Zimbabwe Consolidated Diamond Company (Private) Limited v Adlecraft Investments (Private) Limited

The parties entered into a written contract mining services agreement on 8 February 2016 for an initial duration of twelve months. The respondent continued rendering services after the initial period pending negotiations on new contract rates. The parties failed to agree on new rates and the appellant terminated the agreement in April 2020. The appellant acknowledged debts in various letters dated 8 October 2019, 14 November 2019, and 13 April 2021. The respondent claimed USD 13,824,163.22 (later amended to USD 10,718,373.51 after applying the in duplum rule) for unpaid contract services. The appellant conceded owing USD 679,103.98 but disputed the larger amount. The High Court granted the respondent's urgent application and ordered the appellant to pay USD 10,718,373.51 plus interest at 2% per month and costs on an attorney-client scale. The appellant appealed. During the initial appeal hearing, the Supreme Court upheld a preliminary point that the appellant negated its right of appeal by partly paying the judgment debt. The Constitutional Court allowed direct access and remitted the matter for a hearing de novo.

• Whether the notice of appeal was fatally defective for failure to comply with Rule 37(1)(c) of the Supreme Court Rules, 2018, specifically whether the appeal should be against the whole judgment when the appellant conceded liability for USD 679,103.98
• Whether the notice of appeal was fatally defective for failure to comply with Rule 37(1)(e) regarding the relief sought
• Whether preliminary objections could be raised without prior notice in terms of Rule 51 of the Supreme Court Rules
• Whether urgency was properly established (grounds abandoned by appellant)
• Whether there were material disputes of fact requiring viva voce evidence (to be determined on merits)
• Whether the debt had prescribed (to be determined on merits)
• Whether the respondent was owed more than the acknowledged sum of USD 679,103.98 (to be determined on merits)

1. The preliminary objections regarding non-compliance with Rule 37(1)(c) and Rule 37(1)(e) of the Supreme Court Rules, 2018, were dismissed. 2. The appeal was directed to be heard on the merits. 3. Costs were ordered to be in the cause.

Where a court a quo makes a global order without separating acknowledged amounts from disputed amounts, an appellant may validly appeal against the whole judgment while tactically conceding liability for a portion thereof, and such an appeal does not render the notice of appeal fatally defective for non-compliance with Rule 37(1)(c) of the Supreme Court Rules, 2018. A relief sought in a notice of appeal is not fatally defective merely because it is inelegantly formatted, provided the relief is substantively competent and comprehensible - the court will look to substance over form in determining compliance with Rule 37(1)(e).

The Court observed that the appellant's abandonment of grounds relating to urgency was appropriate, as urgency findings are generally not appealable. The Court also noted that preliminary objections on points of law may be raised without formal notice under Rule 51, though this point was not definitively determined as it became moot given the dismissal of the objections on their merits. The Court commented favorably on the strategic and tactical approach taken by the appellant in structuring its appeal given the nature of the High Court's global order.

This judgment clarifies important principles regarding the formulation of notices of appeal in Zimbabwean civil procedure, particularly in cases where a party concedes partial liability but disputes the quantum of a global judgment. It establishes that an appellant may appeal against the whole judgment even while conceding a portion of liability, especially where the court a quo did not separate the acknowledged and disputed amounts in its order. The case also demonstrates the approach courts take to technical objections to appeals - substance over form - and that inelegant drafting alone does not render a notice of appeal fatally defective if the relief sought is substantively competent. The judgment further illustrates the procedural journey following Constitutional Court intervention and remittal for hearing de novo.