Chamber Application
BERE J: Having
heard the case involving the same parties in case number HC1028/09 in
chambers on 10 March 2009 I granted the following provisional order
on 16 March 2009;
“INTERIM
RELIEF
Pending the
confirmation of this matter, the applicants are granted the following
relief:
(a) That
applicants' possession, use and occupation of remainder of Dodhill
in the District of Hartley (Chegutu) be and is hereby restored, so
that the status
quo ante
prior to 5 February, 2009 is achieved;
(b) That the second respondent and all other persons claiming
occupation and possession through her not being representatives,
employees or invitees of the applicants on the Remainder of Dodhill
in the District of Hartely (Chegutu) shall forthwith vacate Remainder
of Dodhill in the District of Hartley (Chegutu) and that all movable
property introduced onto the property by them also be removed.
Pursuant thereto, in the event that it becomes necessary or expedient
to do so, the Deputy Sheriff is hereby authorised and empowered to
enlist the assistance of any member of the Zimbabwe Republic Police
who are directed to provide such assistance to him so as to ensure
that the provisions of this order are executed and implemented in
full.”
It should be noted that in the application now before me the now
applicant was the second respondent with the now second respondents
having been the two applicants in the earlier case already referred
to.
The background of this case can briefly be summarised as follows:-
In accordance
with the promulgation of the constitutional amendment number 17/05
Dodhill Farm which was originally owned by the applicants was
acquired by government and subsequently allocated to the applicant.
Whilst the applicants were still carrying out agricultural activities
on the farm, the applicant occupied the farm in circumstances which
prompted the two respondents to apply for a spoliation order which
culminated in me granting them a provisional order as captured above.
Aggrieved by the provisional order granted against her applicant now
seeks the leave of this court to enable her to formally lodge her
appeal in the Supreme Court of Zimbabwe.
The thrust of applicant's case is that this court erred in granting
the provisional order in favour of the respondents and that there are
reasonable prospects of success on appeal.
Respondents
have strongly opposed the application arguing inter
alia
that the order granted was not final in nature but merely an interim
relief whose next appropriate step would be for the applicant to seek
its discharge if she is not happy with it as opposed to seeking leave
to appeal against same.
It was also argued that there are no reasonable prospects of success
on appeal.
The third respondents opted to be bound by the court's decision.
It was
conceded by the applicant through her counsel Mr Bherebhende
that the applicant and her counsel had not read the reasons for the
court's decision at the time this application was filed and heard.
In the court's view, the assumption must be that before a litigant
seeks to appeal or seeks leave to appeal against the decision of the
lower court, one would have acquainted oneself with the reasons for
the judgment because it is such reasons which invariably prompt an
appeal, if at all.
In my view the approach adopted by the applicant through her counsel
is cause for concern because it has the potential of encouraging
litigants to file frivolous appeals.
Be that as it
may, it is clear that the chamber application filed is predicated
upon the provisions of section 43(2)(d) of the Act.
A perusal of the provisional order granted clearly indicates that it
was an order of an interim nature which order must under normal
circumstances await either confirmation or discharge by this same
court.
Section
43(2)(d) (supra)
recognises that there may be occasions when a litigant feels very
strongly that the interim remedy may not have been properly granted.
In such a scenario, the litigant must then seek the leave to appeal
from the judge who was seized with the matter. This is precisely what
has happened in this case.
There has been
conflicting signals from this court as regards the interpretation of
section 43(2)(d) (supra).
Others have expressed the view that the section allows any judge of
this court to entertain such an application with another view being
that such an application can only be heard by the judge who would
have heard the main case.
I am for the latter view.
For clarity's sake the section in question is worded as follows:-
“APPEALS
FROM HIGH COURT
43. Right of appeal from High Court in Civil cases
(1) Subject to this section…………..
(2) No appeal shall lie –
(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……..” (my emphasis).
It does not occur to me that this section should cause any confusion
as “that judge” can only refer to the particular judge who would
have handled the matter initially.
It is clear to me that the responsibility of hearing an application
for leave to appeal brought under this section cannot be mandated to
any other judge except “that judge”, who would have initially
been seized with the matter.
This was not an issue in the instant case but I felt inclined to
clarify the position.
REASONABLE PROSPECTS OF SUCCESS ON APPEAL
It was incumbent upon the applicant in this case to demonstrate or
show on a balance of probabilities that she has reasonable prospects
of success in the intended appeal.
During his submissions in chambers counsel for the applicant, in
response to a question as to why he had not sought to have the
provisional order discharged, retorted that his client was worried
about the effect of the provisional order on the applicant.
Counsel also
explained that there was merit in the decision of my brother UCHENA J
in the case of Andrew
Roy Ferierra and Katambora Estates (Pvt) Ltd vs Bess Nhandara
and that I erred in not following the reasoning therein.
It will be
noted that in my judgment in the main case I dealt at length with the
reasons which persuaded me not to follow the Andrew Roy Ferierra case
(supra)
and why I felt more inclined to grant the provisional order sought.
Having reflected on my reasons in the main judgment in the light of
the submissions made by the three legal practitioners in this case I
remain convinced that there are no reasonable prospects of success in
this case.
If anything,
one gets the impression that the main motivating factor in the
applicant bringing the instant application is a desperate attempt to
avoid complying with the order of the court to have the respondents'
status quo
ante
restored.
I think it would be a sad day if this court were to make orders which
would aid litigants like the applicant to subvert full compliance
with its own orders.
In the end, the application for leave to appeal is dismissed with
costs.
Mavhunga & Sigauke, applicant's
legal practitioners
Gollop & Blank,
1st
and 2nd
respondents' legal practitioners
Attorney General's Office,
3rd respondent's legal practitioners
1. High Court [Chapter 7:06]
2. HC3995/08
