MAFUSIRE J: On 13 July
2015 I heard argument on an urgent chamber application. It was for a stay of
execution. I reserved judgment. I kept thinking that the case being argued
before me was not really the case that I had to make a ruling on. So I decided
I needed time to check it out. But I directed and stressed that execution would
be stayed pending my decision. This was not without reason. This reason shall
soon emerge. At any rate, the Sheriff, the second respondent herein, had halted
the execution once the application had been launched.
The case before me was almost
a repeat application. NDEWERE J had dealt with it before. The background was
this. In February 2015 the first respondent (hereafter referred to as “the
respondent”), a South African registered entity with a shareholding in
the second applicant, obtained, in the main action under HC 11024/14, a default
judgment against the applicants. It went on to issue a writ of execution.
Applicants' property was attached. On 3 March 2015, and under HC1921/15, the
applicants applied for rescission of the default judgment. Simultaneously, they
applied, on an urgent basis under HC 1922/15, for a stay of execution pending
the determination of their application for rescission.
The application for stay was
heard by the Honourable Judge on 20 March 2015. She reserved judgment. From the
applicants' case before me, the respondent, or its counsel, or both, were obdurate
and quite combative. The applicants say upon reserving her judgment the learned
Judge directed that the status quo ante
would subsist until she had given her ruling. But despite that directive, the
respondent sought to execute. Applicants' counsel first sought the assurance of
respondent's counsel that his instructions to the Sheriff to proceed with
execution would be withdrawn until the learned Judge had given her ruling.
Applicants say respondent's counsel denied any knowledge of any such directive.
Applicants' counsel then sought clarification from the Judge herself. Part of their
lawyers' letter to the Judge's clerk read:
“Quite contrary from the directive
issued by the Judge, in our telephone conversation with Mr Mundia just before
writing this letter, he has indicated that there was never a directive to
maintain the status quo until the determination of the application. We are of
the position that Mr Mundia's conduct borders on the line of contempt of the
Honourable Judge's directive. Any judgment that may be eventually granted by
the Judge in favour of the Appellants will be rendered academic and
unenforceable owing to the acts of the Respondent.
May
the above disheartening developments be brought to the attention of Justice
Ndewere for her intervention and possibly with the hope that her decision
regarding the application is issued at the earliest opportunity to allow the
parties to proceed accordingly.”
The learned Judge's
response was that she had indeed issued a directive during the hearing to the
effect that the respondent would stay execution pending her determination.
In due course the learned
Judge did issue a provisional order of stay of execution. That was on 21 April
2015. The interim relief read as follows:
“[P]ending the determination of this
matter the applicant is granted the following relief:
1.
Execution
of the default judgment granted by the court in the matter HC 11024/14 on the 2nd
of February 2015 be and is hereby stayed.”
The reference to “this
matter” was undoubtedly a reference to the application for rescission
of judgment that was pending. This emerges from a proper construction of the draft
final order sought on the return day. In terms thereof, apart from the prayer
for costs, the first respondent was called upon to show cause why a final order
should not be granted that:
“… the parties abide by the court's
decision in the application for rescission of judgment filed by the applicant
on the 3rd of March 2015, wherein the applicant hereto seeks to
rescission (sic) of a default judgment granted by the court in the matter HC
2748/09 (sic) on the 22nd of January 2015 (sic).”
Despite the imprecision
of the draft order and the obvious typing errors in it, it is clear that on 21
April 2015 this court stayed execution of the default judgment under HC
11024/14 pending the determination of the application for rescission of
judgment under HC 1921/15.
But the matter went off
the rails soon thereafter. On 4 June 2015 the respondent appealed to the
Supreme Court against the provisional order. The ground of appeal was
essentially that the learned Judge had got it all wrong to hold that proof of
service of a summons at a domicilium
citandi et executandi was not the same thing as proof that the defendant
had actually seen that summons. The Judge was also attacked allegedly for having
incorrectly exercised her discretion to stay execution. As a result, the
respondent wanted the judgment set aside and substituted with an order
dismissing the application.
The respondent's notice
of appeal expressly stated that leave to appeal was not required. No reasons
were advanced for saying that. At the hearing it turned out that the basis for
such statement was s 43(2)(d)(ii) of the High Court Act, Cap 7:06. I shall come back to this aspect later on.
Soon after noting the appeal, the respondent
instructed the Sheriff to proceed with execution. Applicants' property was
advertised for sale. But applicants' officers got to know about it on 6 July
2015 from a business associate. They immediately swung into action. They
checked and verified with The Herald
newspaper that had published the sale advert. They also checked and verified
with the Sheriff. He confirmed he had been instructed by respondent's counsel
to proceed with execution, allegedly because the operation of the provisional
order by NDEWERE J had been suspended on account of the appeal. The sale was
scheduled for 11 July 2015.
On 8 July 2015 the applicants
filed the urgent chamber application. The respondent filed no papers. But it
was strongly opposed to the application, both on technical grounds taken in limine, and on the merits.
Respondents took two
points in limine. The first was that
the application lacked urgency. The argument was that the applicants knew very
well that once the respondent had obtained the default judgment it was surely
going to execute. It had indeed gone on to execute. It would have proceeded with
execution but for the provisional order by NDEWERE J. But respondent's argument
was that its notice of appeal had been served on the applicants on 5 June 2015.
From then on the applicants should have known that the operation of the
provisional order by NDEWERE J had automatically been suspended, thereby paving
the way for the resumption of the execution process. But it was not until a
month later that the applicants had filed the urgent chamber application, so ran
the argument.
I dismissed the
respondent's first point in limine. Quite
apart from the question whether or not the appeal was valid, which was applicants'
one and only strong point in support of the application, I considered that the argument
lacked merit on two fronts. The purpose of the appeal was not, and could not have
been, so as to enable the respondent to proceed with execution. The purpose of
the appeal to the higher court must have, or ought to have been, a genuine
desire to correct a perceived wrong by this court. In the particular
circumstances of this case, given that this court had, after a full hearing,
seen it fit to stay execution pending the determination of the application for
rescission of judgment, an appeal noted solely or essentially to allow
execution to proceed, when the reason for the stay was still there, would have
been, in my view, brazenly contemptuous and mala
fide. Thus, it did not follow that once the respondent had noted its appeal,
the applicants must have immediately anticipated that the respondent would be
proceeding with execution forthwith.
The second reason why I dismissed
the argument on urgency was that the applicants could hardly be accused of
having slept on their rights. The time to start counting was not when the
respondent had noted the appeal. It was when the applicants had got to know
that the respondent had instructed the Sheriff to proceed with execution in
spite of the provisional order. That time was 6 July 2015. Two days later the
application was launched. Therefore, there was no delay.
Respondent's second point
in limine was that this court was now
functus officio. The argument was
that the application before me was basically the same matter as determined by
NDEWERE J before. It was said that the arguments proffered before NDEWERE J
would be the same arguments to be proffered before me. The order sought was the
same as that granted by NDEWERE J.
The submission that this
court was functus officio was, in my
view, self-serving. The matter dealt with by NDEWERE J was an application for
stay pending resolution, by this court, of the application for rescission of
judgment. The matter before me, despite the imprecision of the papers, was an
application for stay pending the determination, by the Supreme Court, of the
respondent's appeal. Professor Madhuku,
for the respondent disagreed. He argued that the applicants had not come to
seek execution pending appeal. He said execution pending appeal was a different
premise altogether.
To some extent Professor Madhuku had a point. The draft
interim relief sought by the applicants read as follows:
“The execution against the
Applicants' property pursuant to an appeal noted by the First Respondent
against the Provisional Order granted by the Court under Case No. 1922/15 on 21
April 2015 is hereby stayed.”
Nowhere in the
applicants' papers was there was mention of a stay of execution pending appeal.
But I was not about to be detained by an argument about substance over form.
Admittedly, the applicant's founding papers, its draft order and even Counsel's
argument during the hearing, were essentially that the respondent's appeal was
invalid; that I must not recognise it at all; that nothing stems from an
invalid process and that therefore the earlier provisional order had not been
suspended. For that reason execution had to be stopped.
Adv.
Matinenga, for the applicants, submitted that ordinarily this
court would not be asked to consider the validity or otherwise of an appeal
that lies at the Supreme Court. That would be the function of the Supreme
Court. But in this case, he argued, the appeal was patently a nullity. And
given the surrounding circumstances, it was a proper case for me to stay
execution by ignoring it.
The flaw in Adv. Matinenga's argument, and which I pointed
out during the hearing, was that if the matter was dealt with on that basis,
and if I stayed execution, what then would be the position if the respondent
again decided to appeal against my decision, thereby automatically suspending
it? What would be the position if, on that account, and on its own construction
of the effect of the appeal, the respondent would then decide to proceed with
execution? Adv. Matinenga's reaction,
perhaps tongue in cheek, was that if I were to grant a stay of execution; and
if the respondents were to appeal against my order; and if on that account the
respondent would decide to proceed with execution again, then the applicants
would be forced to come back again for the third time. But where would it end?
That is precisely one
reason why I felt that the issues being argued before me were not the actual
case that I had to decide.
Be that as it may, I
dismissed the respondent's second point in
limine. The lack of precision in the applicant's papers and in its argument
was, to me, all about substance over form. In my view, the substance of the
applicants' application before me was a plea for a stay of execution pending
the determination of the appeal. But whilst I could express my own views about
the the respondent's appeal to the Supreme Court, it was not my place to
pronounce on its validity or otherwise. That was for the Supreme Court.
I ruled that this court
was not functus officio. In the
context of legal proceedings, to be functus
officio is to lack legal competence to adjudicate on the proceedings because
one would have disposed of them previously. To be functus officio is to have discharged one's office. But before me the application
for a stay of execution pending
appeal was a new issue. It had not been the issue before NDEWERE J. I
had to look at the application and determine it in accordance with the
principles governing applications for stay of execution pending appeal.
Having disposed of the
points in limine, the application
proceeded in earnest on the merits.
In its papers, and at the
hearing, the applicants' case, in summary, was this. Respondent's appeal was
invalid. The provisional order by NDEWERE J was an interlocutory order which
was unappealable without leave. No leave had been sought, let alone obtained.
Since no result flows from an invalid process, the respondent could not
possibly proceed with execution. JUSTICE NDEWERE'S order was still operative.
Reference was made to a
plethora of cases on orders or judgments that are purely interlocutory from
which no appeal lies without leave, and those having a final or definitive
effect which are appealable without the need for leave. In applicants' heads of
argument filed together with the application, reference was made to the cases
of Hunt v Hunt and 1, 2, 3 & 4 Combined Harare Residents Association & Anor v
Registrar-General & Ors. But in my view, all these
authorities were inapposite.
Other well-known and oft
quoted cases on the point, both in this jurisdiction and South Africa, are Dickinson & Anor v Fisher's Executors; Pretoria Garrison Institutes v Danish Products; South Cape Corporation v Engineering Management Services; Zweni v Minister of Law and Order; Jesse v Chionza; Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd; Mwatsika v ICL Zimbabwe. There are many others.
Where to draw the line
between decisions which are purely interlocutory and therefore unappealable
without leave, and those which are final and having a definitive sentence and
therefore appealable as of right, is a question that has vexed many eminent
lawyers and jurists for centuries: per
SCHULTS J in Cronshaw, supra and DE VILLIERS J in Davis v Press & Co. But the principle is now
settled. It was summarised by CORBETT JA in the South Cape Corporation case, supra. The term “interlocutory”
refers to all orders pronounced by the court, upon matters incidental to the
main dispute, preparatory to, or during the progress of, the litigation. Orders
of this kind fall in two classes: (i) those which have a final and definitive
effect on the main action; and (ii) those that are simple, purely and properly
interlocutory. A simple interlocutory order, i.e. a preparatory or procedural
order, is not appealable without leave.
Adv.
Matinenga urged me to find that the provisional order by
NDEWERE J on 21 April 2015 was purely interlocutory. Indeed it was. There could
be no rational argument against that. It was classically interlocutory because
it did not decide the issue or dispute between the parties. In my view, it was
actually an interlocutory matter within another interlocutory matter. The main
dispute between the parties was in HC 11024/14, the action matter in which the
respondent had obtained a default judgment. The application for rescission of
judgment was itself an interlocutory matter. The application for stay was even more
removed from the main dispute. It was an application within another
application. In no way would it decide the application for rescission, let
alone the dispute pending in the main action.
So ordinarily, no appeal
could lie against such a provisional order as was issued by NDEWERE J. But the
respondent nonetheless appealed against it without leave.
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. In terms of s 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 the Pretoria
Garrison case above. At p 867 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.”
In
casu,
the respondent argued that in spite of the order of NDEWERE J being
interlocutory, and therefore being one generally not appealable without leave,
nonetheless it had proceeded to appeal against it without leave because this is
permissible in terms of s 43(2)(d)(ii) of the High Court Act. The respondent
argued that the provisional order was an interdict. One does not need leave to
appeal against the grant or refusal of an interdict.
Section 43(2) of the High
Court Act 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 s 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.
Against the clear
provisions of s 43(2)(d)(ii) of the High Court Act, Adv. Matinenga's argument was that the court was not precluded from
deciding whether a particular interdict was purely interlocutory, the grant or
refusal of which would necessitate leave to appeal, or one with a final or
definitive effect, the grant or refusal of which would require no leave.
I do not agree. The section
is very clear. It does not refer to just an interdict. It expressly and unequivocally
refers to the grant or refusal of an interdict.
HERBSTEIN AND VAN WINSEN The Civil
Practice of the High Courts and the Supreme Court of Appeal of South Africa note from case
authorities that the grant of an interdict pendente
lite, though causing great, and indeed, irreparable prejudice, clearly does
not dispose of any issue or any portion of it in the main suit. The grant of
such interdict is appealable only with leave. But the refusal does not require
leave.
In Loggenberg v Beare and Davis v Press & Co it was held that the interdicts
pendente lite granted by the
magistrates' courts were not definitive and therefore not appealable. The two
judgments were interpreting a provision in the then Magistrate's Court Act of
South Africa almost similar to s
43(2)(d) of our High Court Act. The South African provision said in part:
“… a party to any civil suit or
proceeding in a Court may appeal … against … any rule or order made in such
suit or proceeding and having the effect of a final and definitive sentence,
including any order as to costs.”
But there is a world of
difference between that provision and s 43(2)(d)(ii) of the High Court Act. The
South African provision referred to any rule or order made in a suit having the
effect of a final and definitive sentence. On the other hand, s 43(2)(d)(ii) of
the High Court Act is very specific. It refers to the grant or refusal
of an interdict.
The major reason why I
felt that the case being argued before me was not really the one I had to make
a decision on was that the applicants' application was not, as I eventually
figured it out, about interdicts per se.
In a broad sense, to grant or refuse a stay of execution is to grant or refuse an
interdict. An interdict is an injunction. It is a remedy by a court, either
prohibiting somebody from doing something (prohibitory interdict), or ordering
him to do or carry out a certain act (mandatory interdict): see Oxford Quick
Reference Dictionary of Law and HERBSTEIN AND VAN
WINSEN, supra, at p 1455.
But in my considered
view, the focus of s 43(2)(d)(ii) of the High Court Act is not about
applications for stay of execution as a species of an interdict. Otherwise
every order of court, for instance, one directing someone to pay another a sum
of money, would always be an interdict. The distinction between ordinary
interdicts and stays of execution in particular is more apparent when one
considers the separate requirements for each remedy. With an interdict, the
applicant must show a clear right in his favour, or, in the case of an interim
interdict, a prima facie right having
been infringed, or about to be infringed; an apprehension of an irreparable
harm if the interdict was not granted; a balance of convenience favouring the
granting of the interdict, and the absence of any other satisfactory remedy:
see Setlogelo v Setlogelo; Tribac (Pvt) Ltd v Tobacco
Marketing Board; Hix Networking Technologies v System Publishers (Pty) Ltd & Anor; Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Anor and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent &
Anor.
On the other hand, in an
application for a stay of execution the requirements are real and substantial justice: see Cohen v Cohen; Chibanda v King; Mupini v Makoni and Muchapondwa v Madake & Ors. The premise on which a
court may grant execution pending appeal is the inherent power reposed in it to
control its own process. In Cohen's
case above GOLDIN J said:
“Execution is a process of the Court
and the Court has an inherent power to control its own process subject to the
Rules of Court. Circumstances can arise where a stay of execution as sought
here should be granted on the basis of
real and substantial justice. Thus, where injustice would otherwise be
caused, the Court has the power and would, generally speaking, grant relief.” (my emphasis)
In my view, the requirements
for an application for a stay of execution, admittedly a species of an
interdict, are less onerous than those for an ordinary interdict. In casu, justice would turn on its head
if I did not grant the substantive relief sought by the applicants. The sole
object of the provisional order by NDEWERE J on 21 April 2015 was undoubtedly to
preserve the status quo ante so as to
allow for the determination of the application for rescission of the default judgment.
The learned Judge obviously considered that real and substantial justice would be achieved by granting a
stay of execution. She most probably considered that allowing execution in the
face of an application for rescission of judgment would render any judgment in
favour of the applicants in that application a brutum fulmen. In the application before me, the respondent is now
saying, in effect, by the appeal stratagem, NDEWERE J's order was suspended and
that therefore the way has been opened for it to proceed with execution. But if
that were to happen, not only would any judgment in favour of the applicants in
the application for rescission be rendered brutum
fulmen, but also the object of the provisional order by NDEWERE J would be
rendered nugatory. That, to me, is manifestly intolerable.
It is for the above
reasons that I hereby grant the order for stay of execution. The interim relief
shall read:
“INTERIM RELIEF
GRANTED
The execution of the writ issued by
the first respondent pursuant to a default judgment obtained by it in HC
11024/14 is hereby suspended pending the determination of the appeal filed by
the respondent in the Supreme Court under SC 297/15 against the judgment of
this court in HC 1922/15.”
There is one last point. In
the applicant's papers, and during argument, the applicant deprecated the
conduct of the respondent's legal practitioner and pressed strongly for an
order of costs on an attorney and client scale, and de bonis propriis against him. However, the prayer for costs, and
at such a scale is one of the remedies sought on the return day as part of the
final relief. Accordingly, I make no order as to costs.
20 July 2015
Thompson Stevenson
& Associates,
applicants' legal practitioners
Mundia & Mudhara Legal Practitioners, first respondent's
legal practitioners
