GULA-NDEBELE v BHUNU NO 2011 (1) ZLR 181 (S)

Flynote

Appeal “ notice “ validity “ sufficient for exact nature of relief sought to be stated “ not essential that relief sought must be one which court can grant “ court may grant amendment

Headnote

D The appellant had been removed from his post as Attorney-General, following the recommendation of a tribunal appointed by the President in terms of s 110 of the Constitution. Dissatisfied with the finding and advice of the Tribunal, the appellant took the matter to the High Court on review, alleging that the decision of the Tribunal was such that no reasonabletribunal, on the evidence before it, would have arrived at such a decision, and praying that the decision of the Tribunal should be set aside. The High Court took the view that the advice of the Tribunal and the removal from office by the President was one juristic act and that the President thus was a necessary party in the review proceedings and ought to have been cited. Accordingly, the court found that the application could not be decided.

On appeal, the relief sought by the appellant was that the application to the High Court should be granted. The respondent argued that the relief sought could not be granted, as to grant it would necessitate a decision on the merits of the application, when the merits had neither been determined in the court a quo nor made the subject of the grounds of appeal. It was also submitted that the notice of appeal was invalid by reason of the fact that it sought a remedy which the Supreme Court was not competent to grant. No application was filed for amendment but, in his heads of argument, counsel for the appellant indicated that the relief now being sought was a remittal of the matter to the High Court, before a different judge, for a decision on the merits of the matter. The question was whether this fact rendered the notice of appeal fatally defective because, if it did, the notice of appeal was null and void and could not be saved by an amendment.

Held, that r 29 of the Supreme Court Rules 1964 requires simply that the exact nature of the relief sought be stated in the notice of appeal. Thus, in so far as the prayer was for the appeal to be allowed and the application to be dismissed with costs, there was prima facie compliance with the rule. It is not necessary that the relief sought must be one which the court could grant and that a prayer which the court could not competently grant rendered the notice of appeal null and void. Once the prayer clearly sets out the nature of the relief sought, r 29(1)(e) has been complied with. The court can and may amend the notice of appeal upon application being made before the hearing, subject to the rules governing applications of such nature.