, after quoting the remarks of LEACH J in Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division), struck the matter of the roll, remarking, at pages 3-4 of the cyclostyled judgment:

“It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal…,. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this court…,.”

I have quoted the above remarks made by eminent judges, both in this jurisdiction and South Africa, in order to stress, once again, the need for legal practitioners to pay due regard to the requirement that grounds of appeal must be clear and concise and what the term “clear and concise” signifies. Sadly, as the facts of this case, and many others, show, most legal practitioners still do not know how to properly formulate grounds of appeal that comply with the Rules of this Court. 

I now turn to the grounds of appeal noted in the present case.

THE GROUNDS OF APPEAL

There can be little doubt that, in general, the grounds of appeal noted in this case, are vague in nature and cannot be said to be clear and concise. In some instances, the grounds purport to go outside the Stated Case, and, in other instances, attempt to impugn the final decision made by this court in terms of which the appellant was ordered to return all the church assets to the respondent.

A short examination of each of the grounds is called for.

Ground 1 is couched; “The learned judge erred in dismissing the appellant's version in its totality.”

This is obviously meaningless. Neither this court, nor the respondent, would have any idea what it is that the appellant is attacking.

Ground 2 is also meaningless. It states; “The appellant, together with the other trustees, purchased the shares and later invested them. The appellant never lost control of the shares and other assets, both movable and immovable.”

This ground is more of a statement of fact and its meaning is anybody's guess. It begs the question: so what?

The third ground is equally vague. One does not know what point the appellant seeks to make. That ground reads:

“The court erred in failing to appreciate that the issue which was determined by the Supreme Court was between the Diocesan Trustees for the Diocese of Harare against the Church of the Province of Central Africa and that it was not between the appellant and the Church of the Province of Central Africa.”

Grounds 4, 5, 7, 8 and 9 and 11 all raise the same issue, namely, that, pursuant to the order by HLATSHWAYO J and CHIDYAUSIKU CJ, the appellant had the right to use the church assets and that in doing so, he sold some of the assets in order to maintain and preserve the remaining assets.

Ground 10 is vague, especially when one has regard to the remarks by the court a quo at page 8 of the cyclostyled judgment that;

“The timing of the sale of the shares, after August 2011, may point to a design to make something out of the property of the plaintiff before the definitive Supreme Court determination of the dispute; that is the furthest I am prepared to go. I am not persuaded that it is enough to attract the application of the value at the time of judgment.”

Grounds 13, 14 and 15 all deal with the same aspect, namely, that the court a quo was wrong in failing to find that the value of the shares was US$270,000= i.e. the price at which they were sold.

Ground 16 seeks to attack the interpretation of paragraph 8 of the Stated Case, and, in particular, whether the parties were agreed on the three values itemised therein.

Having found that some of the grounds are lacking in precision, it becomes necessary to determine the fate of the other grounds that sufficiently identify the basis upon which the judgment of the court a quo is impugned.

The approach adopted by this court in S v Ncube 1990 (2) ZLR 303 (SC), and other cases, is that where a court is faced by some grounds of appeal that are not clear and concise and by others that are, the court should proceed to determine the appeal on the basis of the valid grounds of appeal.

In that case, this court cited with approval remarks in R v Emerson 1957 R & N 743 (SR) that where the only ground in the notice of appeal is vague, then the appeal is a nullity.

The case of Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division), cited with approval by this court in the recent decision in John Chikura N.O. & Anor v Al Shams Global BVI Limited SC17-17, is authority for the proposition that grounds of appeal that are prolix do not comply with the Rules of this Court. The word prolix derives from the Latin word “prolixus”, which means extended or copious. A speech or writing is said to be prolix if it contains too many words or is tideously lengthy. It connotes unreasonable and tideous dwelling on detail. It also means long winded; verbose; rambling. It follows from this definition that grounds of appeal that are prolix cannot be clear or concise and are therefore a nullity.

I agree with the remarks in John Chikura N.O. & Anor v Al Shams Global BVI Limited SC17-17 that where grounds of appeal are prolix, it is not for this court to sift through numerous words in search of a possible valid ground.

In my view, however, where, in the same notice of appeal, there are grounds that are prolix and there are others that are clear and concise, then such appeal cannot be said to be fatally defective in its entirety. In these circumstances, the appeal would fall to be determined on the grounds that are found to comply with the Rules.

THE NOTICE OF APPEAL SEEKS TO IMPUGN THE WHOLE JUDGMENT

In his prayer, the appellant seeks an order, inter alia, that the judgment of the court a quo be set aside and in its place, an order made dismissing, with costs, the plaintiff's claim.

The respondent has taken the point that the prayer cannot be correct as the appellant was only one of five persons against whom judgment was entered in the court a quo. The judgment entered against the other four defendants was a default judgment - all of them having failed to attend the trial proceedings.

I agree with the respondent that the appellant cannot competently appeal against the whole judgment as he purported to do. He could only appeal against that part of the judgment that affected him.

The question however arises. Does the intimation that the appeal is against the whole judgment when in fact it is only against part of the judgment invalidate the appeal?

My view is that, in the particular circumstances of this case, it does not.

WHETHER THE GROUNDS OF APPEAL COMPLY WITH THE RULES

In a recent decision in Kunonga v The Church of the Province of Central Africa SC25-17, this court commented at length on the requirement that grounds of appeal must be clear. This court further confirmed the position it has previously taken, that grounds of appeal that are not clear and concise render a notice of appeal fatally defective; the result being that the appeal stands to be struck off the roll in its entirety.

The notice of appeal states that “the court a quo erred in all or any of the following respects.” The notice then proceeds to list ten (10) instances in which it is suggested the court a quo erred.

Clearly, the use of the words “erred in all or any of the following respects” suggests that the appellant was himself uncertain of the exact basis upon which he sought to attack the judgment of the trial court. He appears to have been on a fishing expedition, hoping that if one or more grounds did not succeed, then perhaps the remaining grounds would do so.

Most of the grounds of appeal itemised in the notice of appeal are, in any event, vague. It is very difficult to ascertain exactly what it is the appellant is complaining about in those grounds.

Ground 1 states that the court a quo erred in finding that the dispute was a labour dispute. No further detail is provided. The reality is that the court a quo did not simply find that this was a labour dispute. It found that the appellant's claim, based on a stated account, had not been proved and that, consequently, the claim remained one under the Labour Act. In the circumstances, ground 1 is meaningless.

The same goes for grounds 2,5,8,9 and 10.

A ground that the court a quo erred in accepting the evidence of Mr Nhemachena in so far as it conflicted with that of the appellant is meaningless. A ground that the court erred in failing to take into account the unsatisfactory manner in which the defence was conducted is so vague that the respondent would not understand what it is that is sought to be impugned on appeal.

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017.

The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252= after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager. The appellant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors.

The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199= without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

It is ordered that:

“1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect, that, there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant, before the Master of the High Court, was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief;

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i) Firstly, they contended, that, the appellant failed to pray for the success of his appeal in this court hence the relief sought was incompetent.

(ii)...,.

(iii) Thirdly, the respondents argued, that, the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.

In response to these points in limine, the appellant, in his heads of argument, argued, that, there is no provision in the Rules which requires a party to expressly state whether or not the appeal should succeed as the judges can themselves simply state that the appeal succeeds or not.

He explained that the intention that the appeal succeeds is apparent from the very act of appealing itself....,.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued, that, it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt....,.

The Court found there was merit in the respondents points in limine, in particular, that, the appellant's Notice of Appeal did not satisfy the provisions of Rule 29 of the Supreme Court Rules. This Rule provides that;

“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;”

The wording of the provision shows that the Rule is mandatory in nature, meaning, that, any document labelled 'Notice of Appeal' must comply with it in order to be a valid notice of appeal.

The information required in terms of this provision must be clearly set out even where it may be obvious or deducible from the given text of the grounds of appeal.

The purported Notice of Appeal in casu, in the court's view, did not meet the requirements set out in the mandatory provision cited. It also fell short in other respects as indicated below.

The respondents are correct in the submission, that, the appellant's failure to pray for the success of the appeal in this court, before the judgment a quo could be set aside and substituted, constitutes a serious defect in the Notice of Appeal.

Rule 29(1)(e) of the Supreme Court Rules is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.

In Ndlovu v Ndlovu and Another SC133-02, MALABA JA…, dealing with a similarly defective Notice of Appeal, held that;

“The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed, the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

These words are fully applicable to the circumstances of this case.

The respondents point in limine in this respect is accordingly upheld....,.

Finally, and as correctly observed by the respondents, the appellant's claim for costs against parties from whom no substantive relief was sought was incompetent and therefore not to be sustained.

In this respect, the court notes, that, the appellant, in his draft order, did not seek the setting aside and substitution of the High Court's decision upholding the point in limine concerning the misjoinder to the proceedings of the second respondent.

That part of the court a quo's decision therefore stands unchallenged, with the result, that, the second respondent was, in reality, wrongly cited in this appeal.

It follows, that, the order of costs sought against it is incompetent.

In any case, the court finds no merit in the appellant's submission, that, the second and third respondents were liable to him 'in delict' and are therefore properly sued for costs.

The proceedings a quo were clearly not delictual in nature and the appellant's claim for costs cannot, by that token, be founded on them.

This court cannot determine an unspecified allegation,

That is why Order 31 Rule 2(4)(a) and (b) of The Magistrate's Court (Civil Rules) 1980, requires an appellant to state the part of the judgment and findings appealed against. It provides as follows;

“2(4) A notice of appeal or of cross-appeal shall state -

(a) Whether the whole or part only of the judgment or order is appealed against, and, if part only, then what part; and

(b) The grounds of appeal, specifying the findings of fact or rulings of law appealed against.”

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…,.

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) 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). 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), 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) was null and void.

Relying on the mandatory nature of Rule 29(1)(a)(d) and (e) and Rule 32(1), referred to above, counsel for the respondent submitted that the appellant's Notice of Appeal was fatally defective in three respects;

(i) 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) 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) 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) 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) 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 [Chapter 7.06] 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).

(ii) 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) 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), 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).

Counsel for the appellant conceded that the appellant's Notice of Appeal does not comply with Rule 29(1)e). 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) 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.

(iii) 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) which require that grounds of appeal “be set forth concisely.”

Rule 32(1) 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) 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) 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) and (e) and Rule 32(1). 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.

The preliminary question raised is whether the document filed as the Notice of Appeal complies with Rule 29 of the Supreme Court Rules.

Rule 29 requires that a Notice of Appeal shall state whether the appeal is against the whole or part of the judgment. The Rule 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. The reason is that there will be nothing to amend.

In this case, the document states that the appeal is “against part of the judgment and the whole order.”

Counsel for the applicants concedes that the document, as it stands, does not comply with the requirements of Rule 29. The court agrees with counsel for the respondents that once the defect is conceded the purported Notice of Appeal is fatally defective. On the authorities of this Court, the purported Notice of Appeal cannot be amended. The only remedy available is an order striking the matter off the roll.

The matter is struck off the roll with no order as to costs.

SECTION 74 OF THE CONSTITUTION

The appellant argued, for the first time in heads of argument, that, in terms of section 74 of the current Constitution, it had the right not to be arbitrarily evicted in the absence of a court order.

It is unclear where this submission comes from.

The issue is not part of the appellant's grounds of appeal. It was not argued before the court a quo, and, indeed, that court made no finding on it. The provision cited deals with arbitrary evictions. That was not an issue before the court a quo which was seized with the question whether or not to confirm the provisional order. Equally, it is not an issue before this Court.

This submission must therefore fail.

GROUNDS OF APPEAL

In her amended grounds, the appellant has raised seven grounds of appeal. These are:-

“1. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in mistaking the factual Application a quo for a variation of a Consent Paper, rather than for an upward variation in maintenance.

2. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in not exercising its equitable discretion at all, whether by value judgment or assessment, notwithstanding facts proffered which manifested good cause for the relief sought of a variation in maintenance.

3. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in finding that the appellant had not shown a change in circumstances warranting good cause for the variations sought, as this ignored the facts and figures sworn to in her founding affidavit.

4. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in allowing extraneous and irrelevant matters to affect its decision, namely, considerations pertinent to variation of a Consent Paper, rather than applying its equitable discretion meru motu and exercising its value judgment to salient factors pertaining to the costs of living.

5. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, and applied the wrong principle, namely, in not recognising that the appellant's Answering Affidavit pertained to evidence in rebuttal requiring denial from Respondent, failing which the allegations in the Answering Affidavit were deemed to be admitted.

6. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in overlooking respondent's deemed admissions which precluded a finding that there were disputes of fact militating against the exercise of an equitable discretion in appellant's favour.

7. In the circumstances, the court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in not drawing an adverse inference on respondent's failure to deny the evidence in rebuttal.”…,.

GROUNDS OF APPEAL – WHETHER VALID

The appellant was granted leave by this court, on 18 November 2016, to file amended grounds of appeal. Consequent to that order, the appellant filed, on 2 December 2016, the amended grounds of appeal that I have already referred to. The preliminary point taken by the respondent, in heads of argument filed on 17 October 2016, was, therefore, overtaken by the order of this Court dated 18 November 2016. Nevertheless, the respondent submitted, before this court, that even the new grounds of appeal are not compliant with the Rules of this Court which require that such grounds should be concise.

In my view, learned counsel was indeed correct in objecting to the grounds of appeal as formulated. Some of the grounds remained vague whilst others, though listed as separate grounds, duplicated issues already raised in other grounds.

Counsel for the respondent accepted that although the grounds are not very clear, one can discern from ground 1 and 2 what the appellant seeks to impugn. In response, counsel for the appellant accepted that some of the grounds merely repeated what had been raised in earlier grounds. He was content to abandon the rest of the grounds and rely on grounds 1 and 2 only.

This appeal will therefore be confined to those two grounds.

It is necessary, however, to re-state the need for grounds of appeal to be clear and concise. In the absence of such clarity, grounds of appeal that are vague and lack conciseness stand to be struck out. Grounds 3 to 7 clearly do not comply with the requirement that grounds of appeal must be concise. They are, in any event, argumentative and repetitive. In the circumstances, those grounds are struck out. The remaining two grounds deal with the issue;

(i) Firstly, whether there was need, before the application for variation was filed, for the rescission of the consent paper; and

(ii) Secondly, whether the court a quo was correct in finding that no good cause for a variation had been shown.

To conclude on the issue of the interim interdict that the appellant unsuccessfully sought before the court a quo, I make the point that in his Notice of Appeal to this Court, the appellant did not seek to challenge the correctness of the finding by the court a quo that the interim interdict he had sought could not be granted in the circumstances of the matter.

The correctness of that decision remains unchallenged and must be upheld by dismissing this appeal.

Instead, the appellant seeks to attack the findings by the court a quo that he had no right to purchase the property ahead of the second respondent or any other purchaser - a finding based on obiter. A point to which I now turn.

Obiter dictum

Accepting, as I do, that the ratio decidendi of the decision of the court a quo was its finding that the appellant was not entitled to the interim interdict, then, the other findings by the court were all obiter dictum.

With respect, the court a quo ought not to have proceeded beyond its finding that the appellant was not entitled to the interim interdict. Its foray into the other issues not only creates the impression that these are now res judicata but it regrettably also misled the appellant into filing an appeal against findings made by way of obiter remarks.

The court a quo appears to have overlooked the prudence of always minimising the basis of its decision to only those issues that are necessary to resolve the dispute before the court.

The appellant…, sought to amend his prayer to seek, instead, an order cancelling and reversing the transfer to the second respondent.

Again, in fairly terse terms, the court a quo found that this was not tenable on the basis of the papers filed before it….,.

It is not clear from the record whether or not the court a quo granted the application by the appellant to amend his prayer from one seeking an interim interdict to one seeking to reverse the transfer of the property to the second respondent. The court a quo, on page 2 of its judgment, noted this was impossible as “all evidence on paper deal with sale and not transfer.” This finding is not followed by an order dismissing the application.

The confusion on whether or not the court a quo granted the application to amend is created by the fact that immediately after making the observation that it was impossible to amend the appellant's draft order, the court proceeded to deal with whether or not the appellant had made an offer for the property when he was invited to do so by the estate agent selling the property. This was an issue that could only have arisen for determination if the draft order had been amended, or more properly, it is an issue that would arise in the determination of the substantive dispute between the parties. The court a quo nevertheless proceeded to find against the appellant in this regard giving rise to the perception that it had granted the application to amend the draft order….,.

Apart from dealing with the…, issue which was not properly before it, the court a quo also commented on an earlier application which the appellant had brought on a certificate of urgency seeking to restrain the sale of the property.

That application had been dismissed on the basis that the appellant had failed to prove that he had the right of first refusal to the property. After referring to this unsuccessful application, the court a quo proceeded to determine whether or not the appellant had the right of first refusal to the property and found, like the earlier court had found, that the appellant did not have such a right.

In view of the fact that the earlier court had already determined that issue, it was no longer open for the court a quo to revisit the same issue as it does not have review powers over a court of equal jurisdiction. It is however this finding by the court a quo, that the appellant has no right of first refusal to the property, that has given rise to this appeal.

I have set out in detail the judgment of the court a quo to demonstrate how the finding under appeal is orbiter and does not form the ratio of the judgment.

Once the court a quo had found that the application before it could not be granted as the harm that the appellant sought to pre-empt had already occurred, and the appellant had accepted that position by formally seeking to amend his draft order during the hearing of the matter, the court a quo ought to have made an order denying the application to amend the prayer with reasons. It ought not to have proceeded to deal with the issues raised by the amended draft order as if these were properly before it which only the court dealing with the substantive dispute between the parties could have properly dealt with.

I make these observations as they have a bearing on the question of costs. They do not affect the outcome of the appeal.

The appellant erred in noting an appeal against findings that were made by way of orbiter remarks. His error is however understandable in that he is a self-actor who could not discern between the ratio of the judgment and the other findings of the court a quo by way of obiter.

Disposition

There has been no appeal against the ratio decidendi of the judgment of the court a quo. Accordingly, the appeal cannot succeed….,.

In the result, I make the following order: The appeal is hereby dismissed with no order as to costs.

At the hearing of this matter, additional grounds of appeal were moved and granted through an amendment…,.

The laxity and in-attentiveness in drafting the Notice of Appeal by the appellants' counsel has necessitated the insertion in brackets of the proper parties before this Court.

The appellants, in their grounds of appeal, cite the parties as if they are still before the High Court. The appeal should relate to “Appellants” and “Respondent” and not “Applicant” and “Respondents.”

This lack of attentiveness by legal practitioners is the kind of carelessness that should never manifest at this level of litigation.

At the hearing of the matter, counsel for the appellant raised the entirely new argument that the enabling law for present purposes was the Ordinance of 1911 and not the Urban Councils Act [Chapter 29:15]: therefore, paragraph 69(2)(e) of the Third Schedule to the Act could not be applied, as was done by the court below, to render the bye-laws ultra vires.

In response, and being quite justifiably aggrieved, counsel for the respondent countered that this argument was highly improper in light of argument to the contrary advanced and dealt with a quo as well as the thrust of the grounds of appeal and heads of argument filed before this Court.

I entirely agree with counsel for the respondent that this fresh attack on the judgment appealed against is entirely improper and should not ordinarily be entertained….,.

The applicant has raised the ground of appeal that;

“The court a quo erred and misdirected itself at law in finding that the appellant did not have locus standi in judico to institute action seeking the relief it sought against 1^st respondent arising out of a purported compulsory acquisition of portion of Bulfield Farm by 2^nd respondent, which portion of Bulfield Farm was the subject of a notarial deed of servitude registered in favour of the 1^st respondent on 11^th July 1995.”

This is not a ground of appeal that can be properly raised in this matter.

The applicant was the owner of the land in question, holding a Deed of Transfer in respect of the land. In that capacity, it passed a servitude in favour of the respondent's predecessor in title over part of the land in 1995 and in respect of which it was paid the sum of $4 million. In addition to the rights granted to it under the servitude, the respondent also concluded a lease agreement with the applicant in respect of the property. In 2000, the farm was compulsorily acquired under the Land Acquisition Act [Chapter 20.10]. The lease agreement between the parties expired, by effluxion of time, but the respondent remained in occupation of the land. It refused to renew the lease agreement on the basis that the land had been acquired by the State and the applicant has lost all title to it.

Before the court a quo, the applicant conceded that the land over which it had passed a servitude in favour of the respondent's predecessor was compulsorily acquired by the State.

It cannot be disputed that acquisition of the land by the State necessarily meant the extinction of rights in the land held by the applicant as owner and the consequent loss of locus standi on its part to bring any action based on the extinguished rights - which was the ratio decidendi of the court a quo's decision.

The correctness of this finding is beyond reproach.

To its credit, the applicant does not seek to challenge it on appeal. Instead, and incorrectly so, the applicant seeks to challenge the correctness or otherwise of the acquisition of the land itself by the second respondent on behalf of the State. It argued that it intends, on appeal, to raise the constitutionality or otherwise of the acquisition of its land by the State as the land in dispute is not agricultural.

With respect, this issue was not before the court a quo, and, therefore, cannot be an issue on appeal. It is clearly an incompetent ground of appeal in the matter.

An incompetent ground of appeal cannot be raised or sustained on appeal and it therefore does not, and cannot, enjoy any prospects of success on appeal. A ground of appeal that enjoys prospects of success on appeal is one that, if successfully argued on appeal, will result in the setting aside of the decision appealed against. An improperly raised ground of appeal cannot be argued on appeal and will thus have no effect on the judgment appealed against.

I am fortified in my decision to deny this application by the concession by both parties in the hearing before me that the point sought to be raised by the sole ground of appeal was not raised a quo. It is, therefore, a novel point, calling not only for fresh arguments but for a fresh determination on appeal. This Court is loathe to assume the jurisdiction of the lower court and pronounce, at first instance, on issues that were not canvassed and fully argued before the court a quo. See ANZ Grindlays Bank (Zim) (Private) Limited v Hungwe 1994 (2) ZLR 1 (S).

I have considered whether or not the applicant is entitled to raise this point for the first time on appeal as a point of law.

It is not. Two principles stand in its way;

(i) Firstly, this is the sole ground of appeal that it intends to raise. It is not additional to any other valid ground of appeal. As it is an incompetent ground of appeal it cannot be the basis of any valid appeal before this Court.

(ii) Secondly, the point that the applicant seeks to argue, for the first time on appeal, does not arise from the pleadings that were before the court a quo. The constitutionality or otherwise of the acquisition of the land was not challenged before the court a quo. See Austerlands (Pvt) Ltd & Anor v Trade and Investment Bank Limited SC92-05.

On the basis of the foregoing, I remain of the firm view that this application cannot succeed. In the result, I make the following order:

The application is dismissed with costs.

The application is a parody of more serious fatal procedural irregularities, chief among them being failure to provide a copy of the impugned judgment.

It is an exercise in futility for a litigant to attack a judgment of a lower court in a higher court without availing the court a quo's judgment for scrutiny by the higher court to assess the veracity of the applicant's criticism of the judgment. The applicant's failure to avail the impugned judgment before me renders its criticism of the judgment hollow and nugatory.

That finding of fact and law renders the applicant's submissions on its prospects of success valueless and not worth the paper upon which they are written as no weight can be placed on the submissions in the absence of the impugned judgment. ZIYAMBI JA echoed the same sentiments in MM Pretorious (Pvt) Ltd & Anor v Chamunorwa Charles Mutyambizi SC39-12 when she said:

“As to the prospects of success on appeal, the applicants make no mention thereof in their affidavits and no determination can be made on this issue particularly as the judgment appealed against does not form part of the record. It follows that the applicants have not established that there are any prospects of success.”

Failure to attach the impugned judgment was therefore a fatal grave error.

The High Court judgment sought to be appealed against was delivered on 23 November 2011. The application was filed on 12 March 2012 - almost four months later. In terms of the Rules of the Supreme Court (“the Rules”) an appeal shall be noted within 15 days of the date of the judgment. See Rule 30(a).

The application is beset with problems, the first of which is that it does not contain a copy of the judgment appealed against. See Rule 31. This non-compliance renders the application fatally defective as no consideration of the application can be undertaken without sight of the judgment….,.

As to the prospects of success on appeal, the applicants make no mention thereof in their affidavits and no determination can be made on this issue particularly as the judgment appealed against does not form part of the record. It follows that the applicants have not established that there are any prospects of success on appeal.

GROUND NO. 1

Counsel for the appellant contended that the application before the High Court was improperly authorized and was therefore invalid. Accordingly, he contended, there was no basis upon which the court a quo could relate to it. He submits this was because the power of attorney purporting to authorize the deponent to the founding affidavit, Davie Fukwa Mutingwende, to act on behalf of the first respondent, was executed by her in the United Kingdom. It was not authenticated in terms of Rule 3 of the High Court (Authentication of Documents) Rules, 1971.

From the above submission, it seems the appellant is seeking to raise a new issue before this Court relating to the validity or otherwise of the power of attorney. In the absence of any other evidence to the contrary (oral submissions made for the appellant are not part of the record before this court), it would appear from the judgment of the court a quo, that the only issue raised before the court a quo related to whether or not the power of attorney was granted to an entity called ZIMMART Trust or to the deponent to the founding affidavit. I can do no better than to quote how the court a quo dealt with the issue. At page 3 of the cyclostyled judgment, the court had this to say;

“Further, the 1st respondent sought to raise issue with the power of attorney that applicant had granted to her brother. It was argued, on his behalf, that it was not clear whether the power of attorney was granted to an entity called ZIMMART or to the deponent, Davie Fukwa Mutingwende, the Group Executive Officer. I dismissed this point as the special power of attorney clearly stated as follows -

'Therefore, I hereby appoint Davie Fukwa Mutingwende, ZIMMART Trust, residing at 39-38 Crescent Warren Park 2…, to be my special attorney and agent.'”

The court a quo could not have “erred in dismissing an objection to the validity of a special power of attorney…,” when there is no record that the issue was placed and ventilated before it.

The ground of appeal therefore lacks merit.

Rule 29(2) of the Supreme Court Rules, 1964, a peremptory rule of the court which reads:

“The Notice of Appeal shall be served on the Registrar, the Registrar of the High Court, and the respondent.”

Failure to comply with a peremptory rule therefore renders the Notice of Appeal fatally defective.

In Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd & Anor SC43-13, GARWE JA stated as follows:

“The position is now well established that a Notice of Appeal must comply with the mandatory provisions of the Rules and that if it does not, it is a nullity and cannot be condoned or amended. See Jensen v Acavalos 1993 (1) ZLR 216 (S).”