Plumed Horse (Private) Limited & 2 Ors v Dundurn (Private) Limited & 3 Ors

### Preamble
Judgment No. SC 153/20
1
Civil Appeal No. SCB 87/20
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DISTRIBUTABLE	(169)

PLUMED     HORSE     (PRIVATE)     LIMITED     (2)     STELLA     NYANDORO     (3)     GEORGE     NYANDORO

v

DUNDURN     (PRIVATE)     LIMITED     (2)     REGISTRAR     OF    DEEDS     (3)     THE     SHERIFF     OF     HIGH     COURT     OF     ZIMBABWE     (4)    THE      MASTER     OF     THE     HIGH     COURT

SUPREME COURT OF ZIMBABWE

MATHONSI JA

BULAWAYO:	3 & 4 NOVEMBER, 2020

R.G. Zhuwarara, for the applicant

L. Nkomo with Z.C. Ncube, for the first respondent

MATHONSI JA:	This is an application for condonation of the failure to file an application for reinstatement of an appeal in terms of r70 (2) of the Supreme Court Rules 2018. If condonation is granted to the applicant it would like to then file an application for reinstatement of an appeal which was regarded as abandoned and deemed dismissed in terms of r37 (2) of this Court’s rules.

Clearly the applicant would like to commit this Court’s time, not once, but twice to dealing with the same matter.  It is an industry this Court certainly can do without as it is generally undesirable to inundate the court with a multiplicity of applications involving the same matter.

The facts relevant to the determination of the application are simple and straight forward.  At the instance of the first respondent, the High Court granted a provisional order against the applicant and three others on 7 August 2018.  The interim relief interdicted the present applicants from disposing of a property known as number 517 Jacaranda, Victoria Falls.  The provisional order also directed that a caveat be placed on Deed of Transfer number 1617/2002 by virtue of which the applicants held that property.

Subsequent to that, the High Court confirmed the provisional order on 13 September 2018.  The confirmation order also directed transfer of the property to the first respondent.  Such transfer took place on 27 December 2018 and the first respondent now holds title by Deed of Transfer number 2352/2018.  Following transfer, the first respondent brought a vindicatory action against the applicants. The first respondent sought the eviction of the applicants from the property.

It is then that the applicants made an application to the High Court for rescission of the judgment issued on 13 September 2018.  The application was made in terms of r449 of the High Court of Zimbabwe Rules, 1971.  The basis of the application was that the grant of both the provisional order made on 7 August 2018 and the confirmation judgment of 13 September 2018 were instigated by fraud.

In addition the applicants alleged that there had been no proper service of the urgent chamber application, the notice of set down and the provisional order.  As a result they had failed to attend court on both occasions and as such the two orders were fraudulently sought and erroneously granted in their absence.  The High Court found that r449 of its rules did not apply to the circumstances of the case.  No fraud was established, and neither was there any error in the grant of the orders.

It is that judgment of the High Court which the applicants would like to contest on appeal to this Court.  In fact, following the handing down of the judgment on 16 July 2020, the applicants filed a notice of appeal with the Registrar of this Court on 21 July 2020.  The notice of appeal was submitted within the time allowed by the rules for the filing of an appeal.

The applicants’ undoing was their failure to serve the notice of appeal upon all the respondents as required by r38 (2) of this Court’s rules.  The rule provides that an appellant shall institute an appeal by filing and service of a notice of appeal in accordance with sub rule (2) of r37 within 15 days of the date of the judgment appealed against.

By letter dated 7 August 2020 the Registrar of this Court notified the applicants that the appeal was deemed abandoned and thereby dismissed by reason of failure to serve the notice. Notwithstanding the failure to comply with the rules providing for institution of an appeal, the applicants have approached this court seeking condonation for failure to make an application for reinstatement of the appeal within the period of 15 days allowed by r70 (3) of this Court’s rules.

When the impropriety of seeking a reinstatement of a non-appeal was brought to the attention of Mr Zhuwarara for the applicants, he insisted that the proper course of action to be taken by the applicants is indeed an application for reinstatement of the appeal.  He submitted that r70 (2) allows for the reinstatement of all forms of appeal to which the Registrar would have given notice in terms of r70 (1).  In light of the fact that r37 (3) is a deeming provision providing that failure to serve an appeal results in the appeal being regarded as abandoned and being deemed dismissed, so the argument goes, its wording triggers the remedy set out in r70 (2), namely to apply for reinstatement of the appeal.

I do not agree.  In fact I agree with Mr Nkomo for the respondent that, where an appeal has not been properly instituted, there cannot be any appeal to reinstate.  In those circumstances the proper approach would be to seek condonation and extension of time within which to note a proper appeal.

In terms of r37 (1) every civil appeal shall be instituted in the form of a notice of appeal which complies with the requirements set out therein.  Sub rule (2) requires the notice of appeal to be served on the Registrar as well as the respondents.  Therefore for a valid appeal to exist there must be compliance with the requirement for service of the notice aforesaid.  Anything short of that is fatal to the appeal to such an extent that there would be no appeal.

The position of this Court has always been that a notice of appeal is only a valid one if it complies with both r37 and r38.  These rules are an integral part of the process of noting an appeal.  When the notice fails to comply with the rules in the process of noting it, that appeal is said to be defective.  A defective appeal is a nullity and where something is a nullity it is taken as though nothing is before the court.

KORSAH JA expressed that view very articulately in Jensen v Acavalos 1993 (1) ZLR 216 (S) at 220B-D:

“… 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 & Onor 1957 (3) SA 567 (A) at 574C-D.  In Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 KLOPPER JP held that 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 must respectfully agree, for if the notice is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1961] 3 ALL LR 1169 (PC) at 1172I:

‘every proceedings 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.’”

To the extent that it has been suggested on behalf of the applicants that this jurisprudence has been altered by the introduction of r70 (3) of the current Supreme Court Rules, 2018, I respectfully disagree.  Rule 70 (3) should be understood in proper context.  It applies to valid appeals as opposed to defective ones.

Indeed, this Court has already pronounced itself on the effect of the current rules in the case of Ringsilver Enterprises (Pvt) Ltd & Ors v Zimbabwe Tourism Authority & Anor SC-64-20.  It is a judgment which was decided in terms of the current rules.  Commenting on the application of r37 (2) the court said:

“The applicant’s omission to serve the High Court Registrar with the notice of appeal rendered the appeal void ab initio”.

The legal position that if a notice of appeal has not been served on the respondents as provided for in the rules, it is defective has not been changed by the current rules.  It is a point which should have been conceded by the applicants.  For Mr Zhuwarara to insist that an appeal dead in the water was capable of revival by an application for reinstatement was not helpful.

In that regard, I do not see the reason why the applicants should not be lumbered with the costs of the application.

In the result it is ordered that the application be and is hereby struck off the roll with costs.

C. Nhemwa & Associates, c/o T. Hara Legal Practitioners, applicants’ legal practitioners

Messrs Ncube & Partners, 1st respondent’s legal practitioners