Simon Chinyadza Muchakwanya Kuture v Martin Mugocha

### Preamble
1
HH 451-18
CIV ‘A’ 222/16
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SIMON CHINYADZA MUCHAKWANYA KUTURE

versus

MARTIN MUGOCHA

HIGH COURT OF ZIMBABWE

CHITAKUNYE & NDEWERE JJ

HARARE, 20 July 2018 & 2 August 2018

Civil appeal

Appellant in person

S A Tawona, for the respondent

CHITAKUNYE J.  This is a purported appeal from proceedings in the magistrate’s court sitting at Rusape. The circumstances were that on the 18 October 2013 the appellant leased his shop to the respondent. The written lease agreement stated, inter alia, that the rental would be $800 per month subject to renew/review after six months.

On 4 August 2015 the appellant sued respondent for arrear rentals in the sum of $3050.00 for the period June 2014 to 30 April 2015 when respondent vacated the premises.

The defendant denied owing the amount and contended that the rentals had been reviewed downwards to $500.00 per month for May and June 2014 and then upwards to $550.00 per month thereafter. He instead counterclaimed for a refund of security deposit he alleged he paid in the sum of $800.00.

The issues referred to trial comprised:

1. Whether or not Plaintiff was owed money by the defendant;

2. The monthly rental payable during the relevant period; and

3. Whether or not plaintiff owes the defendant $ 800.00 security deposit.

A contested trial was held at which appellant’s son, Jerald Kuture, gave evidence for the appellant after which respondent testified. Some documents including the lease agreement and some receipts for payments were tendered into evidence by appellant’s witness.

Upon considering the evidence given the trial magistrate granted an absolution from the instance as she was of the view that neither party had adduced adequate evidence proving on a balance of probabilities that they were owed the sums they claimed.

It was against these proceedings that the appellant sought to appeal.

In his purported notice of appeal the appellant stated thus:

“Be pleased to take notice that the appellant in this matter hereby enters an appeal to the matter which was heard before Mrs Hanzi at Rusape Magistrates Court on 6 May 2016.”

He thereafter outlined 6 grounds of appeal.

I am of the view that the notice of appeal is fatally defective. Order 31 r 2 of the Magistrates Court (Civil Rules) 1980 states in sub rule (2) that:

(2) An appeal shall be noted by—

(a) the delivery of notice; and

(b) unless the court of appeal otherwise directs, giving security for—

(i) the respondent’s costs of appeal to the amount of one hundred dollars;

(ii) the costs of the preparation of a copy of the record to the amount estimated by the clerk of the court:

Provided that a clerk of the court may, in his discretion, accept a written undertaking

from the appellant to pay for the costs of the preparation of the record.”

Sub rule (4) thereafter states that:

(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 appellant’s notice of appeal is not in compliance with the above rules in that it does not state whether the appeal is against the judgement or order let alone the whole or part only of the judgement or order. In his own words the appellant ‘enters an appeal to the matter which was heard before Mrs Hanzi.’ The appeal appears to be against the case as a whole without specifying the cause of complaint.

In that notice appellant does not tender security for respondent’s costs nor costs for the preparation of the record.

These requirements in a notice of appeal are peremptory and failure to comply with them is fatal to the purported appeal.

In Chidyausiku v Nyakabambo 1987(2) ZLR 119 (SC) court held that:-

“In order to be valid, a notice of appeal must be directed against the whole or part of the substantive order of the court below and not to its reasons for making the order, i.e. is not to reasons for judgment.”

Further, in Hubert Davies Employees Trust (Pvt) Ltd & others v Croco Holdings (Pvt) Ltd 2009 ZLR 53(S) the Supreme Court was faced with a defective notice of appeal which did not indicate whether it was the whole or part only that was being appealed against. This was contrary to the requirements of Rule 29 of the Supreme Court Rules which provides, inter alia, that a notice of appeal must indicate whether the whole or part only of the judgement is being appealed against. At page 55E-56A GARWE JA had this to say regarding that notice of appeal:

“This court has on a number of previous occasions stated that non-compliance with r 29 has the effect of nullifying a notice of appeal. In Jensen v Acavalos 1993(1) ZLR 216(S), KORSAH JA considered the effect of the failure to state whether the whole or part only of the judgment is appealed against.

At p 220 he remarked:

‘….. a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs: de Jager v Diner & Anor 1957(3)SA 567(A) at 574C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O) at 183, KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule. With this view I most respectively agree; for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1967] 3 ALL ER 1169 (PC) at 11721,’every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.’”

In casu, as the notice of appeal is fatally defective it follows that there is no valid notice of appeal before this court.

The grounds of appeal in this case are an epitome of the appellant’s failure to comprehend what is expected in the grounds of appeal. Without delving much into the grounds of appeal it is my considered view that as there is no valid notice of appeal, the matter must be struck off the roll.

Due to the flurry of defective notices of appeal flooding this court, it is pertinent to remind litigants of the need to adhere to the rules of this court. Self-actors must likewise seek legal advice before approaching this court. The impression is created that litigants are rushing to this court without considering the rules that must guide them when seeking redress from the appeal court. As a result this court is inundated with ill thought out notices and grounds of appeal which clog the justice delivery system at the expense of proper appeals.

Accordingly the appeal is hereby struck off the roll with costs.

NDEWERE J. I concur ………………

Tawona & Jaravani Attorneys, respondent’s legal practitioners