On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:
“INTERIM RELIEF GRANTED
Pending determination of this matter, applicant is granted the following relief:
1. That 1st respondent is directed to remove himself and property and all persons holding through him from Arden Estate within 24 hours of the date of service of this order.
2. The Deputy Sheriff is authorised to evict 1st respondent and all persons holding through him from the farm.
3. That 1st respondent is interdicted from interfering with applicant's farming activities.
4. That 2nd respondent is directed to give the necessary instruments to Nyabira police to render all necessary assistance to the Deputy Sheriff in implementing his order should 1st respondent offer any resistance thereto.
TERMS OF FINAL ORDER SOUGHT
1. That 1st respondent be interdicted from returning or visiting Arden Estate.
2. That 1st respondent pay the costs of application on a legal practitioner and client scale.”
In that case, Bell Inn (Pvt) Ltd, the first respondent in the present proceedings, was the applicant while Mr Zakeyo Mereki, the applicant in the present case, was the first respondent, and the Commissioner of Police was the third respondent.
On that same day, id est 30 November 2005, Zakeyo Mereki filed an application to suspend service of Bell Inn's application on himself. His application was heard in chambers on 5 December 2005 and judgment was handed down on 7 December.
The order that the court issued was as follows:
“TERMS OF RELIEF MADE
1. That the 2nd respondent be and is hereby ordered to suspend service of the order annexure “C” on the applicant.
2. That the applicant be and is hereby entitled to remain in occupation of subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province until the final determination of this matter and to carry on all farming activities which he was engaged in or intended to engage in consequent upon his right to occupation in terms of annexure “A” the letter dated 10th November 2005 from the acquiring authority.
TERMS OF ORDER SOUGHT
1. That the applicant be and is hereby declared to be the rightful occupier of No.1 Arden Estate in Zvimba District of Mashonaland West Province in terms of the offer letter annexure “A” dated 10th of November 2005.
2. That the 1st respondent be and is hereby ordered to cease occupation of the subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province.
3. That the 1st respondent pay the costs of this application.”
When Bell Inn's application was served on Zakeyo Mereki, on 2 December 2005, he had already filed the above application seeking to prevent the Deputy Sheriff from effecting service on him.
In the same application, Zakeyo Mereki was seeking for a declarator.
As already stated above, the court handed down the judgment on 7 December 2005 wherein it declared Zakeyo Mereki as the correct occupier of the disputed piece of land.
Two days later, Bell Inn filed a notice of appeal against that judgment.
Zakeyo Mereki, who is the respondent in the appeal, contended, that, the appeal was a nullity. Hence the order that he was granted remained operative. It could only have been suspended had the appeal been properly and validly noted against that judgment and order, so his contention went.
The appellant appealed against the granting of an interdict to the respondent.
The respondent argued, that, when an interdict is granted it was not appellable. It was only the refusal of an interdict which is appellable.
Counsel for the respondent argued this point at some length citing some South African authorities.
He concluded, that, the legal position on that point was as stated in the South African authorities and went on to submit, that, the appellant had misread the law.
It turned out, however, that it was him who had misread the law.
There was no need for the respondent to refer to foreign authorities when our statutes have the answer to the question that falls to be decided.
In casu, the answer lies in section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which recites 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 a judge, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -
(i)…,.
(ii) Where an interdict is granted or refused.”
Quite clearly, there was no need for the appellant to obtain leave of the judge in this matter.
Its appeal was properly and validly noted and it suspended the judgment and order handed down on 7 December 2005.
In this application, Zakeyo Mereki sought confirmation of the provisional order which the noting of an appeal suspended.
That is clearly untenable.
