Tinashe M. Zenda v Veronica Duro and Others

The appellant, a legal practitioner with 19 years' experience, was appointed executor dative to the estate of the late Micah Duro (father/ex-husband/brother of the respondents). A dispute arose over estate distribution, leading the respondents to file fraud charges with the CID Serious Frauds Squad. The appellant was arrested and detained for four days. The fraud charge was abandoned and replaced with three charges: theft, perjury/supplying false information, and making a false inventory. The appellant was remanded on $20 bail and appeared in court several occasions. On 18 February 2014, he was acquitted. The appellant then sued the respondents for malicious prosecution claiming $14,000 loss of income, $25,000 legal costs, and $100,000 for contumelia and deprivation of liberty. The respondents filed a plea disputing malice. The High Court ordered the respondents to provide a copy of the alleged notice of appeal within five days, failing which their defence would be struck out. They failed to comply. The appellant filed an affidavit in proof of damages and abandoned his claims for loss of business and legal fees, seeking only damages for malicious prosecution. The High Court dismissed the request for default judgment, finding insufficient evidence of the elements of malicious prosecution. The appellant appealed but failed to serve the notice of appeal on the respondents, who only became aware through the Registrar's notice to inspect the record.

• Whether respondents whose defence was struck out in the court a quo have a right of audience before the Supreme Court in an appeal against a judgment in their favour
• Whether respondents must be served with a notice of appeal in terms of Rule 29 of the Supreme Court Rules despite being barred in the lower court
• Whether Rule 83 of the High Court Rules (prohibiting barred parties from appearing in subsequent proceedings) applies to appeal proceedings before the Supreme Court
• Whether failure to serve a notice of appeal on cited respondents constitutes a fatal irregularity

The appeal was struck off the roll, with each party paying its own costs.

The ratio decidendi is: (1) Respondents whose defence has been struck out in the High Court have a right of audience before the Supreme Court in an appeal against a judgment in their favour, as they have an interest in defending that judgment and stand to be adversely affected if it is set aside; (2) Rule 83 of the High Court Rules, which bars a party from appearing in subsequent proceedings while under a bar, applies only to proceedings before the High Court and not to Supreme Court appeals, which are governed by the Supreme Court Rules 1964; (3) Rule 29 of the Supreme Court Rules requires service of the notice of appeal on all cited respondents; (4) Failure to serve a notice of appeal on cited respondents in accordance with Rule 29 is a fatal irregularity that nullifies the entire appeal; (5) The fundamental nature of an appeal requires both an appellant and a respondent - where relief is sought against respondents, they must be properly served to enable participation in the proceedings.

The court observed that this was a novel issue with no precedent in Zimbabwe or South Africa dealing with the propriety of a respondent non-suited in a lower court participating in the appeal process. The court also noted that counsel for the appellant admitted that despite diligent search through law reports, he had found no authority dealing with this issue. The court's decision to award costs on the basis that each party pay its own costs was made in recognition of the novel nature of the issue and the fact that supplementary heads of argument had been required from both parties to address the point. The court did not reach the merits of the appeal regarding whether the requirements for the delict of malicious prosecution had been established, as the procedural irregularity was dispositive of the matter.

This case establishes important principles regarding civil procedure and appellate practice in Zimbabwean law: (1) It clarifies that parties whose pleadings have been struck out in the lower court retain a right of audience on appeal where the judgment under appeal is in their favour and they stand to be adversely affected if it is set aside; (2) It confirms that Rule 83 of the High Court Rules (barring parties from appearing while under a bar) applies only to High Court proceedings and not to Supreme Court appeals; (3) It emphasizes that compliance with Rule 29 of the Supreme Court Rules (requiring service of notice of appeal on respondents) is mandatory, and failure to comply constitutes a fatal irregularity; (4) It reinforces the fundamental principle that an appeal requires both an appellant and a respondent, and cited respondents must be served to enable them to participate in proceedings where relief is sought against them. The case provides important guidance on the interplay between High Court and Supreme Court rules and the rights of parties in default judgment scenarios on appeal.