Bobby Dube & 8 Others v TM Supermarkets (Private) Limited

The applicants noted an appeal (SCB 30/22) to the Supreme Court on 2 March 2022 against a Labour Court judgment delivered on 23 July 2021, which had ruled against their claims for legitimate expectations of reemployment after working on fixed-term contracts of 4-7 years. The appeal was set down for hearing on 20 July 2022 in Bulawayo. On that date, their counsel Mr Mambara was indisposed and sent a correspondent to apply for postponement, which was granted to 21 July 2022. However, there was no appearance at all for the applicants on 21 July 2022. Consequently, the full Court dismissed the appeal for want of prosecution with costs. The applicants then brought this chamber application seeking reinstatement of their appeal in terms of Rule 70(2) of the Supreme Court Rules, 2018, arguing they were not in wilful default as their legal practitioner had fallen ill.

• Whether an application for reinstatement could competently be made under Rule 70(2) in the absence of notification by the Registrar in terms of Rule 70(1)
• Whether Rule 70(2) applies to appeals dismissed by the full Court for want of prosecution or only to appeals deemed dismissed by the Registrar
• Whether a single Judge sitting in chambers has jurisdiction to set aside or reinstate an appeal dismissed by the full Court
• The proper interpretation and application of Rule 70 of the Supreme Court Rules, 2018

The application was struck off the roll with no order as to costs by consent, the court having found it to be incompetent.

1. Rule 70(2) of the Supreme Court Rules, 2018 applies only to appeals that are deemed to have lapsed, regarded as abandoned, or deemed to have been dismissed in terms of the Rules, and only after the Registrar has issued notification under Rule 70(1). It does not apply to appeals actually dismissed by the Court for want of prosecution. 2. A single Judge of the Supreme Court sitting in chambers has no jurisdiction to reinstate or set aside an appeal that has been dismissed by the full Court, unless such jurisdiction is expressly conferred by statute or the Supreme Court Rules. 3. The notification by the Registrar under Rule 70(1) is a jurisdictional prerequisite to invoking Rule 70(2) - without such notification, an application under Rule 70(2) is incompetent.

The Court noted by way of comparison that under the old Supreme Court Rules, 1964, Rule 25(6) proviso expressly authorized a single Judge to reinstate appeals dismissed for want of prosecution. The absence of similar express provision in the current Rules demonstrates that such jurisdiction no longer exists. The judge also observed that the concessions made by counsel were properly made, suggesting that legal practitioners should carefully consider jurisdictional issues before bringing applications. The Court's willingness to engage counsel and invite submissions on competency issues, even where the respondent was in default, demonstrates the Court's duty to ensure it does not exercise jurisdiction it does not possess.

This case clarifies important procedural issues regarding the Supreme Court Rules, 2018, particularly Rule 70. It establishes the proper scope and application of Rule 70(2) for reinstatement of appeals, emphasizing that it applies only to appeals deemed dismissed by operation of the Rules (following Registrar notification), not to appeals actually dismissed by the Court. The judgment also reaffirms the fundamental principle that a single Judge in chambers cannot exercise jurisdiction beyond that expressly conferred by statute or the Rules, and specifically cannot overturn decisions of the full Court. This case serves as important guidance on procedural competence and jurisdictional limitations in Supreme Court practice.