Diamond Insurance Company (Private) Limited v (1) Associated Newspapers of Zimbabwe (Private) Limited (2) Renaissance Asset Management (Private) Limited

The appellant noted an appeal on 7 May 2001 against a High Court judgment delivered by Hlatshwayo J on 10 April 2001. On 19 September 2001, the Registrar called upon the appellant to submit heads of argument in terms of Rule 43(1) of the Supreme Court Rules. The appellant's legal practitioners failed to file heads of argument by the deadline of 26 October 2001. Instead, on 26 October 2001, they filed a document titled "Court Application: Withdrawal of Appeal" seeking an order to remove the matter from appeal and refer it back to the High Court for submission of further evidence. The appellant claimed to have gathered material evidence with an important bearing on the outcome. By virtue of Rule 44 of the Supreme Court Rules, the appeal was deemed to have been dismissed on 26 October 2001 for failure to file heads of argument. The appellant subsequently engaged new legal practitioners who filed a Notice of Application for Reinstatement of Appeal on 22 February 2002. The matter was set down for hearing on 25 February 2002, and the appellant applied for a postponement pending determination of the reinstatement application.

• Whether the Supreme Court was seized with the matter given that the appeal had been deemed dismissed under Rule 44(1) for failure to file heads of argument
• Whether a postponement should be granted to allow the application for reinstatement to be determined
• What was the proper procedure for seeking to adduce further evidence on appeal
• Whether costs should be awarded against the appellant for adopting the wrong procedure

The application for postponement was granted. The matter was postponed sine die. The costs of the postponement were ordered to be borne by the appellant. The Court deferred determination of all other issues, including the application for reinstatement and the merits of the appeal, to the resumed hearing.

Where an appeal has been deemed dismissed for failure to file heads of argument in terms of Rule 44(1), but the appellant files an application for reinstatement, the Court may grant a postponement of related proceedings to allow the reinstatement application to be determined, particularly where refusing to do so would result in further applications that would require argument on the merits in any event. The proper procedure for seeking to adduce further evidence on appeal is to file heads of argument accompanied by an application under Rule 39, demonstrating that the relevant criteria for admission of further evidence have been satisfied. The Court may then either hear the evidence itself or remit the case to the lower court. An appellant cannot circumvent appeal procedures by purporting to 'withdraw' an appeal and seeking remittal for further evidence without following the proper procedural requirements.

Ebrahim JA observed that the appellant may well have a legal basis to cause his former legal practitioner to personally pay the costs which resulted through the legal practitioner's incompetence, attributing the wrong procedure adopted to "unprofessional ignorance of the rules of procedure". However, the Court noted it could not make such an order without giving the legal practitioner an opportunity to be heard, and left the matter to the appellant to pursue his legal remedies. The judge also noted that in terms of section 33(2) of the Interpretation Act, when calculating the fifteen-day period for filing heads of argument, the date of delivery of the Registrar's letter is not included, nor are weekends.

This case illustrates the Zimbabwean Supreme Court's approach to procedural irregularities and the deemed dismissal of appeals under Rule 44(1) of the Supreme Court Rules for failure to file heads of argument. It demonstrates the Court's willingness to adopt a pragmatic approach to prevent multiplicity of proceedings, even where legal practitioners have been incompetent and adopted wholly wrong procedures. The case also clarifies the proper procedure for seeking to adduce further evidence on appeal, namely through an application under Rule 39 of the Supreme Court Rules accompanying heads of argument, rather than seeking to withdraw an appeal. While this is a Zimbabwean case, it would be persuasive in South African jurisprudence on similar procedural matters given the shared legal heritage and similar court rules.