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 ...
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.
Consequently, grounds 1, 2, 3, 4, 5, 10, 14, 15 and 16 must be struck out.
