PRELIMINARY
OBJECTION
ZIYAMBI
JA:
[1]
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.
[2]
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.
[3]
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.
[4]
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.
[5]
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.
[6]
In argument presented before us Mr Moyo,
who appeared 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
[7]
The relevant provisions of Rules 29 and 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.” (My emphasis)
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).
[8]
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.”
(The emphasis is mine)
[9]
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.
[10]
For the above reasons, I am constrained to agree with Mr Uriri
that the notice of appeal does not comply with the Rules of this
Court and ought to be struck out.
Procedure
in terms of Rule 41
[11]
With regard to the procedure to be adopted, Rule 41 provides:
“41.
Preliminary objections
A
party to an appeal who intends to rely on a preliminary objection to
any proceeding or to the use of any document shall give notice in
writing of the objection to the registrar and to the opposite party.
If the objection is to be taken at the hearing of an appeal three
copies of the notice shall be given to the registrar.”
It
seems to me that the criticism by the appellants of the procedure
adopted by the respondent in taking the preliminary objection is
unwarranted.
There
is no requirement for the party objecting to proceed by way of court
application. The respondent duly gave the required notice. That was
sufficient compliance with the Rule.
[12]
Accordingly, it is ordered as follows:
1.
The preliminary objection is upheld.
2.
The appeal is struck off the roll with costs.
GOWORA
JA: I
agree
HLATSHWAYO
JA: I
agree
Scanlen
& Holderness,
appellant's legal practitioners
Atherstone
& Cook,
respondent's legal practitioners
