MATANHIRE v BP & SHELL MARKETING SERVICES (PVT) LTD 2004 (2) ZLR 147 (S)

Flynote

c Appeal — notice of — requirement to state date of decision being appealed against — reason for — failure to state date — effect — notice incurably defective and incapable of being amended — appropriate procedure to follow

Headnote

Rule 7 of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 provides that a notice of appeal against a judgment of the Labour Court or tribunal other than the High Court shall state, inter alia, the dateof the decision which is being appealed against. The purpose of requiring the date to be stated is to enable the respondent and the court to determine ex facie the notice of appeal whether the provisions of r 5 of the Rules, prescribing the time limit in which the appeal should be instituted and the notice of appeal delivered and filed, were complied with. Failure to comply with all the requirements of the rule renders the notice of appeal fatally defective and a nullity. It therefore cannot be amended. What needs to be done is to draw up a new notice of appeal complying with the requirements of r 7 and make an application for an extension of time within which to deliver and file the notice of appeal and for condonation for non-compliance with the Rules.

Costs de bonis propriis will be awarded against a lawyer as an exceptional measure and in order to penalize him for the conduct of the case where it has been conducted in a manner involving neglect or impropriety by himself (dicta per Gillespie J in Omarshah v Karasa 1996 (1) ZLR 584 (H) H at 591F followed).