CHAMBER
APPLICATION
UCHENA
JA:
The
applicant filed an urgent chamber application for the setting aside
of para 11 of the High Court's order made after hearing
consolidated opposed applications in H/C6272/19, H/C6630/19 and
H/C6692. In para 11 of its order the court a
quo
ordered that:
“Notwithstanding
any appeal that the first respondent may file against this order, the
operation of this order shall not be suspended by the filing of such
an appeal.”
The
court a
quo's
order in para 11 was clearly intended to render the anticipated
appeal by the applicant ineffective as regards the suspension of the
orders it had granted.
BACKGROUND
FACTS
The
parties filed three opposed applications before the court a
quo.
The applications were consolidated and set-down for hearing by the
court a
quo.
The parties had filed a statement of agreed facts which formed the
basis of the court a
quo's
judgment.
The
applicant and the first respondent were disputing over who should
have the control and right to mine at Etna Mine. The applicant and
the second respondent had entered into a partnership agreement
through which second respondent who was the registered owner allowed
the applicant to conduct mining operations at Etna Mine after which
they would share profits at agreed percentages. The partnership
agreement was for a five year period running from September 2016 to
September 2021.
Subsequent
to the partnership agreement and before the expiry of five years the
second respondent who held a registration certificate over the mine
sold it and the developments thereon to the first respondent.
Thereafter the applicant and the first respondent disputed over
control of the mine leading to the hearing of the consolidated
opposed applications. The consolidated applications were heard by two
judges sitting as the court a
quo.
The
applicant appealed against
their
judgment to this Court. After successfully noting the appeal the
applicant filed this urgent application.
SUBMISSIONS
BY THE PARTIES
Mr
Madzoka
for the applicant in his submissions correctly submitted that the
general rule is that a judge sitting in chambers cannot set aside an
order of the court a
quo.
He however further submitted that he filed this application because
such an application was granted in the case of Zimbabwe
Mining Development Corporation and Another v African Consolidated
Resources plc and Others 2010
(1) ZLR 34 (S). A reading of that judgment confirms that a judge
sitting in chambers set aside an order which had been granted by the
High Court.
Mr
Madzoka
did not rely on any other precedents or statute law to support his
reliance on the Zimbabwe Mining Development case (supra).
He instead eventually applied to amend the order sought by
substituting it with one suspending the operation of paragraph 11 of
the court a
quo's
order.
Mr
Ndhlovu
for the first respondent submitted that a judge sitting in chambers
does not exercise appellate jurisdiction. He submitted that appellate
jurisdiction in civil matters is exercised by the Supreme Court
constituted in terms of section 3, and exercising its jurisdiction in
terms of section 21 of the Supreme Court Act (Chapter
7:13).
He further submitted that the power to set aside an order of the
court a
quo is
exercised by the Supreme Court in terms of section 22(1)(a). He
cited the cases of Blue
Ranges Estates (Pvt) Ltd v Muduviri and Another 2009
(1) ZLR 368 (S) and Getrude
P. S. Mutasa and Didymus N. E. Mutasa v The Registrar of the Supreme
Court and Others
SC27/18 as authority for his submission that a judge sitting in
chambers cannot set aside an order of the court a
quo.
He
submitted that the Blue Ranges case (supra) clearly states that a
judge sitting in chambers cannot make an order striking off the roll
an appeal pending in the Supreme Court.
In
respect of the Mutasa case (supra)
he submitted that it was held that:
“..., once
a matter has been filed with the registrar only that court can remove
it from the roll on the basis that it does not comply either with the
rules of the court or a statute.”
Mr
Ndhlovu
in opposing the proposed amendment from setting aside para 11 of the
court a
quo's
order to the suspension of its operation submitted that the
suspension of the operation of para 11 of the court a
quo's
order suffers the same fate as it has the same effect of a
determination being made on the court a
quo's
order by a judge sitting in chambers.
Mr
Ndhlovu
in conclusion submitted that the Zimbabwe Mining Development case
(supra)
is not reliable authority for a judge sitting in chambers to set
aside the court a
quo's
order. He submitted that the decision in that case is not supported
by statute law or precedents from this Court.
Mr
Deme
for the second respondent agreed with Mr Ndhlovu's
submissions.
Mrs
Munyoro
for the third and fifth respondents submitted that the third and
fifth respondents will abide by the decision of the court.
Mr
Madzoka
in his reply sought to motivate the application for an amendment of
the order sought from the setting aside of para 11 to the suspension
of its operation. He did not respond to the effect of sections 3, 21,
and 22 of the Supreme Court Act on the applicant's application.
The
issue which falls for determination is whether or not a judge sitting
in chambers has jurisdiction to set aside or suspend the court a
quo's
order.
THE
LAW
Section
3 of the Supreme Court Act provides for the constitution of the
Supreme Court. It reads:
“For
the purpose of exercising its jurisdiction in any matter the Supreme
Court shall be duly constituted if it consists of not less than three
judges of whom one shall be —
(a)
the Chief Justice; or
(b)
a judge of the Supreme Court other than an acting judge of the
Supreme Court.”
Section
3 provides that for purposes of exercising appellate jurisdiction in
any matter the Supreme Court shall be constituted by not less than
three judges. This means a judge sitting in chambers cannot exercise
the jurisdiction and powers conferred on the Supreme Court. Such
jurisdiction or powers can only be exercised by the Supreme Court
constituted by not less than three judges.
The
jurisdiction of the Supreme Court in civil appeals is provided for in
section 21 as follows:
(1)
The Supreme Court shall have jurisdiction to hear and determine an
appeal in any civil case from the judgment of any court or tribunal
from which, in terms of any other enactment, an appeal lies to the
Supreme Court.
(2)
Unless provision to the contrary is made in any other enactment, the
Supreme Court shall hear and determine and shall exercise powers in
respect of an appeal referred to in subsection (1) in accordance with
this Act.”
It
is apparent from a reading of section 21(1) that the Supreme Court
has jurisdiction to hear and determine an appeal in any civil case
from any subordinate court or tribunal. A single judge sitting in
chambers does not sit as the Supreme Court, but as a single Supreme
Court judge whose role is to hear applications in terms of the
Supreme Court Rules 2018, intended to facilitate compliance with
procedural requirements for noting appeals and other preparatory
issues pending the eventual hearing of appeals by the Supreme Court.
Section
22(1)(a) of the Supreme Court Act puts beyond doubt the fact that the
power to set aside an order or judgment of the court appealed against
was given to the Supreme Court properly constituted in terms of
section 3. It provides as follows:
“(1)
Subject to any other enactment, on
the hearing of a civil appeal the Supreme Court —
(a)
shall have power to confirm, vary, amend or set
aside
the judgment appealed against or give such judgment as the case may
require.”
(emphasis added)
It
is clear that the Supreme Court on the hearing of an appeal can
exercise the power to set aside an order of the court a
quo.
The Act does not give the same power to a judge sitting in chambers.
A judge sitting in chambers does not hear appeals but hears
applications intended to facilitate the hearing of appeals.
The
jurisdiction of a judge sitting in chambers is provided for by the
Rules of the Supreme Court S.I 37/18, which Rules are made in terms
of section 34 of the Supreme Court Act.
Rule
5 provides for the hearing of chamber applications provided for by
the Rules as follows:
“An
application made to a judge under these rules may be heard either in
chambers or in open court and at such time as the judge may
determine”.
Therefore
the hearing of an appeal in terms of the Act by the Supreme Court and
the hearing of a Chamber application by a judge in chambers in terms
of the Supreme Court Rules cannot be equated or be mistaken to be one
and the same thing. I therefore do not agree with the authority
relied on by the applicant.
I
agree with the decision of this Court in Blue
Ranges (Pvt) Ltd v Muduviri (supra)
where MALABA DCJ (as he then was) at page 374 B to C said:
“I
agree with Mr Mlotshwa that a single judge of the Supreme Court
sitting in chambers has no power, derived from any provision of the
relevant statutes, to make an order striking an appeal pending in the
Supreme Court off the roll. The answer to the question whether a
single judge sitting in chambers has power to hear and determine an
application for an order striking an appeal off the roll lies in the
relevant provisions of the statute in terms of which the Supreme
Court was created and the rules regulating its proceedings.”
See
also the Mutasa case (supra)
where GUVAVA JA at pages 6-7 said:
“In
my view once the second respondent filed the notice of appeal within
the prescribed time, it ceased to be an issue upon which the
registrar's decision could be questioned or one where a single
judge of the Supreme Court could declare a nullity. I was thus not
convinced by the argument that there was a distinction between this
case and the Blue Ranges Case (supra)
as the net effect of such an order would be the same. If the matter
were to be struck off the roll it would no longer be before the
court.”
APPLYING
THE LAW TO THE FACTS
In
this case an appeal has been noted and is pending for hearing by the
Supreme Court. It is at that hearing that the propriety of para 11 of
the court a
quo's
order will be determined. It is at that hearing by the Supreme Court
when the applicant can seek the setting aside of that order.
I
fully appreciate the urgency created by the effect of the court a
quo's order.
I also appreciate the effect of the applicant's allegation that the
order was granted without following correct procedures. The
applicant's plea for an urgent resolution of the situation is
noted, but he may seek the setting aside of para 11 of the court a
quo's
order by the Supreme Court on an urgent basis.
If
the applicant can prove the need for the urgent resolution of the
situation created by the court a
quo's
order he can by court application, apply for the urgent hearing of
the appeal by the Supreme Court or apply for the setting aside of
para 11 by that court.
In
the result the applicant's application does not comply with the
Rules. It is struck off the roll with costs.
Ushewokunze
Law Chambers,
applicant's legal practitioners.
Mutamangira
and Associates,
1st respondent's legal practitioners.
Thoughts
Deme Attorneys,
2nd
respondent's legal practitioners.
The
Attorney General (Civil Division),
3rd
and 5th
respondent's legal practitioners.
