On 9 March 2009 the High Court made a spoliation order for the restoration of peaceful and undisturbed possession of Twyford Estate in Chegutu to the applicant at the same time directing the first respondent and all those claiming possession of the property through him to vacate the farm forthwith ...
On 9 March 2009 the High Court made a spoliation order for the restoration of peaceful and undisturbed possession of Twyford Estate in Chegutu to the applicant at the same time directing the first respondent and all those claiming possession of the property through him to vacate the farm forthwith failing which the Deputy Sheriff be authorized to remove them.
The spoliation order was issued in the form of a provisional order. It provided as follows:
“TERMS OF THE ORDER MADE
That you show cause to this Honourable Court why a final order should not be made in the following terms:
1. The applicant's right to quiet, undisturbed possession of Twyford Estate, Chegutu district, as further particularized in the High Court orders annexed to this application as Annexures '2' and '3' and all movables thereon including livestock (hereinafter called “the property”) be and is hereby confirmed. That it is further declared that such right shall continue to subsist until such time as the applicants…, should it become necessary or expedient…, are lawfully evicted from the property through a competent order of court having final effect.
2. It be and is hereby declared that the conduct of the 2nd respondent and all other persons acting in common purpose or association with him on or about the property from the 6th February 2009 until their removal, resulting in dispossession of applicants from their property, is unlawful for want of compliance with due process to obtain vacant possession of the property, and, accordingly, constitutes an unlawful spoliation of applicants' property.
3. Respondents pay the costs of this application, jointly and severally, the one paying the other to be absolved.
INTERIM RELIEF
That, pending determination of this matter, the applicants are granted the following relief:-
(a) It be and is hereby ordered that the status quo ante to applicants' possession control and occupation of Twyford Estate in the district of Chegutu prior to 2nd respondent and all other persons acting through him summarily occupying the property on the 6th February 2009 be and is hereby restored.
(b) 2nd respondent and all other persons claiming occupation and possession of the property and/or all other persons not being representatives, employees or invitees of applicants are directed to forthwith vacate the property removing all movable property that may have been introduced by them onto the property.
(c) To the extent that it becomes necessary or expedient, the Deputy Sheriff is hereby authorized and empowered to attend to the removal of the 2nd respondent and all other persons acting through him from the property so that the provisions of this order are executed and implemented in full.”
It is common cause that the order made by the learned Judge, in the form of interim relief, is a spoliation order.
On 11 March 2009, the first respondent, who was the second respondent to the application, appealed to the Supreme Court against the order. The Notice of Appeal contained all the matters required under Rule 29 of the Rules of the Supreme Court, 1964 (“the Rules”) for a valid Notice of Appeal. It stated that the order from which relief was being sought was a final and definitive order.
On 22 April, the applicant made an application, to a single Judge of the Supreme Court sitting in chambers, for an order striking the appeal off the roll on the ground that in terms of section 43(2)(d) of the High Court Act [Chapter 7:06] (“the High Court Act”), the order made by the learned Judge was an interlocutory order in respect to which no appeal lay to the Supreme Court without the leave of the Judge who made the order, or, if that was refused, without the leave of a Judge of the Supreme Court. Leave of the learned Judge had not been sought before the appeal was noted. The contention was that no appeal was pending before the Supreme Court.
The first respondent opposed the application on two grounds;
(i) The first point taken in limine was that a single Judge of the Supreme Court, sitting in chambers, has no power to grant the relief sought by the applicant.
The contention was that an appeal, the noting of which complied with the requirements of the Rules, is pending hearing by the Supreme Court until “the Court”, in the exercise of its jurisdiction, decides that in terms of the enactment creating the right of appeal no appeal lies against the order from which relief is sought.
The first respondent said that if the applicant intended to have the appeal struck off the roll it should have applied to the Supreme Court for the relief on a court application as required under Rule 39. It could also have raised the matter by way of a preliminary objection to the exercise by the Court of its jurisdiction to hear the appeal in terms of Rule 41 of the Rules.
Rule 39 provides that:
“Subject to the provisions of Rules 31, 36, 37 and 38 applications shall be by court application signed by the applicant or his legal representative and accompanied by an affidavit setting out any facts which are relied upon.”
Rules 31, 36, 37 and 38 relate to matters in respect to which it is specifically provided that relief can be sought by application to a Judge of the Supreme Court sitting in chambers or open court.
Striking an appeal off the roll is not one of the matters provided for under any of these Rules.
Rule 41 provides that:
“A party to an appeal who intends to rely on a preliminary objection to any proceedings or to the use of any document shall give notice in writing of the objection to the Registrar and to the opposite party. If the objection is to be taken at the hearing of an appeal three copies of the notice shall be given to the Registrar.”...,.
In reply to the point in limine, the applicant contended that a Judge of the Supreme Court, sitting in chambers, constituted “the Court” with power to grant the relief sought.
On the allegation that there was non-compliance with Rule 39 or Rule 41 the applicant said that Rule 4 of the Rules gives the Judge discretion to condone non-compliance with any rule of court if it is in the interest of justice to do so.
The argument was that I should exercise the discretion under Rule 4 to condone the applicant's failure to make an application to Court in terms of Rule 39 for the relief it sought on the application to a Judge in chambers. The argument was that it was in the interest of justice that I hear and determine the application.
A copy of an unspeaking order made by the late MUCHECHETERE JA, in chambers, on 26 January 1999, in Croc Ostrich Breeders of Zimbabwe v Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 was produced to support the proposition that a single Judge of the Supreme Court, sitting in chambers, has power to grant an order striking an appeal off the roll.
The order declared that the Notice of Appeal filed by the respondent, on 20 November 1998, in the Supreme Court, was invalid for want of the appellant thereto having applied for and been granted leave to appeal against the judgment of the High Court in Case No. HC7118/98 as provided in section 43(2)(d) of the High Court Act [Chapter 7:06]....,.
On the first point, I agree with counsel for the first respondent, that, a single Judge of the Supreme Court, sitting in chambers, has no power derived from any provision of the relevant statutes, to make an order striking an appeal pending in the Supreme Court off the roll.
The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the statute in terms of which the Supreme Court was created and the Rules regulating its proceedings.
It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court, on appeal, is given.
Section 43(1) of the High Court Act provides that subject to the exceptions specified thereunder an appeal in any civil case shall lie to the Supreme Court from any judgment (includes order) of the High Court.
The right of appeal lies to the Supreme Court which is the body endowed with the power to hear and determine the appeal.
The Supreme Court was created by section 80(1) of the Constitution as a final Court of Appeal for Zimbabwe without original jurisdiction except when constituted as a Constitutional Court to hear and determine applications under section 24(1) of the Constitution alleging violation of the declaration of rights.
The Supreme Court consists of the Chief Justice, the Deputy Chief Justice, such other Judges of the Supreme Court, being not less than two, as the President may deem necessary and such other Judges as have been appointed acting Judges of the Supreme Court.
As a Court of Appeal, the jurisdiction of the Supreme Court exercised by the Judges of whom it consists is to hear and determine appeals, which, in terms of the enactments granting the rights of appeal, lie to it. Jurisdiction is conferred on the Supreme Court in any civil case by section 21 of the Supreme Court Act [Chapter 7:13] (“the Act”) which provides that:
“(1) The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.”
There is a minimum number of Judges required to duly constitute the Supreme Court when exercising its power to hear and determine an appeal.
It shall be properly constituted for the purpose of exercising its jurisdiction before not less than three Judges sitting at the fixed time and place with the assistance of its appropriate officers such as legal practitioners. That is clear from the provisions of section 3 of the Supreme Court Act which state that:
“For the purpose of exercising its jurisdiction in any matter, the Supreme Court shall be duly constituted if it consists of not less than three Judges.”
A court of law will not entertain proceedings, such as an appeal, unless it is satisfied that it is competent to do so and that the proceedings have been instituted in the proper form.
In providing that for the purpose of exercising its jurisdiction over any matter, the Supreme Court shall be duly constituted if it consists of no less than three Judges, section 3 of the Supreme Court Act effectively precludes a single Judge, sitting in chambers or open Court, from exercising the power conferred on the Court under section 21 of the Supreme Court Act.
The words “any matter” in section 3 of the Supreme Court Act include the question whether the terms of the enactment giving the right of appeal from a particular court limit the power of the Supreme Court to hear the appeal in respect of the order from which relief is sought by the aggrieved party.
It is for the Supreme Court, duly constituted, to make a finding that no appeal lies to it against the order and strike the appeal from the roll.
As a single Judge of the Supreme Court cannot determine the matter he or she cannot make the order striking an appeal off the roll.
If the appellant intended to have a decision made as to whether the order from which relief was sought by the first respondent was appealable without the leave of the Judge, it should have approached the Supreme Court by way of a court application as required by Rule 39. It could also have raised the matter by way of a preliminary objection to the exercise of jurisdiction by the Court.
In Pretoria Racing Club v Van Pietersen 1907 TS 687 the respondent's legal practitioners took the point that no appeal lay to the Transvaal Provincial Division in the case because the spoliation order made by the Judge was, in terms of section 22 of Proclamation 14 of 1902, an interlocutory order not appealable without the leave of the Judge who made it.
The full court, consisting of INNES CJ, SMITH J and CURLEWIS J accepted that it was for the court in which the appeal was noted to decide on the facts of each case what the nature of a particular order is in order to determine whether it fell within the category of final or interlocutory orders. At p493 SMITH J, writing for the full court, said:
“The point, in my opinion, would have been more properly raised as preliminary to the hearing of this appeal when a decision upon it would have been necessary.”
It is clear that as the question would have turned on the construction of the terms of the enactment creating the right of appeal, which, in this case, is section 43(1) read with section 43(2)(d) of the High Court Act, it would have been a matter within the competence of the Supreme Court to decide in terms of section 21 of the Supreme Court Act.
The order striking the appeal off the roll could only be made following a finding on the nature of the order from which relief was being sought on appeal.
The order made by the late MUCHECHETERE JA in Croc Ostrich Breeders of Zimbabwe v Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 is of no assistance in the determination of the question raised by this application.
It is an unspeaking order which does not disclose the facts on which it was based.
It states, on the face of it, that it was made in a chamber application in terms of Rule 39 of the Supreme Court Rules.
Rule 39 would not permit of an application for that relief to be made to a single Judge sitting in chambers.
The order simply declared that the Notice of Appeal filed by the respondent, on 20 November 1998, in the Supreme Court, was invalid for want of the appellant thereto having applied for and granted leave to appeal against the judgment of the High Court as provided in section 43(2)(d) of the High Court Act [Chapter 7:06]. It did not strike the appeal off the roll.
One gets the impression that it may have been common cause that the order from which relief had been sought, on appeal, was an interlocutory order.
