Dabengwa & ZAPU v ZEC & Others (Civil Appeal SC 418 of 2015; SC 32 of 2016) [2015] ZWSC 232 (12 January 2015)
A notice of appeal that does not comply with Rule 29 is fatally defective and cannot be amended; the only remedy is to strike the matter off the roll.
Source-derived case information.
- Citation
- [2015] ZWSC 232
- Parties
- Applicant: Dumiso Dabengwa; Applicant: Zimbabwe African People’s Union; Respondent: Zimbabwe Electoral Commission; Respondent: The Chairperson of the Zimbabwe Electoral Commission; Respondent: Chief Elections Officer; Respondent: Minister of Justice, Legal & Parliamentary Affairs
- Court
- Supreme Court of Zimbabwe
- Jurisdiction
- Zimbabwe
- Case Number
- Civil Appeal SC 418 of 2015 ; SC 32 of 2016
- Procedural Posture
- Civil Appeal / Preliminary Objection
- Outcome
- struck off the roll
- Legal Topics
- Notice of Appeal, Compliance With Court Rules, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dumiso Dabengwa
Applicant
Zimbabwe African People’s Union
Applicant
Zimbabwe Electoral Commission
Respondent
The Chairperson of the Zimbabwe Electoral Commission
Respondent
Chief Elections Officer
Respondent
Minister of Justice, Legal & Parliamentary Affairs
Respondent
Procedural Posture
Civil Appeal / Preliminary Objection
Legal Issues
- 1 Whether the notice of appeal complies with Rule 29 of the Supreme Court Rules
- 2 Whether a fatally defective notice of appeal can be amended
Ratio Decidendi
A notice of appeal that does not comply with Rule 29 is fatally defective and cannot be amended; the only remedy is to strike the matter off the roll.
Court Disposition
struck off the roll
Orders
- The matter is struck off the roll with no order as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. SC 32/2016 Civil Appeal No. SC 418/2015 (1) DUMISO DABENGWA (2) ZIMBABWE AFRICAN PEOPLE’S UNION v (2) (1) ZIMBABWE ELECTORAL COMMISSION THE CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION CHIEF ELECTIONS OFFICER (3) (4) MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS SUPREME COURT OF ZIMBABWE MALABA DCJ, GOWORA JA & MAVANGIRA JA HARARE, JANUARY 12, 2015 T Mafukidze, for the applicants T M Kanengoni, for the respondents MALABA DCJ: The preliminary question raised is whether the document filed as the notice appeal complies with r 29 of the Supreme Court Rules. Rule 29 requires that a notice of appeal shall state whether the appeal is against the whole or part of the judgment. The rule is mandatory in its terms and has been construed as such in numerous decisions of this Court. The principle emanating from these authorities is that a document which fails to comply with the requirements of the rule is fatally defective and cannot be amended. The reason is that there will be nothing to amend. In this case, the document states that the appeal is “against part of the judgment and the whole order”. Mr Mafukidze concedes that the document as it stands does not comply with the requirements of r 29. The court agrees with Mr Kanengoni that once the defect is conceded the purported notice of appeal is fatally defective. On the authorities of this Court, the purported notice of appeal cannot be amended. Judgment No. SC 32/2016 Civil Appeal No. SC 418/2015 The only remedy available is an order striking the matter off the roll. The matter is struck off the roll with no order as to costs. GOWORA JA: I agree MAVANGIRA JA: I agree Zimbabwe Lawyers for Human Rights, applicants’ legal practitioners Nyika Kanengoni & Partners, 1st, 2nd & 3rd respondents’ legal practitioners