Gladys Dekwe v Bern-Win Development Company and Untu Capital Limited

The second respondent (Untu Capital Limited) obtained a summary judgment from the Magistrates' Court for the eviction of the appellant (Gladys Dekwe) and first respondent (Bern-Win Development Company) from stand number 2860 Pleasant Street, Chadcombe, Harare. The second respondent claimed to be the title holder of the property, having purchased it through a Sheriff's sale and obtained deed of transfer number 3317/2019. Despite a notice of eviction, the appellant and first respondent did not vacate by 30th August 2019. The appellant opposed the action, claiming there was a pending High Court matter challenging the sale of the property and denying the second respondent's ownership. The appellant was joined to the proceedings as second defendant and the Magistrates' Court granted summary judgment in favor of the second respondent, ordering eviction, payment of holding over damages at ZWL $300 per month from September 2019, and costs. The appellant appealed to the High Court on grounds including lack of jurisdiction, that she had a bona fide defence, and the defence of res litigiosa.

• Whether the notice of appeal complied with Rule 95(10)(d) of the High Court Rules, 2021 by failing to pray for the success of the appeal before seeking the setting aside of the judgment
• Whether the defect in the notice of appeal was fatal
• Whether Order 31 of the Magistrates Court Rules, 2019 or Rule 95 of the High Court Rules governed the form of the notice of appeal
• Whether the Magistrates' Court had jurisdiction to preside over the common law application (substantive issue not reached)
• Whether the appellant had a bona fide defence to the claim (substantive issue not reached)
• Whether the defence of res litigiosa constituted a bona fide defence (substantive issue not reached)

The point in limine was upheld and the appeal was struck off the roll with costs.

A notice of appeal must comply with Rule 95(10)(d) of the High Court Rules, 2021 by stating the exact nature of the relief sought. This includes an explicit prayer for the success of the appeal before praying for the setting aside of the judgment a quo and the substitution of a new order. The provision is mandatory and peremptory in nature, and failure to comply constitutes a fatal irregularity that renders the notice of appeal invalid. It is not for the court to deduce what the appellant wants to happen to the appeal; the relief must be clearly and explicitly stated. While Order 31 of the Magistrates Court Rules governs the time and general procedure for appeals from the Magistrates' Court to the High Court, the High Court Rules govern the form and content of processes filed within the High Court, including notices of appeal.

The court noted the appellant's argument that the interests of justice should override technicalities, particularly given that the matter concerned residential premises and the appellant could lose her accommodation. However, the court did not accept this argument as sufficient to override the mandatory procedural requirements. The court also observed that the appellant's counsel failed to substantiate the assertion that this appeal fell within the class of appeals excluded from the operation of Rule 95 under Rule 4(c) and (d), which would require showing a particular enactment providing for a special procedure or special rules applicable to this type of appeal.

This case reinforces the strict application of procedural requirements for notices of appeal in Zimbabwean courts, particularly the mandatory requirement under Rule 95(10)(d) of the High Court Rules, 2021 that a notice of appeal must state the exact nature of the relief sought, including an explicit prayer for the success of the appeal before seeking any substituted order. It confirms that these are peremptory provisions and that non-compliance constitutes a fatal irregularity, even where the appellant's intentions may appear obvious. The case demonstrates that technical compliance with rules of procedure cannot be overridden by appeals to the interests of justice or the merits of the underlying dispute. It also clarifies that while Order 31 of the Magistrates Court Rules governs timing and general procedure for appeals from the Magistrates' Court, the High Court Rules govern the form and content of processes filed in the High Court, including notices of appeal.