One cannot have practised in the Supreme Court of Zimbabwe within the past decade without witnessing repeatedly some version of this dismaying scenario. A dispute wends its tedious way through the judicial system and finally lands in the final court of appeal. The parties make expensive arrangements to be represented.

Elaborate substantive arguments would stand ready to be presented. All anxiously anticipate the end of a journey that would have already consumed vast amounts of money and possibly years of their lives. Then they will be told that they must do it all over again.

Within minutes of convening, the court will have pronounced that there is no appeal before it. The proceedings are treated as though they never existed because of some defect in the notice of appeal. That might be an incorrect date of the judgment appealed against, stating the name of the judge who made the decision instead of “the High Court”, or even failing to say that the appellant wants the appeal to succeed.[1] That defect in the document is treated as “fatal” to the appeal itself. Having noted that error, the court would have effectively proceeded as though nothing else matters.

So why could the notice of appeal not simply be amended? It is merely a procedural tool to bring the actual dispute before the court, after all. Even if the date of the judgment is incorrectly stated, no one is unsure of which judgment is appealed against. Wouldn’t a simple amendment suffice to correct the notice so that the real work of the court can proceed? After all, Zimbabwean Courts have even been known to condone non-compliance with the Constitution of the country when it was expedient to do so in order to get to the real issue in the case.[2] How could it be, then, that breaches of rules on the contents of a notice of appeal to the Supreme Court of Zimbabwe should be regarded as “fatal”?

It is generally accepted that the issue arises from a dictum in Jensen v Acavalos 1993 (1) ZLR 216 (S). To sum up, in its own words, the position that the Supreme Court of Zimbabwe has repeatedly taken since then:

“In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally defective notice of appeal could not be amended was that:

‘. . . it is not only bad but incurably bad’.

Citing Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority, the learned Judge of Appeal said that what should actually be applied for is an extension of time within which to comply with the relevant Rule and condonation of non-compliance.”[3]

The starting point in comprehending this attitude, then, ought to be to examine closely the reasoning in Jensen v Acavalos.

In Jensen, Korsah JA stated thus at 220C – D:

“In Hattingh v Pienaar 1977 (2) SA 182 (O) at 183, KLOPPER JP held that a 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 most respectfully agree; for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co Ltd [1961] 3 AllER 1169 (PC) at 1172I, ‘every proceeding 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.’”

However, as the very same Korsah JA held elsewhere, “adjectival law is not immutable”.[4] The court controls its process and has the inherent power to condone departures from the rules.[5] Even the Constitution cannot stand in the way of that power when the court chooses to exercise it.[6] Perhaps this is why the Jensen principle applies only “if the notice of appeal is incurably bad”. But when is that the case? What distinguishes non-compliance that may be condoned from the “fatally defective non-compliance” that begets a nullity?

The decision in Hattingh (which is cited as authority for the proposition) does not provide an answer. In fact, Hattingh does not even lay down the principle for which it was cited. The appellant in Hattingh applied for leave to amend defective grounds of appeal. The respondent contended instead that the matter should be struck off the roll. Now here is what Klopper J actually then said at 184C – D:[7]

“Prime facie it does not appear that there can be any prejudice to the respondent, because the respondent’s heads of argument deal fully with the suggested grounds of appeal. Mr Van der Spuy is, however, correct in his submission that respondent is entitled, if he so elects, to reply to the notice of motion and that he must be given the opportunity to do so. I can, however, not agree with Mr Van der Spuy that the appeal should be struck off the roll. It appears to me that, in the circumstances, it will cause an unnecessary duplication of costs. I think that the correct order should be that the appeal is postponed sine die…”

The matter was then postponed accordingly.

This makes it impossible to understand how Hattingh can be authority for the notion that the appeal is void. The supposed principle that a defective notice of appeal is a nullity that cannot be corrected or acted upon must flow from some authority other than Hattingh, therefore. But Jensen does not provide any. And none appears to exist.

Insofar as McFoy v United Africa Co Ltd [1961] 3 AllER 1169 (PC) is concerned, which was the other case cited in the Jensen dictum, this judgment equally does not support the conclusion that non-compliance with the rules can inexorably render a notice of appeal a nullity. That case concerned a rule which provided that process may not be filed during the Court vacation. A plaintiff had delivered a statement of claim during a vacation and obtained judgment on it. The defendant argued that because of the irregular filing, the statement on which the judgment was founded was a nullity. This was said to invalidate the judgment itself. Lord Denning held at 1172H that the court’s power to condone non-compliance “applies only to proceedings which are voidable, not to proceedings which are a nullity: for those are automatically void”. He emphasised that it is only if the statement was void that the judgment founded on it would “collapse”. He ultimately held that, despite non-compliance with the supposedly peremptory rule, the statement was not void and the appeal failed.

Focusing on what distinguishes “fatal” non-compliance from other instances, this passage at 1173B – D of McFoy is instructive:

“No court has ever attempted to lay down a decisive test for distinguishing between [void and voidable proceedings]: but one test which is often useful is to suppose that the other side waived the flaw in the proceedings or took some fresh step after knowledge of it. Could he afterwards, in justice, complain of the flaw? Suppose for instance in this case that the defendant, well knowing that the statement of claim had been delivered in the long vacation, had delivered a defence to it? Could he afterwards have applied to dismiss the action for want of prosecution, asserting that no statement of claim had been delivered? Clearly not. That shows that the delivery of the statement of claim in the long vacation is only voidable. It is not void. It is only an irregularity and not a nullity. It is good until avoided.”

In essence, where the non-compliance produces no prejudicial practical effect, it is merely an irregularity and not a nullity. There is thus nothing in this passage, nor anywhere else in McFoy, to support the conclusion that an appeal is rendered a nullity by a failure, for example, to specify whether it is the whole or only part of a judgment that is attacked.

The much-vaunted principle in the Supreme Court of Zimbabwe that non-compliance with any requirement of the rules governing notices of appeal renders the proceedings a nullity in all circumstances is of both unclear origin and doubtful correctness. To the extent that it is derived from Jensen, the reasoning in Jensen departs from the very cases that are cited there. A reading of Hattingh, McFoy and also De Jager v Diner & Anor 1957 (3) SA 567 (AD) indicates that the real issue should be the practical consequences of the non-compliance. It is really only where the non-compliance renders the notice meaningless or so confusing that the respondent and the court are left genuinely unsure of what issue the appeal raises or what relief is sought that the appeal ought to be struck off.[8] To impose that result where an appellant has, for instance, failed to number the grounds of appeal would be to do so almost entirely for the sake of doing so, rather than to protect some legitimate interest or remove some genuine prejudice. This can lead to unjust consequences.

For instance, a lawyer who lacks the skill or ethics to handle matters on the merits may raise spurious objections simply to prolong the proceedings and claim undeserved fees. Anecdotal evidence abounds of practitioners who actually boast of having funded their lifestyle through such trickery. Similarly, litigants who have no defence or wish to harass an adversary would have an avenue to flee the real issue. They too would be heard to deride the court system as actually aiding their chicanery rather than bringing them to account. The end result would likely be to promote a deplorable culture of taking unhelpful objections “simply as a matter of fashion.”[9] A genuine preliminary objection is one that has the potential to resolve the matter on the basis that a party claiming relief is either disentitled to that relief because of a rule of law,[10] or unable to sustain its claim for that relief because of a prejudicial deficiency in the way that it is seeking to do so.[11] Objections that are taken for their own sake may serve only to aid the malfeasance of disingenuous litigants or mask the ineptitude of unscrupulous practitioners. Decisions upholding such objections only add to the delay and expense associated with litigation. They might even exhaust the resolve of litigants who lack the resources to persevere through them despite the merit of their cause. The real casualty of the whole practice could up being the vital right to speedy and fair determination of rights.[12]

[1] The curious fault in this instance would be omitting to seek an order that “the appeal is allowed” in addition to an order setting aside the decision of the lower court.

[2] Chamisa v Mnangagwa & Ors CCZ – 21 – 19 at pp 37 – 41.

[3] Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) at 149E – F.

[4] Makaruse v Hide and Skins Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S) at 63H – 64C.

[5] Supreme Court Rules, r 4; High Court Rules, r 4C.

[6] Chamisa v Mnangagwa & Ors above fn 2,

[7] The judgment is in Afrikaans, which I do not read. I am indebted to a former fellow Advocate, Erik Morris, for this translation.

[8] See de Jager at 574.

[9] Telecel Zimbabwe (Pvt) Ltd v POTRAZ & Ors 2015 (1) ZLR 651 (H) at 659C – E.

[10] Such as where a claim has been extinguished by prescription.

[11] Such as where a claim is pleaded in terms so vague or contradictory as to leave the other side unsure of what it is even being called upon to answer.

[12] Constitution of Zimbabwe, 2013, s 69.