After hearing argument on the preliminary objections raised by the respondents 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
Rules 29(1)(d) and 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
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
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 Rules 29 and 32 of the Supreme Court Rules 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 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.
2. The appeal is struck off the roll with costs.
