The applicant sought an urgent chamber application to have a notice of appeal filed by the respondents in SC 17/08 declared of no force and effect and struck out. The notice of appeal related to a judgment by Makarau JP in HC 345/08. The applicant contended that the notice of appeal was invalid on two grounds: first, that Makarau JP's judgment was an interim/interlocutory judgment requiring leave to appeal under s 43 of the High Court Act, which leave was neither sought nor granted; and second, that the notice of appeal was filed out of time and therefore did not comply with the Rules of the Supreme Court, particularly Rule 30.
The application was dismissed. No order was made as to costs, with costs to be costs in the cause.
A Judge in Chambers does not have inherent jurisdiction to strike out an appeal for failure to comply with the Rules of the Supreme Court outside the specific context provided in Rule 31(7). Where a notice of appeal does not comply with Supreme Court Rules (as opposed to statutory provisions), the defect is not incurably defective because the Court has discretion to condone non-compliance. A Judge in Chambers should not preclude the full Court from exercising its discretion to determine whether failure to comply with the Rules should be condoned. A distinction must be made between notices of appeal that are invalid due to failure to comply with statutory provisions (incurably defective, no discretion) and those invalid due to failure to comply with Supreme Court Rules (curable, discretionary condonation available).
The Chief Justice noted that Rule 31(7) specifically empowers a Judge in Chambers to strike out an appeal after dismissing an application for leave to appeal or extension of time within which to note an appeal. In such circumstances, the Judge acts within the Supreme Court Rules. The Chief Justice also observed that once an appeal is noted to the Supreme Court, the Court is seized with the matter, which is necessary to enable the Court to determine the validity of the notice of appeal. The Chief Justice expressed doubt about whether a Judge sitting alone in Chambers enjoys inherent jurisdiction to strike out appeals, as this would pre-empt the discretion of the full Court to grant condonation.
This case clarifies the jurisdiction of the Supreme Court and individual judges sitting in Chambers in Zimbabwe. It establishes important principles regarding the distinction between statutory non-compliance (incurable defects) and non-compliance with court rules (discretionary condonation). The judgment reinforces the principle that a single judge in Chambers should not usurp the full Court's discretion to condone non-compliance with procedural rules. It also clarifies the interpretation of s 43 of the High Court Act regarding interlocutory judgments and the requirement for leave to appeal, particularly in relation to interdicts.