Martin Jongwe v National Foods Limited and Kabasa J (as Judge of the Labour Court)

The applicant, a self-represented former employee of the first respondent, filed an application on 23 October 2020 for reinstatement of his appeal in case number SCB 33/20 in terms of Rule 70(2) of the Supreme Court Rules, 2018. The applicant had a lengthy litigation history stemming from a Labour Court decision on 22 May 2015 that struck off his appeal. After unsuccessfully seeking leave to appeal to the Supreme Court, he attempted to review the Labour Court decision in the High Court, which was struck off on 21 September 2017. His subsequent application for condonation and extension of time was dismissed by Mathonsi J on 14 June 2018. He then sought leave to appeal against Mathonsi J's final judgment, which Mabikwa J correctly dismissed in an ex tempore judgment on 15 July 2019, with written reasons provided on 12 March 2020. The applicant filed a notice of appeal on 11 May 2020 against the written judgment dated (incorrectly) 13 March 2020. He failed to inspect the appeal record within the prescribed period, and the Registrar deemed the appeal abandoned and dismissed by letter of 6 October 2020 in terms of Rules 17(11) and (12).

• Whether the notice of appeal filed on 11 May 2020 was valid and compliant with Rule 37(1)(a) of the Supreme Court Rules
• Whether the notice of appeal should have been filed within 15 days of the ex tempore judgment of 15 July 2019 rather than the written reasons of 12 March 2020
• Whether the relief sought in the notice of appeal was sufficiently specific to comply with Rule 29(1)(a) to (f)
• Whether the application for reinstatement should be granted
• Whether costs on a higher scale were appropriate

1. The application for reinstatement of the appeal in case No. SCB 33/20 was struck off the roll. 2. The applicant was ordered to pay the first respondent's costs on the scale of legal practitioner and client.

Where an ex tempore judgment is delivered orally and written reasons are supplied later, the notice of appeal must be filed within the prescribed period (15 days) from the date of the oral judgment, not from the date of the written reasons. A notice of appeal that fails to comply with the mandatory requirements of Rule 37(1)(a) (including citing the correct date of judgment) and Rule 29(1)(a)-(f) (including specifying the exact relief sought on appeal) is fatally defective and constitutes a nullity that cannot be amended. There must be something valid to amend; a nullity cannot be amended.

KUDYA AJA observed that the applicant was "a tenacious serial litigant" and noted with disapproval that despite conceding in another matter (SC 79/2020) that it was erroneous to seek leave to appeal against the final and definitive order of Mathonsi J, the applicant persisted "for incomprehensible reasons to do with his alleged right to a fair trial" in seeking to appeal against the correct order of Mabikwa J. The Court commented that this approach constituted an abuse of court process. The Court quoted extensively from Innocent Kadungure v Cheryl Chandi Kadungure SC 19/07 where ZIYAMBI JA lamented that "infringement of this Rule carries on unabated despite the fact that the attention of legal practitioners continues to be drawn to the provisions thereof," resulting in many appeals being struck off with costs borne by appellants. The Court noted that although the applicant was a self-actor and not a legal practitioner, "he professes a deeper knowledge of the rules of this Court than the average layman."

This case reinforces important procedural principles in Zimbabwean appellate practice: (1) the fundamental rule that where an ex tempore judgment is delivered with written reasons following later, the notice of appeal must be filed within the prescribed period from the oral judgment, not the written reasons; (2) the mandatory nature of compliance with Supreme Court Rules regarding notices of appeal, particularly the requirement to cite the correct date of judgment and to specify the exact relief sought; (3) non-compliance with these mandatory rules renders a notice of appeal a nullity that cannot be cured by amendment; (4) serial litigants who persist in pursuing hopeless appeals despite conceding errors may face costs on a higher scale as a sanction for abuse of process. The case also illustrates judicial intolerance for continued procedural irregularities despite repeated warnings to practitioners and litigants.