DOMBODZVUKA v CMED (PVT) LTD 2012 (2) ZLR 32 (S)

Flynote

Practice and procedure — res judicata — application for condonation of late noting of appeal and for extension of time — application heard by one judge and granted — applicant then failing to comply with rules regarding noting of appeal — appeal accordingly a nullity — further application made — such application dismissed — dismissal not nullifying earlier order — no further application possible

Headnote

The applicant had purported to note an appeal against a judgment of the Labour Court. He was out of time so he applied to the Supreme Court for condonation of the late noting of the appeal and for an extension of time. The application was granted by a Supreme Court judge in chambers, it being ordered that the applicant should file his notice of appeal and grounds of appeal within five days of the granting of the application. He noted an appeal and the matter was set down for hearing. At the hearing, the respondent pointed out that the applicant had failed to comply with the requirement that the notice be served on the Registrar of the Labour F Court. The matter was struck off on those grounds. Two days later, having regularised matters, the applicant again applied to the Supreme Court for condonation and an extension of time. The case was set down as an unopposed matter. A different judge, in chambers, eventually dismissed the application on the grounds that there were no prospects of success.

Several months later the applicant made yet another application for condonation and an extension of time. The applicant said that he needed clarity as to whether there were prospects of success, since there were two "conflicting" decisions of the court on this aspect. He submitted that the second judge had erred and misdirected himself by dismissing the second application for condonation and an extension of time, when the

A first judge had earlier acceded to a similar application on the same issue, that is, whether or not there were any prospects of success on appeal.

Held, that the effect of the judgment of the second judge was not to nullify the earlier order, because that earlier order was no longer operational. The first judge had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failedto comply with that order. The notice of appeal that was filed by the applicant was not only invalid but it was a nullity. That is the reason why the appeal was struck off the roll. As a result of such failure to comply by the applicant, there was no appeal before the court.

Held, further, 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. The only way this matter could be brought back to court is through a fresh application for condonation and an extension of time. This is what the applicant did. That application was placed before the second judge and was dismissed. This was a case where the principle of res judicata applied. The matter could not be heard again.