LETWIN RWODZI (N.O.)
HIGH COURT OF ZIMBABWE
HARARE, 28 March, 8 & 13 April 2022
T Biti, for the applicant
F Kachidza with M Reza, for the 2nd respondent
During criminal proceedings against the applicant before the second respondent, a Regional Magistrate, the applicant applied for referral to the Constitutional Court in terms of s 175 (4) of the Constitution of Zimbabwe. The application failed and the ruling is now subject of this court application for review.
The court application for review is brought in terms of Order 33 of the old High Court Rules 1971. At the commencement of the hearing on 28 March 2022 I raised two issues with counsel for the applicant. The first was that page 2 of the ruling by the magistrate was missing from the record. That has since been rectified by providing the missing page. The second issue was whether the application was properly before the court, in other words whether the application complies with r 257 of the High Court Rules 1971. The matter was then postponed to 8 April 2022 to allow applicant’s counsel to address the court on this point.
WHETHER THE APPLICATION COMPLIES WITH RULE 257
Rule 257 provides that:
“257. Contents of notice of motion
The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.” (my emphasis).
A reading of this simple rule shows that there are two mandatory things an applicant is obliged to do in a court application for review. The first one is to state the grounds for review. The second one is to state the relief prayed for. These two must appear ex facie the court application.
In casu the applicant merely stated the grounds for review ex facie the court application and does not do so with respect to the relief sought even by reference to the draft order. The relief sought by reference to the draft order is only found in the founding affidavit.
Mr Biti concedes that the application does not ex facie set out the exact relief prayed for. However, he argued that the draft order is incorporated in the application. That in my view is not a cure for failure to state the relief ex facie the application.
Mr Biti referred to a number of case authorities the majority of which dealt with the absence of the grounds of review ex facie the court application. His main argument was that there was no single authority in which the court dismissed the application on the basis of the absence of the relief being sought ex facie the application other than on the absence of the grounds for review. Counsel argued that failure to plead relief ex facie the application was not a material non-compliance. I disagree as shall be demonstrated by case law.
The first case relied upon by Mr Biti of Minister of Labour & Ors v Pen Transport (Pvt) Ltd 1989 (1) ZLR 293 (S) at 295 G – 296 D, the court send a strong warning to legal practitioners for failure to comply with r 257 thus:
“The notice of motion itself was not in accordance with proper practice. It simply asked for the relief particularised in an annexed draft order, which was that the determination be set aside and the dismissal of the employee confirmed. I am bound to reiterate the stricture of Greenfield J in Utterton v Utterton 1969 (2) RLR 404 (GD) at 409 F-G; 1969 (4) SA 391 (R) that the requirement of r 227 (1) of the High Court Rules 1971, that an applicant should append to his notice of motion a draft of the order he seeks, does not relieve him of the necessity to ensure that the nature of the relief appears ex facie the notice.”
In Rimayi v Minister of National Supplies & Anor S 86-90, Gubbay ja repeated what he had said in the Pen Transport case, supra, about the necessity to comply with r 257 and said:
“Non-compliance will bar the grant of relief.”
In Chataira v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H) at 34 G-H and 35 A, smith j had this to say about non-compliance with r 257:
“As regards the failure on the part of Chataira to comply with r 257 of the High Court Rules, it seems to me that such non-compliance would constitute good grounds for dismissing this application. Rule 257 requires that an application to bring proceedings under review shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. In the Pen Transport, Mushaishi and Marumahoko cases referred to earlier, the courts clearly stated that failure to comply with r 257 constituted a fatal flaw. Despite those warnings, legal practitioners still fail to comply with the rule. The time has surely come to say enough is enough and to dismiss the defective applications without considering the merits.” (emphasis is mine)
On appeal by Chataira under case number SC 83/2001, the Supreme Court recited this passage from the judgment of the trial court and concluded that:
“In my view these observations are beyond criticism.”
While in Dandazi v Wankie Colliery Co Ltd 2001 (2) ZLR 298 (H) out 299 E-H and 300 A-B the court condoned the failure to comply with r 257 because the significance of the rule had not been brought to the attention of legal practitioners with sufficient force and that the respondent was not prejudiced by the failure to comply; time has come for parties who do not comply with the rules not to find refugee behind the phrase; “there is no prejudice to the other party.”
Commenting on the need to comply with requirements of r 257 the court in the Dandazi case stated:
“This is not an idle requirement…The consequence of that failure is that the matter is not properly before the court and the applicant must not be heard. It is important, therefore, that legal practitioners should comply with r 257 in every case if they are to avoid the embarrassment of the matter being struck off for failure to comply with the rules of this court.”(emphasis is mine).
In Mambo v National Railways of Zimbabwe & Anor 2003 (1) ZLR 347 (H) at 350 C-H and 351 A-C. The court recognized past warnings for failure to comply with the requirements of rule 257and warned that such failure may result in the dismissal of the application.
In Gonye v Mtombeni N O and Others HH 356/17 the learned Judge Makoni J as she then was, after analyzing a number of authorities on the application of r 257 stated:
“What is established by the above authorities are two essential elements i.e. that the application must be by way of court application and in it must be stated shortly and clearly the grounds upon which the applicant seeks to have proceedings set aside or corrected and the exact relief prayed for.”
Mr Biti’s argument remained that the defect in the past cases was the omission to state grounds of review ex facie the court application, and that the omission of the relief sought was not material. In my view both the grounds of review and relief sought are equally important and the word “shall” which is peremptory in nature applies with equal force to the two. This explains the use of the conjunction “and”. The effect of omitting either of the requirements may lead to the same consequences. It is on the realization of the continued error in the application of rule 257 by legal practitioners that the legislature has seen it fit to address this perennial problem by introducing r 62 (2) in the current High Court Rules 2021 in the following words:
“The court application shall state shortly and clearly the ground upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for all of which shall appear on the face of the court application.” (my emphasis).
While Ms Kachidza for the second respondent argued that the matter was not properly before the court for non-compliance with r 257, her argument was of little assistance because no authority was referred to. She urged the court to strike the matter off the roll.
Ms Kachidza was of the view that the court cannot condone the failure to abide with the rules because no such application was made by the applicant. Mr Biti on the other hand said such an application was not necessary because condonation in this instance was by operation of law by virtue of r 4C as was applied in the case of Oasis Medical Centre Private Limited v Rosemary a.m. Beck & Other HH84/2016.
Rule 4C provides that:
“The court or a judge may, in relation to any particular case before it or him, as the case may be—
(a) direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;
(b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.” (emphasis is mine).
In casu it has not been shown that the departure, (omission of the relief prayed for in the notice) is necessary in the interest of justice. I see no room for the application of r 4C. While in some instances the court has gone as far as dismissing the application for non-compliance with r 257, in casu, such a drastic action is not called for because none of the respondents raised the point. The second respondent had to ride on a point raised by the court. The fact, however, remains that there is no proper application before the court.
WHETHER THE COURT CAN MERO MOTU RAISE A PROCEDURAL ISSUE WITH A PARTY
Mr Biti submitted that it was irregular for the court to meru motu raise a procedural issue with the applicant. For this proposition he referred to the case of Proton v Takaendesa 2005 (1) ZLR 60. I have thorough read this case which was an appeal from a determination on a labour dispute. In the Proton case the Chairman of the Labour Tribunal had introduced a matter on the suspension of the respondent based on his own reading of the record and made a determination on it without it being argued by the parties.
In casu, I think it is within the court’s power to raise with any party what prima facie appears a non-compliance with the rules. What is crucial though is for the court not to make a determination of the issue raised without affording the parties an opportunity to be heard. In my view a court is not expected to proceed as if it were blind folded to its own rules.
- The application be and is hereby struck off the roll with no order as to costs.
Tendai Biti Law, applicant’s legal practitioners
The National Prosecuting Authority, second respondents’ legal practitioners