Tel One (Private) Limited v Communication and Allied Services Workers' Union of Zimbabwe

The applicant filed a notice and grounds of appeal against a High Court judgment. However, the applicant failed to file with the Registrar of the High Court a written undertaking for payment of the costs of preparing the appeal record as required by Rule 34 of the Supreme Court Rules. Instead, the applicant's counsel took it upon himself to prepare the appeal record at the applicant's expense, citing delays at the Registrar's office due to lack of stationery and equipment. The record was prepared and submitted to the Registrar, but by this time, the Registrar had issued a letter notifying that the appeal had lapsed due to non-compliance with Rule 34. The applicant then applied for reinstatement of the appeal. The underlying appeal concerned a labour dispute where the High Court had found in favor of the respondent union regarding collective job action by Tel One employees.

• Whether the applicant had a reasonable explanation for failing to submit the written undertaking as required by Rule 34 of the Supreme Court Rules
• Whether the applicant's prospects of success on appeal were good enough to warrant reinstatement
• Whether non-compliance with a mandatory procedural rule should be visited upon the client due to the legal practitioner's actions
• Whether preparation of the appeal record by the applicant itself, rather than leaving it to the Registrar, mitigated the failure to comply with Rule 34

1. The appeal in SC 337/05 was reinstated. 2. There was no order as to costs.

Where an applicant fails to comply with a mandatory procedural rule (Rule 34 requiring written undertaking for costs of preparing appeal record) but takes alternative steps that fulfill and promote the basic purpose of that rule (preparing the appeal record at own expense to expedite the process), the default may be greatly mitigated and a reasonable explanation established. Non-compliance with procedural rules will not automatically be visited upon the client where the legal practitioner's actions, though technically deficient, were taken to advance the appeal and fulfill the substantive purpose of the rule. For reinstatement of an appeal, an applicant must demonstrate both a reasonable explanation for the delay and good prospects of success on appeal.

GWAUNZA JA observed that applicants should not enjoy the license of usurping the Registrar's responsibilities and then disregarding the rules with impunity. The rule remains in existence and can only cease to operate if repealed according to laid down procedures. The court noted that the legal practitioner, being aware of Rule 34, should have informed the Registrar that the applicant would prepare the record at its own expense rather than pay for the Registrar to do so - there was no reason why the legal practitioner could not have paused to submit a note to that effect. The court distinguished procrastination from inadvertence, noting that procrastination involves putting off what one knows one has to do, whereas in this case the legal practitioner was not idle but took steps to advance the appeal.

This case establishes important principles regarding the application of procedural rules in appellate practice in Zimbabwe. It demonstrates that courts will apply a purposive approach to mandatory procedural rules, particularly where the substance of what the rule requires has been achieved even if the form has not been strictly complied with. The case shows that courts will consider whether a party's actions, though technically non-compliant, actually advanced the purpose of the rule in question. It also reinforces the principle that applications for reinstatement require both a reasonable explanation for non-compliance and good prospects of success on appeal.