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 ...
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.