Article 12 of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15], provides as follows:

“(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment, and throughout the arbitral proceedings, shall, without delay, disclose any such circumstances to the parties unless they have already been informed of them by him.

(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”

Article 13 of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] sets out the procedure for challenging an arbitrator in the following terms:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal: while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of para (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

On 29 March 2011 I dismissed, unconditionally, an application for summary judgment by the applicant.

On 4 May 2011, I dismissed a chamber application for leave to appeal to the Supreme Court against the order dismissing the application for summary judgment. The application for the leave to appeal had been made pursuant to section 43(2)(d) of the High Court Act [Chapter 7:06]. That provision states that:

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court…,.”

I dismissed the application for leave on the basis of the provision of section 43(2)(b) of the of the High Court Act [Chapter 7:06] which provides:

“(2) No appeal shall lie –

(a)…,.

(b) From an order of a judge of the High Court in which he refuses an application for summary judgment and gives unconditional leave to defend an action;”

In view of the clear and unambiguous provisions of section 43(2)(b) of the High Court Act, and the fact that my order was one dismissing an application for summary judgment wherein I gave unconditional leave to the respondent to defend the action, that order is not subject to any appeal and section 43(2)(d) of the High Court Act does not apply.

Even the Supreme Court cannot grant leave to appeal against such an order.

The provisions in section 43(2)(b) of the High Court Act [Chapter 7:06] have been literally interpreted in a number of precedents.

In Haulage (Pvt) Ltd v Mumurgwi Bus Service (Pvt) Ltd 1980 (1) SA 729 (ZRA), the court, in interpreting section 31(1)(b) of the predecessor High Court Act [Cap 14] (ZR) whose provisions fell on all fours with those in our current section 43(2)(b) of the High Court Act [Chapter 7:06] held that, in providing in section 31(1)(b) of the High Court Act [Chapter 14] (ZR), that no appeal shall lie from an order of a judge of the General Division giving 'unconditional leave to defend an action', the Legislature intended to refer only to the granting of unconditional leave to defend in summary judgment proceedings in terms of what are now Rules 69 and 70 of the Rules of the High Court (Order 10 of the High Court (General Division) Rules in Rhodesia Government Notice 995 of 1971).

Implicity, from the provisions of section 31(1)(b) of [Cap 14], where conditional leave to defend is granted in summary judgment proceedings, the right of either party to appeal is restricted to a right of appeal (with leave of the court under section 31(1)(b)) only against the conditions imposed.

Pertinent to note here is that the provisions of section 31(1)(b) of the then [Cap 14] are similar to those of section 43(2)(b) of the present High Court Act and Rules 69 and 70 of Order 10 of the High Court Rules 1971 are also still the same: see also Howff (Pvt) Ltd v Tromp's Engineering (Pvt) Ltd 1977 (2) SA 267 (R); Rheeder v Spence 1971 (1) SA 1041 (R).

In spite of the plain language of the relevant legislation and case law cited above, to the effect that refusal of an application for summary judgement, coupled with unconditional leave to defend an action, is not appealable, the applicant's legal practitioner, following my refusal of leave to appeal, has since noted an appeal to the Supreme Court against my order refusing summary judgment.

Whence he got the leave to lodge such appeal is alien to the applicable law.

He has now requested for written reasons for my order of 29 March 2011 to enable him to prosecute his appeal.

It is not for me to withhold them in spite of the law saying no such appeal shall lie from such an order. Those reasons are herewith provided.

In terms of section 43 the High Court Act [Chapter 7:06] appeals from the court are provided for as follows:

“1. Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.

2. No appeal shall lie -

(a)…,. not applicable

(b)…,. not applicable

(c)…,. not applicable

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

(i) Where the liberty of the subject or the custody of minors is at concerned;

(ii) Where an interdict is granted or refused;

(iii)…,..not applicable.”...,.

The High Court is a superior court with inherent jurisdiction.

Thus, it has the right to regulate its proceedings and judgements. This inherent jurisdiction includes the power to grant leave to have its judgments executed pending appeal.

Section 46(19)(c) of the Electoral Act [Chapter 2:13]..., provides as follows -

“If no appeal, in terms of paragraph (b), is lodged within four days after the receipt of notice of the decision of the nomination officer, the right of appeal of the candidate shall lapse and the decision of the nomination officer shall be final.”

Section 46(19)(b) of the Electoral Act provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced....,. 

The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

It is necessary to consider the meaning of the terms of the provisions of section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and take into account the purpose of the section. 

The consideration leaves no doubt in the mind that giving a right to appeal from a decision of a judge of the High Court refusing leave to appeal to that court from a decision of a Magistrates Court made in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], would defeat the whole object of giving a judge of the High Court the power to decide on the merits whether to grant or refuse leave to appeal to that court.

When a right to appeal is given, subject to the condition that leave to appeal be granted, it is clear that the intention of the legislature is that some tribunal must have the power to decide, whether the right to appeal should be given or not. The object is to protect the process of the appellate court from frivolous and unnecessary appeals by means of an exercise of a screening power. A right to appeal may be given by statute, or conditionally, as a result of a grant of leave to appeal. Where the granting of leave is the chosen method of acquiring a right to appeal, unless leave is granted the right does not arise.

The legislature gave, in terms of section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], the power to consent to or refuse the right to appeal against a decision of the Magistrates Court under section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] to a judge of the High Court. No other tribunal has that power. The matter was entrusted and intended to be entrusted to his or her discretion. It is for the judge of the High Court alone, in the exercise of his or her jurisdiction, to look at the merits of the application for leave to appeal to that court and decide in the proper exercise of discretion to grant or refuse leave to appeal. In this case, the decision itself, refusing leave, was well within the judge's discretion and the reason that the appeal lacked all merit a wholly proper basis for the decision.

Once a decision has been made in terms of a provision to that effect, refusing leave to appeal to a court, that should end the matter and there is no appeal from that court. The clear intention of the legislature, which the Supreme Court must respect, is that the decision of a judge of the High Court refusing leave to appeal to that court in the exercise of jurisdiction must be final. No legislative enactment provides for an appeal against a decision of a tribunal entrusted with the power to grant or refuse leave to appeal.

What is ordinarily provided for is an application for leave to appeal to the court that has the jurisdiction to hear and determine the appeal, if leave is refused by the court against whose decision the appeal is to lie. It is always a judge of the court to which the appeal lies who has the last say on the matter. In this case, it was a judge of the High Court who had the first and last say on the issue of leave to appeal. An application is not an appeal. It is, therefore, a principle in our legal system that no right of appeal lies to an ultimate Court of Appeal against a decision of an intermediate Court of Appeal refusing leave to appeal to it in the exercise of its jurisdiction on the merits.

The rationale for not providing for a right of appeal against refusal of leave to appeal is obvious. 

The object of giving the tribunal power to grant or refuse leave to appeal is to enable it to control what the court should hear and, ipso facto, prevent frivolous and unnecessary appeals that would taint the process of the intermediate appellate court. That object would be defeated if the Supreme Court would also enter the question whether, on the merits, the case was fit for appeal to the intermediate appellate court. The introduction of the “filter” requiring leave would be pointless. There would, in fact, be two appeals in every case in which in the ordinary course of things there would be one.

The intention is that there should be one decision to grant or refuse leave in respect of one right of appeal. If a right to appeal against the refusal of leave were given, there would be nothing to stop a party against whom leave to appeal has been granted also appealing against the decision granting leave. This would be the case because there is no provision in any enactment to the effect that no appeal would lie from a decision of a judge of the High Court granting leave to appeal. The Supreme Court would find itself having to again entertain the same question, whether the intermediate court of appeal should have granted or refused leave to appeal. That would reduce the provisions of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] to an absurdity. 

It is considerations of judicial comity which should operate in this aspect.

The principles to be applied in the determination of the question whether an appeal lies against a decision of an intermediate court of appeal refusing leave to appeal to it, were enunciated by LORD HALSBURY LC as far back as 1891 in Lane v Esdaile (1891) AC 210…,. The decision has been hailed as the “foundation stone” (to borrow the words of BAYDA CJS in Morgan v Saskatchewan (1991) 82 D.L.R. (4^th) 443….,.) for these principles. 

The application of the principles has the effect of eliminating a potential source of delay in the finalization of litigation. The decision has been followed in other English common law jurisdictions.

The principles were expressly adopted by the Supreme Court of Canada in Canadian Utilities Ltd v Deputy M.N.R. for Customs & Excise (1964) 41 D.L.R. (2d) 429 and Ernewein v M.E.I. (1980) 103  D.L.R. (3d) I. The judgments of the English Court of Appeal in Aden Refinery Co. Ltd v Ugland Management Co. Ltd [1986] 3 W.L.R. 949 and Richards v Richards [1989] 3 W.L.R. 748 confirm that the principles enunciated in Lane v Esdaile (1891) AC 210 are still the law in England.

In Canadian Utilities Ltd v Deputy M.N.R. for Customs & Excise (1964) 41 D.L.R. (2d) 429 CARTWRIGHT J…, said:

“It appears to me to have been consistently held in our Courts and in the Courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.”

In Ernewein v M.E.I. (1980) 103 D.L.R. (3d) I, LASKIN CJC, writing for the majority…, said:

“The scheme of appellate review by intermediate appellate Courts, whose decisions, in turn, are appealable here, distinguishes between cases where the appeal to them is as of right and where the appeal cannot come on to be heard unless leave to appeal is previously obtained. In the one set of cases, the intermediate appellate Court cannot refuse to hear the appeals but in the other set it is empowered to screen out those cases which it decides not to hear on any of the issues sought to be brought forward for hearing on the merits. In my view, an ultimate appellate Court, like the Supreme Court of Canada, should respect this differentiation prescribed for Courts below and should recognize that the legislative policy which supports the differentiation is to leave it to the intermediate appellate Court to decide, where leave to appeal is a precondition of an appeal to it on the merits, whether it will entertain it. If it decides that it will not, that should end the matter so far as any further appeal here is concerned unless there is more commanding language than is found in ss 31(3) and 41(1) to warrant this Court's interference with what is a discretionary determination to refuse to allow an appeal to proceed.”

At page 8, the learned Chief Justice of Canada makes the observation that:

“The logic of LORD HALSBURY'S observation that if a refusal to give leave to appeal is appealable so must be the granting of leave is unassailable. Indeed, what it points up is an obliteration of the distinction in the operation of an intermediate appellate Court between cases which it chooses to hear on the merits and those in which it either refuses to grant leave or those in which, leave having been granted, an appeal is sought to be taken further from the refusal or grant, as the case may be.”

In Richards v Richards [1989] 3 W.L.R. 748…, LORD DONALDSON OF LYMINGTON M.R. said:

“In my judgment, what Lane v Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision.”

In re Housing of the Working Classes Act 1890 Ex parte Stevenson (1892) 1QB 609…, LORD ESHER M.R. said:

“Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given.”

Applying the principles in the determination of the question raised by this application, it is clear that there is no legislative enactment which gives the Attorney General a right of appeal to the Supreme Court from the refusal by a judge of the High Court of leave to appeal to that Court from a decision of a magistrate finding an accused not guilty of a criminal offence at the close of the case for the prosecution. The effect of a refusal by a judge of the High Court of leave to appeal to that court renders the decision by the Magistrates Court final. There was no legal basis for the purported application for condonation and extension of time within which to appeal. 

A party cannot seek condonation for non-compliance with a rule that does not exist or one the party is under no duty to obey by reason of his or her peculiar circumstances. There cannot be an extension of time within which to appeal where there is no right to appeal. 

It is a principle of law that procedures should be used for the purposes for which they were created.

Counsel for the applicants submitted that the applicants derive their right of appeal from section 167(5)(b) as read with section 169(1) of the Constitution. 

The provisions are set out hereunder. Great emphasis was placed on the underlined words.

“167 Jurisdiction of Constitutional Court

(1) – (4)…,.

(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court -

(a) To bring a constitutional matter directly to the Constitutional Court;

(b) To appeal directly to the Constitutional Court from any other court;

(c) To appear as a friend of the court.

169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

As I understand it, the submission was that section 167(5)(b) of the Constitution grants a right of appeal to the applicants in a case such as this where the alleged violation, by the Supreme Court, of the applicants' constitutional right in terms of section 56(1) of the Constitution, which provides;

“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law,”

only became apparent after the judgment was handed down. In these circumstances, so it was submitted, the applicants could approach this Court directly on appeal.

He further submitted, although this was denied by counsel for the respondent that in his heads of argument before the Supreme Court, the constitutional issue, based on a possible violation of section 56(1) of the Constitution, was raised.

In answer to the question as to why he had not proceeded in terms of section 175(4) which allows him to request a referral of the issue to the Constitutional Court, he replied that section 175(4) was not the only way of approaching the Constitutional Court and that since the violation was only apparent after the judgment was delivered, the applicants were entitled, in terms of section 167(5)(b), to appeal directly to the Constitutional Court. As authority for this proposition, he referred to the following South African cases:

Nehawu v University of Cape Town & Ors 2002 (4) BLLR 311 (LAC); Z.Sidumo & Anor v Rustenberg Platimun Mines Ltd 2007 ZACC 22; National Union of Metal Workers of South Africa v Bader BOP (Pty) Ltd 2003 (3) SA 513 CC.

The first and last cases referred to are judgments in applications for leave to appeal which leave was granted and both appeals allowed. The second was in respect of an application to the Constitutional Court of South Africa.

None of the judgments are of assistance in determining whether the applicants in casu have established a right of appeal to the Constitutional Court from a judgment of the Supreme Court….,.

On the question of the right of appeal, counsel for the respondent submitted that the alleged appeal said to be pending before the Constitutional Court is, in fact, a nullity as the applicants have no right of appeal against the judgment of the Supreme Court.

He submitted that an appeal invites a superior court to determine the correctness of the lower court's decision on issues which were placed before it. There were no constitutional issues placed before the Supreme Court for determination, or determined by the Supreme Court. There could, therefore, be no right of appeal since no decision was made by that court on constitutional matters.

It was further submitted that the proper recourse available to the applicants was to bring an application in terms of section 85 of the Constitution if it was felt that a breach of their fundamental rights had occurred….,.

DISPOSITION

Having considered the submissions by the parties, I agree with counsel for the respondent that the applicants have not established any right to approach the Constitutional Court by way of appeal. Section 167(5) of the Constitution relates to rules of procedure regulating the manner of approach to this Court on appeal from lower courts. It does not confer a right to appeal to the Constitutional Court on a litigant who has no right of appeal. For this right, the litigant must look elsewhere in the Constitution. In my view, such a right may be read into section 175(3) of the Constitution which applies where an order of constitutional invalidity of any law has been made by a court. Failing that, a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter.

The applicants have not alleged that section 175(3) of the Constitution applies in their case. Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision.

See section 169(1) of the Constitution of Zimbabwe.

It follows that the applicants have not established a right of appeal to the Constitutional Court and any appeal filed in this matter by the applicants is a nullity as it conflicts with the provisions of section 169(1) of the Constitution.

The above finding is dispositive of the application.

In Chambers in terms of Rule 32(12) of the Constitutional Court Rules, 2016.

On 2 September 2016, the High Court (MTSHIYA J) granted a provisional order in favour of the respondents in the following terms:-

“IT IS ORDERED THAT:

1. The 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby interdicted from infringing on the applicant's Trademarks No.1710/200 in Class 34 by using the name RG or any packaging likely to deceive or cause confusion on or in relation to any of the goods for which the marks are registered.

2. The 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby interdicted from passing off its goods and the same RG by the use of the applicant's Trademark Registered No. 1710/200 in Class 34.

3. The 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby interdicted from infringing on the applicants' copyrighted products by using similar or the same artistic works as that on the applicants packaging for its Remington Gold cigarettes.

4. The 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby ordered to deliver to the applicants, for destruction, all products, packaging labels, posters, wrapping, advertising matter or other materials in the possession of the respondents and any person acting through them bearing them mark RG or so nearly resembling the trademark of the applicants.

5. The 1^st, 2^nd and 3^rd respondents and any person acting through them, be and are hereby asked to account to the applicants for all gross sales generated by the “RG” brand within 7 (seven) days of the date of this Order.

6. 1^st, 2^nd and 3^rd respondents jointly and severally the one paying the other to be absolved be and is (sic) hereby ordered to pay costs of suit on legal practitioner and client scale.

INTERIM RELIEF GRANTED:

That pending finalisation of this matter, an Interim Order is hereby granted in the following terms:

1. The 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby interdicted, with immediate effect, from carrying out any launch of the RG brand in Zimbabwe on any date until the matter is finalised.

2. The 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby interdicted, with immediate effect, from trading in or otherwise marketing, distributing or selling any cigarettes bearing the packaging likely to deceive or cause confusion on or in relation to any of the goods for which the applicants mark No 1710/2000 in Class 34 are registered without the leave of this Honourable Court.

3. 1^st, 2^nd and 3^rd respondents and any person acting through them be and are hereby directed to immediately recall all goods bearing the packaging RG, identical thereto or resembling the applicants' registered mark No. 1710/2000 in Class 34 from any of the outlets or its sales distribution agents to whom it may have sold or delivered such products.

4. The Sheriff of Zimbabwe and/or his lawful Deputies be and are hereby authorised to search for and remove to a storage facility all goods bearing the RG mark or identical to or resembling the applicants' registered trademark No.1710/2000 in Class 34 from the 1^st respondent's premises at No.40 Van Praagh Avenue, Milton Park, Harare respectively or from whereever such goods are located.

5. 1^st, 2^nd and 3^rd respondents, jointly and severally, the one paying the others to be absolves (sic) including the Sheriff's fees for removal and storage.”

It will be seen that the interim relief sought has the same effect as would the final order if granted. The interim Order has immediate effect.

The applicants appealed against the order on grounds, inter alia, that the copyright registered does not extend to the mark 'RG' (the mark currently being used on the 1^st the applicant's brand of cigarettes) and protects only the mark REMINGTON GOLD. It was alleged that no evidence was placed before the court as to the respondents' reputation or goodwill in the mark 'RG', which evidence was essential for establishing the wrong of 'passing off'.

The respondents, however, argue that 'RG' is used on their brand of cigarettes as a “nickname” in conjunction with the mark REMINGTON GOLD.

Meanwhile, the respondents sought and obtained leave from the High Court to execute the interim order. MWAYERA J, on 19 September 2016, heard the application and granted the following order:-

“1. The noting of the appeal by the respondent[s] jointly and severally, or anyone of them, in respect of the provisional order granted under High Court Judgment HH517-16 shall not suspend the operation of the interim order.

2. Any appeal by any of the respondents against this order can only be made with the prior leave of this Honourable Court.

3. The costs of this application shall be borne jointly and severally by the 1^st, 2^nd and 3^rd respondent[s], the one paying the others to be absolved.”

THE APPLICATION

This application is brought as an urgent chamber application for leave to appeal to the Constitutional Court against paragraph 2 of the Order of MWAYERA J on the grounds that the order, restricting as it did the applicants' right of appeal, violates the applicants' constitutionally protected right of access to the courts as enshrined in section 69 of the Constitution. The applicants seek, by way of relief, the following Order:

“1. The operation of the order of the High Court granted under case number HC8318/16 be and is hereby stayed pending determination of this matter and the eventual filing of applicants' appeal in the Constitutional Court.

2. Applicants are granted leave to file an appeal against the Order of MWAYERA J issued under case number HC9057/16.

3. The applicants shall file their appeal with the Registrar of the Constitutional Court within two (2) days of this order being served upon them.

4. First and second respondents shall bear the costs of this application.”

Section 43(2) of the High Court Act [Chapter 7:06] reads as follows:

“(2) No appeal shall lie -

(a)…,.

(b)….,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases –

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a Special Case stated under…,.”

The structure of section 43 of the High Court Act as a whole is such that it begins, in subsection (1), by granting a blanket right of appeal to the Supreme Court in all civil cases from any judgment of the High Court, but subject to what the rest of the section says.

The rest of the section, in subsection (2)(a) to (c), takes away, altogether, the right of appeal in the situations specified therein. For example, no appeal lies from an order of the High Court given by consent of the parties; or from an order refusing summary judgment. Then, in subsection (2)(c)(ii) and (2)(d) the right of appeal is restricted. Leave is required in the situations specified therein. An interlocutory order or judgment given by a judge is not appealable unless with the leave of the judge who granted it, or, where he has refused that leave, with the leave of a judge of the Supreme Court. But even in these situations, there are exceptions. The grant or refusal of an interdict is one such. No leave is required to appeal.

It is every litigant's right to appeal to the highest court in the land.

The purpose of an appeal to a higher court is so that an error committed by the lower court is corrected: see Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839…,. In terms of section 169(1) of the Constitution of Zimbabwe, the Supreme Court is the final court of appeal in Zimbabwe, except for Constitutional matters. But, in certain situations, the right of appeal is removed or restricted. Certain matters are simply not appealable. Others are appealable only with the leave of the court from which, or the judicial officer from whom, the appeal lies.

The rationale for proscribing or limiting the right of appeal in certain situations was given by SCHREINER JA in Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839…,. At p867, the learned judge of appeal said:

“A wholly unrestricted right of appeal from every judicial pronouncement might well lead to serious injustices. For, apart from the increased power which it would probably give the wealthier litigant to wear out his opponent, it might put a premium on delaying and obstructionist tactics. This latter consideration has, I imagine, been the predominant one in leading legislators to try to restrain the bringing of appeals from orders of a preparatory or procedural character arising in the course of a legal battle. The chief object has naturally been to bring about a just and expeditious decision of a major substantive dispute between the parties….,.  But desirable as it would be to ensure that all such orders are properly made, it has been widely felt, in different ages and countries, that a line between appealable and non-appealable orders of this preparatory or procedural character ought to be drawn somewhere, for if they were all appealable, the delay and expense might be excessive, while if they were none of them appealable the injustice resulting from wrong orders might be intolerable.”…,.

Section 21(1), (2) and (3) of the Immigration Act [Chapter 4:02] reads as follows:-

“(1) Subject to subsection (2), subsection (2) of section eighteen and section twenty-two, any person who receives notice in writing in terms of paragraph (a) of subsection (4) of section eight that leave to enter Zimbabwe has been refused or that he is a prohibited person, may appeal to the nearest Magistrates Court against the refusal of leave to enter Zimbabwe or the allegation that he is a prohibited person, as the case may be.

(2) An appeal in terms of subsection (1) shall be noted –

(a) Where the person is in Zimbabwe when he receives the notice referred to in that subsection, not later than three days, Saturdays, Sundays and public holidays excluded, after receiving such notice;

(b) Where the person is outside Zimbabwe when he receives the notice referred to in that subsection, not later than ten days, Saturdays, Sundays and public holidays excluded, after receiving such notice.

(3) A Magistrates Court –

(a) May, of its own motion, and shall, at the request of the appellant or of an immigration officer, reserve for the decision of the Supreme Court any question of law which arises upon an appeal heard before such Magistrates Court; and

(b) Shall state such question in the form of a special case for the opinion of the Supreme Court and transmit such special case to the Registrar thereof; and for the purpose of paragraph (a) a question of domicile shall be treated as a question of law.”

The contention by the applicant is that there is no right of appeal against the decision of the Magistrates Court following a determination made in terms of section 21 of the Immigration Act [Chapter 4:02].

As can be noted from subsection(s) (3), the appellant or an Immigration Officer may state a case arising from such appeal for determination by the Supreme Court….,.

In Bheka v Disablement Benefits Board 1994 (1) ZLR 353 (S), the Supreme Court had to decide on the import of a provision in the State Services (Disability Benefits) Act [Cap 16:05] which is almost similar to that in section 21(3) of the Immigration Act [Chapter 4:02]. In that regard, section 13(4) of the State Services (Disability Benefits) Act [Cap 16:05] states that:-

“Where, in the opinion of the Appeal Board, any matter to be determined by it rests wholly or partly on a point of law, the Appeal Board may, on application by the appellant or the Board, state a case for the determination of such question of law by the Supreme Court.”

In interpreting the provision in the State Services (Disability Benefits) Act [Chapter 16:05], GUBBAY CJ had this to say…,:-

“This provision envisages that where a matter brought before the Appeal Board concerns a point of law, the Supreme Court becomes involved in an advisory capacity if a case is stated to it. The application to state a case must be made to the Appeal Board by either the appellant or the Board. Once made, the Appeal Board is vested with a discretion whether to grant or refuse the application. Obviously it will not state a case if of the opinion that the point of law is of a trivial nature or one directly covered by judicial authority. Nor will it state a case mero motu. What is plain is that the application to the Appeal Board must be made during the hearing of the matter and precede its determination of the appeal. It cannot be moved once the appeal has been upheld or dismissed. Upon referral, the Supreme Court sits as a court of first instance and does not exercise appellate jurisdiction. See McTaggart v Disabled Benefits Board 1975 (1) RLR 53 (A). After the stated question of law has been answered, the hearing before the Appeal Board is resumed. It is that body which must then render its decision on the appeal before it.

No such application was made to the Appeal Board, either on behalf of the appellant or the Board.

Consequently access to this court under s13(4) was lost.

Mr Mutsonziwa, who appeared for the so-called appellant, correctly conceded that the decision of the Appeal Board was final and that the present appeal had been improperly enrolled. He sought to argue, however, that in the exercise of this court's inherent jurisdiction it should set aside the decision of the Appeal Board and remit the appeal to it, thereby enabling the appellant to present the requisite application under s13(4).”

Applying the reasoning in Bheka v Disablement Benefits Board 1994 (1) ZLR 353 (S), it follows that, if the respondents had a point of law that required determination, they ought to have stated their case through the Immigration Officer. This, they should have done at the time of hearing of the appeal before the Magistrates Court. They cannot seek to do so by way of appeal which they have noted.

Section 70(5) of the Constitution, in terms of which the applicant has appealed to the High Court, provides:

“Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to –

(a) Have the case reviewed by a higher court; or

(b) Appeal to a higher court against the conviction and sentence.”

The High Court has review jurisdiction over all inferior courts and tribunals in terms of section 26 of the High Court Act [Chapter 7:06]. While it has appellate jurisdiction as well, section 30 of the High Court Act [Chapter 7:06], dealing with the jurisdiction in civil cases, provides:

“(1) The High 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 High Court.

(2) Unless provision to the contrary is made in any enactment, the High Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.”

That provision accords with what is contained in section 171(1)(d) of the Constitution which reads:

“The High Court has such appellate jurisdiction as may be conferred on it by an Act of Parliament.”

The applicant states that he sees no reason why an appeal to the High Court should not suspend the decision appealed against. Proceeding with the hearing has the effect of undermining the authority of this court.

The central issue to be determined in this matter is whether the applicant has established the requirements of an interdict. In doing so, one cannot avoid dealing with the issue of whether there exists a valid appeal that has been lodged against the decision of the Commissioner General of Police.

I have given a recital of the provisions dealing with appeals because the applicant purports to have approached the High Court on appeal in terms of section 70(5) of the Constitution. That is what the notice of appeal, filed on 24 June 2015, says. There is no doubt in my mind that section 70(5) of the Constitution does not set out any appeal procedure. Also, it certainly does not give the applicant a right to appeal to this court from a decision of the Commissioner General. Its import is the conferment of broad Constitutional rights of recourse to a “higher court” on review or appeal.

For that reason, the noting of the appeal to this court cannot possibly be in terms of section 70(5) of the Constitution. There has to be another basis for lodging the appeal in the High Court….,.

The applicant insists that his right to an interdict is found in the appeal that he has noted to the High Court.

Counsel for the respondents submitted that the purported appeal is a nullity by reason that no right of appeal lies to the High Court against the decision of the Commissioner General to confirm a conviction and sentence imposed by a single officer in terms of section 34 of the Police Act [Chapter 11:10]. To the extent that the appeal was a nullity it could not found an application for an interdict.

The issue has been a subject of two diametrically different pronouncements of this court before.

MAWADZE J was the first into the fray in Chatukuta v The Trial Officer & Ors HH705-14. In that case, the applicant had his conviction by a single officer confirmed by the Commissioner General. He noted an appeal to this court in terms of section 70(5) of the Constitution. When his superiors threatened to execute the sentence of imprisonment he made an urgent application to stop the execution. The learned judge concluded that a right of appeal lay in the High Court reasoning that;

“The Police Act does not at all oust the appellate jurisdiction of the High Court in relation to proceedings held in terms of section 34 of the Police Act. While an appeal lies to the Commissioner General against the decision of a single trial officer, in terms of section 34(7) of the Police Act, there is no provision in the Police Act which states that no appeal lies against the decision of the Commissioner General made in terms of section 34(7) nor is there a provision which bars an aggrieved member to approach the High Court on an appeal against the decision of the Commissioner General. Put simply, the appellate jurisdiction of the High Court is not specifically ousted.”

To the learned judge, everything turned on the absence of an ouster provision as opposed to the existence of a provision conferring appellate jurisdiction.

CHIGUMBA J was very emphatic in her conclusion in Jani v The Officer in Charge ZRP Mamina & Ors HH550-15. She said;

“The provisions of the Police Act are clear. There is no provision for an appeal or review to this court from a decision of a single officer. This court may only review the decision of a Board of Officers, or entertain an appeal against the decision of a Board of Officers. The reasoning behind this discrimination is clear. Single officers may only adjudicate on simple offences which do not attract stiff penalties. They preside over a simple and fast and streamlined procedure designed to clear less serious infractions.”

Therein lies the conundrum of conflicting views expressed by this court.

I, however, respectfully disagree with MAWADZE J. Ordinary jurisdiction and appellate jurisdiction must be treated differently. While this court will jealously guard its original jurisdiction, it does not possess the magical crystal ball to guard the appellate jurisdiction it does not have or to install it merely because a statute had not specifically ousted it. This is because section 171(1)(d) of the Constitution makes it clear that this court may only exercise appellate jurisdiction conferred to it by an Act of Parliament. In line with that, section 30(1) of the High Court Act [Chapter 7:06] provides that this court shall determine appeals from courts or tribunals in terms of an enactment.

In that respect, the appellate jurisdiction cannot be imposed merely because it is not excluded. Surely, it was never the intention of the lawgiver, in enacting section 70(5) of the Constitution, that any party aggrieved by a decision of any tribunal should just rock up at the High Court with an appeal not provided for in any enactment. Chaos would ensue if that was to be the case. I am fortified in that view by the existence of a right of review, as opposed to appeal, available to an aggrieved party. Such a party can therefore not foist appellate jurisdiction on this court which is not conferred by an Act of Parliament. The Police Act certainly does not confer such jurisdiction.

Having come to that conclusion, it must follow, therefore, that the filing of an appeal in the High Court was an exercise in futility - it was a nullity. This application, being predicated upon a nullity cannot be sustained as a nullity cannot give rise to anything valid. There is therefore no legal basis for stopping the proceedings before the Board, the applicant, having failed to establish the requirements of an interdict.

In the result, the application is hereby dismissed with costs.

There are only two issues which exercised our minds and therefore fall for determination in this appeal. There are;

1. Whether an appeal lies against the judgment appealed in view of the fact that the Domestic Violence Act [Chapter 5:16] (DVA) makes no provision in respect of appeals….,.

Whether or not an appeal lies against the judgment appealed?

It is common cause that the Domestic Violence Act [Chapter 5:16] (DVA) makes no provision in respect of appeals. Part II of the Domestic Violence Act [Chapter 5:16] (DVA) deals with protection orders. Section 7 deals with the application for protection orders. Section 8 relates to the determination of the application for protection orders. Section 9 deals with interim protection orders and section 10 with the confirmation of interim protection orders. Section 11 relates to the contents of the protection order. Section 12 deals with the revocation, variation, or extension of protection orders. Section 13 deals with issue of further copies of orders and warrants of arrest and section 14 relates to enforcement of protection orders.

It is clear from the provisions of Part II of the Domestic Violence Act [Chapter 5:16] (DVA) that the DVA is designed to afford the aggrieved party a robust remedy. One may therefore be of the well founded view that such a robust remedy will be undermined by noting of an appeal which would result in the suspension of the order. In that vein one may therefore argue that the legislature, by not making provision in respect of appeals in the Domestic Violence Act did intend not to provide such a right of appeal. On the other hand, one may also argue that any party should be afforded the opportunity to appeal as a right and that if the legislature intends to oust such a right then a clear provision in the Act should state that an appeal will not suspend the operation of the order granted.

There are similar provisions in section 27(3) of the Maintenance Act [Chapter 5:09] and section 92E(2) of the Labour Act [Chapter 28:01].

Further, section 9 of the Domestic Violence Act [Chapter 5:16] (DVA) provides, in my view, for drastic interim measures of protection which may be granted ex parte, and the respondent, on being served with the interim order, is simultaneously served with a warrant of arrest which is conditionally suspended upon compliance with the order.

I make the point the Domestic Violence Act clearly ensures that a party who is genuinely entitled to relief and requires the robust remedy is afforded that provisional relief which, by being interlocutory in nature, is not susceptible to appeal. It is the interim relief which is subsequently confirmed or discharged on the return date after a due inquiry.

It is my firm view that an appeal indeed lies against the judgment appealed. I arrive at this conclusion on the basis of a number of reasons.

The Domestic Violence Act [Chapter 5:16] (DVA) does not create a special or separate court which deals with domestic issues but extends the jurisdiction in such matters to ordinary courts. Section 2(1) of the Domestic Violence Act [Chapter 5:16] provides as follows:

“Section 2(1)

Court means – a Magistrate Court, High Court, and, for purposes of section eighteen, a local court.”

The net effect of the above definition is that in dealing with the matters of domestic violence the Magistrates' Court, the High Court, and the local courts (in the restricted manner provided for), do not exercise any special jurisdiction. All these three courts may be approached in domestic violence matters as courts of first instance. The only determinant factor a party should pay due regard to is the issue of jurisdiction. As an example, a matter which is outside the jurisdictional threshold of the Magistrate Court must of necessity be dealt with by the High Court. See also the specific provision in section 18 of the Domestic Violence Act dealing with the jurisdiction of local courts in respect of domestic violence matters. It can therefore be inferred, quite correctly, I believe, that the Domestic Violence Act reposes jurisdiction in such matters in the ordinary courts as defined in section 2(1) and does not create specialized courts. It logically follows, therefore, that the appealability or otherwise of the judgment of the court cannot be resolved with reference to the absence of an enabling provision in the Domestic Violence Act because the Domestic Violence Act does not establish a separate court. The Domestic Violence Act defers to the courts that are in existence hence one has to refer, in casu, to the provisions of the Magistrates Court Act which creates the court as defined in section 2(1) of the Domestic Violence Act, in particular section 40(2) of the Magistrates Court Act [Chapter 7:10] which provides as follows;

“Section 40(1)

…,.

(2) Subject to subs (1) an appeal to the High Court shall lie against -

(a) Any judgment of the nature described in section eighteen or thirty nine;

(b) Any rule or order made in a suit or proceeding referred to in section eighteen or thirty-nine and having the effect of a final or definitive judgement including any order as to costs;”

In casu, the order granted by the Magistrates' Court, upholding the application for a protection order, is, in all material terms, a judgment in favour of the applicant. Such a judgment is appealable in terms of section 40(2) of the Magistrates Court Act [Chapter 7:10] which should be read together with the provisions of section 30(1) of the High Court Act [Chapter 7:06] which deals with the powers of the High Court on appeal in civil matters dealt with by the lower courts as provided for in the relevant statutes.

It is clear that the matter before us is a judgement of the court of the magistrate. The matter as to what law the judgment applies is irrelevant. What matters is that it is a judgment of the court of the magistrate and such a judgment is appealable to this court in terms of section 40(2) of the Magistrates Court Act [Chapter 7:10] and section 30(1) of the High Court Act [Chapter 7:06]. There is no law which bars the High Court from dealing with such an appeal and I am fortified in this regard by the comments by GARWE JA in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR…, in which the learned Judge of Appeal, inter alia, said:

“The High Court, on the other hand, has jurisdiction to hear all matters except where limitations are imposed by the law. In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I am also of the strong view that a right to appeal is an important right which is protected in our law. I do not share the view that the legislature would grant such immense powers to a magistrate and make their exercise immune from the interference by a process of appeal. It is my finding, therefore, that this appeal is properly before this court on account of the fact that an appeal lies against the judgment appealed.

Section 33(2) of the Police Act [Chapter 11:10] gives the right to appeal to the High Court only to members convicted of a disciplinary offence by a Board of officers, not by a single trial officer. It is thus clear that an appeal from a single trial officer only lies to the Commissioner General of Police and not to the High Court.

The law does not grant jurisdiction to the High Court to hear appeals from decisions of the single trial officers. Section 34(7) of the Police Act [Chapter 11:10] only provides for the appellate jurisdiction of the Commissioner General from decisions of single trial officers....,. 

While the High Court Act does prescribe for the appellate jurisdiction of the court, in section 30 and section 34, it goes on to limit such jurisdiction to the same extent as section 171(1)(d) of the Constitution: that such appellate jurisdiction will only be exercised as provided for by an enactment or by the High Court Act itself....,.

While the right to appeal exists in general terms, as provided for in the Constitution..., the right is not absolute but is subject to any limitations prescribed by law....,.

In order to test whether the legal prescription for the interference is appropriate, it then becomes necessary to inquire whether such interference pursues a legitimate aim....,.

Given the specific provisions of section 171 of the Constitution and section 30 and section 34 of the High Court Act, that any appellate jurisdiction must be specifically enacted, I cannot agree with counsel for the applicant that the absence of a specific bar against such appellate jurisdiction is tantamount to a right of appeal.

Section 171(1)(b) and (d) of the Constitution gives the High Court power “…, to supervise magistrates courts and other subordinate courts and to review their decisions;” and to sit as an Appellate Court as mandated by an Act of Parliament.

Thus, section 171(1)(b) gives unlimited power to the High Court to review decisions of subordinate courts, while section 171(1)(d) limits its appellate power to the extent that an Act of Parliament provides….,.

With regard to review, the High Court Act provides, in Part V, for review of decisions of subordinate courts and administrative authorities in line with the constitutional provisions. In that respect, section 26 echoes section 171(1)(b) of the Constitution, vesting the High Court, as it does, with extensive power to exercise its review function, while section 27 prescribes the grounds upon which the High Court may exercise such power. Sections 28 and 29 circumscribe the powers of the High Court on review. Sections 30 and 34 rhyme with section 171(d) of the Constitution in that the High Court will exercise appellate jurisdiction where an enactment has so provided.

Having determined that the judgment which was handed down by the court a quo was a default judgment, the question that obtains is whether the appellant could properly appeal against it.

At law, one cannot appeal against a default judgment. Rather, the proper procedure is for the aggrieved party to seek rescission of the judgment.

This position was laid down in Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S). In that case, the applicants in an application for rescission of a default judgment sent their legal counsel to appear on the scheduled hearing date, with instructions not to prosecute the application but to seek a postponement. The court turned down the request for postponement and proceeded to dismiss the application. The applicants noted an appeal against that decision. At p 33E-F the court held as follows:

“The present appeal is therefore against the order of 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996.

That order, of 23 May 1997, as I understand it, was effectively a default judgment. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgment. Once the postponement was refused, the appellants were effectively in default. Procedurally, therefore, the appellants should have sought a rescission of the default judgment of 23 May rather than appeal against it.

On this ground alone, the appeal must fail.”

In Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S) the lower court, in granting a default judgment, had proceeded to give reasons thereof. In upholding the nature of the default judgment notwithstanding the reasons given by the court a quo, the Court, per GWAUNZA JA…, held as follows at 375B-C:

“Counsel for the respondent contends, correctly, that a default judgment can only be set aside by a successful application for rescission of the judgment under the rules of the relevant court. The application must be made by the defaulting party himself, as indicated by the expression 'purging his default'. It follows that, in casu, the appellant's default remained unpurged even as the learned judge a quo considered the merits of the matter and gave reasons for his judgment. By virtue of Rule 62, the learned judge a quo could simply have 'absolved' the respondent from the application, that is, dismissed it, as long as he was not considering postponing the application or making any other order. The consideration by the judge a quo of the merits of the case, and the giving of his reasons for judgment, therefore had no effect on the status of the judgment given, which remained that of a default judgment.”

More recently, the position was fortified by BHUNU JA in Guoxing Gong v Mayor Logistics (Pvt) Ltd and Anor SC02-17…, where he reiterated the position in the following w