Simon Chinganga v Munashe Shava, Tapson Madzivire and Adam Bede Manufacturing (Private) Limited

The applicant and first respondent were in dispute over the first respondent's shareholding in the third respondent company (Adam Bede Manufacturing). The first and second respondents purchased Hunting Furniture through a Special Purpose Vehicle (SPV), with the applicant initially acting as a nominal shareholder for the first respondent due to a conflict of interest situation. When the conflict ceased, the first respondent sought to assume his true role as shareholder and director, which the applicant resisted, claiming to be a 50% shareholder in his own right. The parties negotiated a restructured shareholding agreement (40 shares to second respondent, 30 to first respondent, 20 to applicant, 10 reserved), which the applicant refused to sign. The High Court granted a declaratory order confirming the first respondent's 30% shareholding and directorship. The applicant appealed to the Supreme Court (SC 99/20), but the appeal was struck off the roll by consent on 24 November 2020 for failure to file proper heads of argument. The applicant then filed an application for reinstatement of the appeal.

• Whether the application for reinstatement was brought under the proper legal framework (Rule 70 of the Supreme Court Rules, 2018 or Paragraph 5 of Practice Direction No. 3 of 2013)
• Whether an appeal that was struck off the roll for being fatally defective could be reinstated
• Whether the grounds of appeal were fatally defective for being vague, prolix and embarrassing
• Whether the applicant properly rectified the defects within the prescribed time periods

1. The application is struck off the roll. 2. The applicant shall pay the first respondent's costs at the scale of legal practitioner and client.

An appeal that has been struck off the roll for being fatally defective cannot be reinstated under Rule 70(2) of the Supreme Court Rules, 2018 or Paragraph 5 of Practice Direction 3/13. Such an appeal is a nullity. The proper remedy is to apply for condonation and extension of time within which to file a fresh notice of appeal within the 30-day period provided in the Practice Direction. Grounds of appeal must clearly and unambiguously specify what findings of fact or rulings of law are challenged; grounds that are vague, embarrassing, or so widely cast as to leave the appellant free to canvass every finding are fatally defective and render the appeal incapable of reinstatement.

The court noted with disapproval that legal practitioners continue to draft vague and unacceptable grounds of appeal despite consistent warnings from the courts since R v Emerson 1957 R&N 743 (SR). Examples of unacceptable grounds include: 'the learned magistrate erred in accepting the complainant's evidence', 'the conviction is against the weight of evidence', 'the evidence does not support the conviction', or 'the conviction is wrong in law'. The court emphasized that to foist fatally defective grounds upon an appeal court would constitute an abdication of the gate-keeping responsibility and would waste valuable judicial time. The court also commented that the unsigned restructuring agreement could be relied upon as creating a prima facie binding contract in light of the surrounding circumstances and prior dealings, shifting the burden to the party disputing its authenticity to show it was not intended to be binding.

This case provides important guidance on the distinction between different types of appeals that are removed from the court roll and the appropriate remedies for each. It clarifies that Paragraph 5 of Practice Direction 3/13 does not provide a mechanism to reinstate fatally defective appeals that have been struck off; rather, the proper remedy is to apply for condonation and extension of time to file a fresh appeal. The judgment also reinforces longstanding principles regarding the drafting of grounds of appeal, condemning vague, prolix or widely-cast grounds that fail to specify the particular findings of fact or law being challenged. The case serves as a stern warning to legal practitioners about the consequences of filing defective appeals and improperly drafted grounds of appeal.