CHIKURA NO & ANOR v AL SHAMS GLOBAL BVI LTD

SUPREME COURT, HARARE

[Civil Appeal SC 17-17]

ZIYAMBI, GOWORA AND HLATSHWAYO JJA

November 15, 2016 and February 20, 2017

Practice and procedure – Appeal – Grounds of appeal – Requirements of the rules relating to – Objection to notice of appeal – Whether need to file court application.

Respondent had by notice issued in terms of r 41 of the Supreme Court Rules, 1964 (RGN 380 of 1964) objected to appellant’s 18 grounds of appeal on the basis that they were unnecessarily prolix and offended the rules thereby.

Held, that it is not for the court to sift through numerous grounds of appeal in search of a possible valid ground. 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.

Held, further, that there is no requirement for the party objecting to a notice of appeal to proceed by way of a court application. A respondent giving notice sufficiently complies with provisions of r 41.

Cases cited:

Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2)
ZLR 147 (S), referred to

Songono v Minister of Law and Order 1996 (4) SA 384 (E), followed

Legislation considered:

Supreme Court Rules, 1964 (RGN 380 of 1964), rr 29 (1)(d), 32 (1), 41

Uniform Rules of Court of South Africa, r 49 (1)(b)

S Moyo, for the appellants

L Uriri with T Magwaliba, for the respondent

Preliminary objection

ZIYAMBI JA:

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 r 29 (1)(d) as read with r 32(1) of the Supreme Court Rules, 1964 (RGN 380 of 1964) (“the Rules”).

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 rr 29 (1)(d) and 32 (1) of the Rules 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 unnecessarily 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 r 41 of the 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.

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