On 28 July 2014, after hearing counsel and having gone
through the papers filed of record, we gave the following order:
“IT IS ORDERED THAT:
The matter be and is hereby struck off the roll. Costs will
follow the cause.”
Upon giving the above order, we indicated that reasons for
the order were to follow. These are they.
On 4 July 2013, the appellant filed, in the court
a quo, a Chamber application for leave to execute and institute
proceedings against the first respondent. In that application, the appellant
sought the following relief from the court a quo:
“IT IS ORDERED THAT:
1. That the applicant be and is hereby granted leave to
execute against the first respondent's attached 800 harrows.
2. The applicant be and is hereby granted leave to litigate
and issue out any court action or process against the first respondent for any
further outstanding levies due in terms of section 3 of the Manpower
Planning and Development (Levy) Notice, S.I.74/99, and any such surcharge
imposed for the period starting from August 2011 to current.
3. That the first respondent and the second respondent, Christopher Maswi,
personally, de bonis propriis, pay costs of this application at the
attorney-client scale, jointly and severally, the one paying the other to be
absolved.”
The first respondent opposed the application launched by
the appellant in the proceedings a quo and in so doing the first
respondent raised two preliminary points against the appellant;
(i) The first point in limine was that the appellant
had used the wrong form of the application and therefore there was
non-compliance with the Rules of the Court a quo.
(ii) The second issue raised was that the person who
deposed the founding affidavit to the Chamber application lacked the requisite
authority to institute proceedings in the court a quo on behalf of the
appellant.
The learned judge a quo agreed with the first
respondent that the Chamber application that had been filed was defective for
want of compliance with the Rules of the High Court. The learned judge
a quo also made a finding to the effect that the person who had deposed
the appellant's founding affidavit lacked the requisite authority to do so on
behalf of the appellant. The learned judge proceeded to dismiss the application
without delving into the merits of the matter.
Aggrieved by the decision of the learned judge a quo
to dismiss the application, the appellant noted its appeal to this Court on
grounds which I summarise as follows –
1. That the court a quo had erred by holding that the
Chamber application was fatally defective for want of compliance with the
correct form, when such finding is not supported by the High Court Rules,
1971;
2. The court a quo erred by holding that there was no
proof before the court to establish that the deponent of the founding affidavit
was authorised to depose the affidavit by the Minister of Higher and Tertiary
Education. That finding was not supported by the evidence before the court;
3. The court a quo erred by holding that it was the
deponent of the founding affidavit who was litigating on behalf of the Minister
of Higher and Tertiary Education when in fact the applicant on the papers is
the Minister as provided in section 54(4) of the Manpower Planning and
Development Act [Chapter 28:02];
4. The court a quo erred by holding that the Permanent
Secretary could not delegate authority to sue even if it were proved that he
was himself properly authorised. That finding is contrary to the provisions of
section 62 of the Manpower Planning and Development Act
[Chapter 28:02].
The relief which the appellant sought from this Court was
the setting aside of the order of the court a quo and the substitution
thereof with the following:
“1. That the points in limine raised by the first and
second respondents are dismissed with costs.
2. The parties must proceed to address the Court on the
merits of the Chamber application.
3. The first and second respondents to pay the costs of
suit in this appeal.”
In heads of argument filed of record by the first
respondent, the first respondent took a preliminary point that the appellant
had not sought leave of the court a quo to appeal against the decision of
the court a quo.
The first respondent's stance was that since the decision
of the court a quo was an interlocutory order, such an order could only be
appealed against with leave of the court a quo or with leave of a judge of
this Court, that is, in the event of the court a quo refusing to grant the
appellant such leave. The first respondent's submission was premised on the
provisions of section 43 of the High Court Act [Chapter 7:06]
(hereinafter referred to as “the Act”).
This submission by counsel for the first respondent cannot
but be correct, given the explicit language of section 43(2)(d) of
the High Court Act [Chapter 7:06], which provides that:
“43 Right of appeal from High
Court in civil cases
(1)…,.
(2) No appeal shall lie -
(a) - (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 any law relating to arbitration.”
Quite clearly, section 43 of the High Court Act
[Chapter 7:06] provides for the need to obtain the leave of the court
a quo to appeal against an interlocutory order. Section 43 of the
High Court Act [Chapter 7:06] admits of no other interpretation.
Counsel for the appellant, in his argument, sought to
convince the Court that there was no need to seek leave because the matter it
brought before the court a quo was not for an interlocutory order but a
culmination of other proceedings. Therefore, there was no need for it to return
to court seeking the same relief.
We were not persuaded by this submission. Counsel's
submission in this regard is not consistent with the clear meaning of section 43
of the High Court Act [Chapter 7:06].
What constitutes an interlocutory order was enunciated in
the case of Blue Rangers Estates (Pvt) Ltd v Muduviri and Anor 2009 (1) ZLR 368
(S). In that case, malaba dcj explained
the correct test to be applied in determining whether an order/judgment is
final and definitive or is interlocutory and not appealable without leave. The
learned deputy chief justice had
this to say at 376G:
“To determine the matter one has to look at the nature
of the order and its effect on the issues or cause of action between the
parties and not its form. An order is final and definitive because it has
the effect of a final determination on the issues between the parties in
respect to which relief is sought from the court.”…,.
The learned deputy
chief justice continued at 379:
“Many orders which are final in form are, in fact,
interlocutory, whilst some which are interlocutory in form are, in fact, final
and definitive orders. The test is whether the order made is of such a
nature that it has the effect of finally determining the issue or cause of
action between the parties such that it is not a subject of any subsequent
confirmation or discharge.”…,.
Applying the above legal principle to the order that was
awarded by the court a quo, the following conclusion is inevitable. The
learned judge in the court a quo dismissed the appellant's application.
The effect of the order was that execution could not proceed. Interdicting one
action does not finally determine the issues or cause of action between
parties. The issues between the parties could only be determined by the Appeal Court.
Turning to paragraph 2 of the order which the
appellant was seeking in the court a quo, I am satisfied that it was
interlocutory in nature and its dismissal did not bring finality to the matter.
The appellant ought to have sought leave from the court
a quo to appeal against its judgment.
In this regard, the remarks of corbett ja in the case of South Cape Corp. v
Engineering Management Services 1977 (3) SA 534 (AD)…, are pertinent. He had
this to say at 551G:
“Next, the question is whether an order for leave to
execute is a simple interlocutory order or an interlocutory order having a
final and definitive effect on the main action. If the test laid down in the
Pretoria Garrison Institutes case (Pretoria Garrison Institutes v Danish Variety
Products (Pty) Ltd 1948 (1) SA 839
[AD]) be applied, then, in my view, it must be held to be a simple
interlocutory order. It does not dispose of any issue or any portion of the
issue in the main suit, nor does it irreparably anticipate or preclude any of
the relief which might be given at the hearing (taking the 'hearing' in such a
case to be a hearing of the appeal). It leaves the Court of Appeal free to make
whatsoever decision it deems fit in the main action.”
This passage supports my reasoning that the order of the
court a quo was interlocutory in nature.
In the result, we concluded that, in the absence
of leave to appeal, the matter was not properly before the Court and should be
struck off the roll with costs following the result.
