BINDURA MUNICIPALITY v MUGOGO
SUPREME COURT, HARARE
[Chamber Application SC 32-15]
June 26, 2015
Court – Supreme Court – Appeal - Struck off the roll - remedy available to regularise - Condonation and extension of time within which to comply with rule – Practice Direction.
Interpretation of statutes – Words and phrases – “Struck off the roll” – Meaning of.
The appeal had been struck off for non-compliance with the Rules of Court. In an attempt to remedy the defect, applicant had simply made an application for reinstatement.
Held, that where a matter has been struck off the roll because it has failed to comply with the Rules of Court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. An application for condonation and extension of time within which to comply with the rule(s) must instead be brought.
Hattingh v Pienaar 1977 (2) SA 182 (O), applied
Jensen v Acavalos 1993 (1) ZLR 216 (S), applied
Supreme Court Rules, 1964 (RGN 380 of 1964), r 5
Supreme Court (Miscellaneous Appeals and References) Rules, 1975 (RGN 449 of 1975), rr 4(2) and 7(b)
Superior Court Practice Direction No 3 of 2013, para 5
J Muzangaza, for the applicant
This chamber application was placed before me in terms of r 5 of the Supreme Court Rules, 1964. Although it was unopposed it raised an issue concerning the interpretation of the Superior Court Practice Direction No 3 of 2013.
The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not comply with rr 4(2) and 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975. Firstly, the notice of appeal reflected the wrong date on which judgment was delivered by the Labour Court. It was quite clear ex facie the judgment that it had been hand down on 29 June 2012. However, the notice of appeal stated that it was handed down on 29 May 2012.
Secondly, a copy of the notice of appeal was served on the Registrar of the Labour Court contrary to the order by Gowora JA. The order granted by Gowora JA stated as follows:
“ 1. Leave be and is hereby granted to the applicant to note an appeal against the judgment of the Labour Court No. LC/H/196/2012 handed down on 29 June 2012.
2. The Notice of appeal shall be noted within fourteen (14) days of the date of this order.
3. There be no order as to costs.”
It was thus incumbent upon the applicant to serve the notice of appeal with the Registrar of the Labour Court within 14 days of the grant of the order. The order was granted on 28 January 2014. It was only filed with the Registrar of the Labour Court on 28 February 2014, a month later.
Whether the application is proper?
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