MAKARAU
JA:
This
is an appeal against the judgment of the High Court of Zimbabwe
ordering the return of all the goods belonging to the first and
second respondent attached pursuant to a default judgment granted
earlier by the same court against the second respondent.
The
judgment appealed against also ordered that the returned goods remain
under judicial attachment until the finalisation of the proceedings
between the parties.
The
facts of this matter are common cause. I summarise them hereunder.
The
appellant rendered legal services to the second respondent and others
which services were not paid for. The appellant sued for the unpaid
fees in the High Court and was granted a default judgement against
the second respondent. To satisfy the judgment, the third respondent
attached certain goods and chattels at the residence of the first and
second respondents, which is their matrimonial residence. The
attached goods were removed.
The
second respondent approached the High Court seeking an order staying
the execution process that was underway. That court, being of the
opinion that the application to stay execution had been brought after
the event, the goods having been removed, declined to hear the
application and accordingly dismissed it on the turn without going
into the merits of the matter. First respondent approached the court
a quo on a certificate of urgency, seeking an order returning all the
attached property that had been removed by the third respondent. The
court a quo granted the application as prayed, prompting the
appellant to note this appeal.
In
attacking the decision of the court a quo, the appellant raised four
grounds of appeal as follows:
1.
The court a quo erred in finding that the matter was urgent;
2.
The court a quo erred at law in dismissing the preliminary point that
the interim relief sought was res judicata and failing to find that
the first respondent was the privy of the second respondent;
3.
The court a quo erred at law in granting an interdict in
circumstances where there was an alternative satisfactory remedy;
4.
The court a quo erred in stalling the third respondent from carrying
out a lawful administrative act or process of execution against
property authorised by law absent any legal basis for doing so.
At
the hearing of this matter, the respondents took a point in limine.
It is whether or not leave to appeal ought to have been obtained
prior to the noting of the appeal.
It
is common cause that no leave was obtained before this appeal was
noted. In taking the point in limine, the respondents argued that the
decision of the court a quo was interlocutory.
In
response, the appellants argued that the decision of the court a quo
was a mandatory interdict.
I
am of the view that the judgment of the court a quo was neither
interlocutory as contended by the respondents nor a mandatory
interdict as argued by the appellant but was a final and definitive
judgment on the issue of the fate of the attached property.
Devitte
J in Mwatsaka vs ICL Zimbabwe 1998 (1) ZLR 1 (HC), discussed in
detail the nature of interlocutory orders. In his discussion, he
placed reliance on and accepted the definition of the term by the
authors Herbstein & Van Winsen Civil Practice of the Supreme
Court of South Africa 4th Ed who at page 827 define the term as:
“An
order granted by a court at an intermediate stage in the litigation,
settling or giving directions with regard to some preliminary or
procedural question that has arisen in the dispute between the
parties. Such an order may either be purely interlocutory or an
interlocutory order having final or definitive effect.”
The
judgment of the court a quo was not granted at an intermediate stage
in the litigation between the parties relating to the fate of the
attached goods. It was granted at the end of such litigation. It
settled that issue finally and definitively.
The
test on whether or not an order is interlocutory was set by Lord de
Villiers CJ in Steytler N.O. v Fitzgerald 1911 AD 295.
It
is whether on the particular point in respect of which the order is
made, the court has made a final pronouncement. If it has, the order
so made is appealable as being final and definitive.
This
approach has withstood the test of time and can be discerned in a
number of decisions made by this court over the years even if the
language employed may be different.
In
University of Zimbabwe v Kwanele Muriel Jirira and Others SC45/13,
this court had recourse to the nature of the decision that the court
a quo had made to determine whether or not the judgment appealed
against was interlocutory or final and definitive. This is what it
had to say:
“What
is to be determined in casu is the nature and effect of the decision
of the court a quo. Prior to that decision, the respondents had
obtained a writ of execution against the movables of the appellant to
satisfy the sum of US$291,214.13 awarded by the arbitrator. They had
also proceeded to serve an application for a garnishee order on the
applicant and its bankers, which operated to freeze the appellant's
bank account. Thus, as at the time of its urgent application, the
appellant was exposed to the imminent disposal of its library books,
computers and other equipment, as well as the inability to access its
bank account. On these facts, we take the view that the court's
refusal to deal with the matter as being urgent, whether correctly or
otherwise, had the effect of finality. In that sense, the decision
was final and definitive and not merely interlocutory.”
In
the result, it found that the court had made a final pronouncement on
the particular issue that was before it, the issue of whether or not
the matter deserved to be treated urgently. See also Trust Merchant
Bank Limited vs Marko Properties Construction (Pvt) Limited t/a Msuna
Safaris and Travel SC73/2002; Mine Mills Trading (Pvt) Limited and
Others vs NJZ Resources (HK) Limited SC40/2014 and Jameson Rushwaya
and Others vs Swimming Pool and Underwater Repairs (Pvt) Limited
SC19/2012.
From
the decisions of this Court on the matter, one can therefore discern
a clear position at law that, broadly speaking, a judgment that puts
to rest one or more issues between the parties is not interlocutory
for the purposes of section 43 of the High Court Act [Chapter 7.06].
Instead such a judgment is to be regarded as final and definitive and
consequently appealable. This is so notwithstanding that some other
aspects of the dispute between the parties may remain live and wait
to be determined in different future proceedings.
Applying
the above law to the facts of this matter, it is my finding that the
judgment of the court a quo was final and definitive as regards the
attached property. The court ordered that the first respondent
retains possession of the property until the other proceedings
between the parties were resolved. The judgment of the court a quo
put to rest the issue of the possession of the attached property. Put
differently, by ordering the return of property, the court a quo did
not reserve any other issue for determination before itself. Its
decision on the matter was therefore final.
Accordingly,
no leave was required before the appeal was noted.
Counsel
for the appellant argued that the judgment granted by the court a quo
is a positive interdict. Leave to appeal in the circumstances would
not be required as the law exempts the seeking of leave where the
judgment appealed against is the grant of an interdict.
Whilst
I have found above that leave to appeal was not necessary as the
judgment of the court a quo was final, I may observe in passing that
the judgment of the court a quo was not the grant of a positive
interdict. None of the parties adverted to the requirements for a
positive interdict and in its judgment, the court did not do so.
A
reading of the judgment of the court a quo suggests to me that the
court did not merely seek to direct the third respondent to stay
execution of the default judgment. It reversed the process of
execution to the point of restoring possession of the attached
property to the first respondent. It then ordered that this position
be maintained until the first respondent's application for
rescission of judgment was determined.
In
PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Limited
and Another 1993 (1) ZLR 55 (H), it was observed that a mandatory
interdict is designed to remedy a situation of a continuing wrong and
not to remedy a “one off” situation.
In
contrast, the relief that was granted by the court a quo was
specifically designed to remedy a one off situation. It was meant to
restore possession of the attached property to the first respondent
pending the determination of her application for rescission of a
default judgment that had purportedly been granted in her absence.
The
factors that a court takes into account before granting a mandatory
interdict are well known and settled. (See Setlogelo Setlogelo 1914
AD 221). These were not reflected upon by the court a quo in its
judgment which in my view was an exercise of its discretion, rightly
or wrongly, to control its proceedings.
On
the basis of the foregoing, it is my view that leave to appeal was
not required in this matter as the judgement appealed against was a
final and definitive judgement on the issue that was before the
court.
I
turn to deal with the first ground of appeal.
In
the first ground of appeal, the appellant argued that the court a quo
should not have treated the matter as urgent as the second applicant
had approached the court earlier through another urgent chamber
application, seeking to stay the execution of the default judgment.
It
is common cause that the second respondent had approached the court
on 10 February 2017. The attached property was removed on 11 February
2017. The second respondent's urgent application was heard and
dismissed on 12 February 2017. The second application by the second
respondent was then filed on 18 February 2017.
It
is in these circumstances that the appellant argues that the court a
quo misapplied the principles regulating urgency by holding that the
matter was urgent. In the appellant's view, the court a quo ought
to have held that the matter was not urgent and should have
resultantly dismissed the application on that basis.
It
is further common cause that the court a quo, fully cognisant of the
above facts, formed the opinion that the matter was urgent and
thereafter proceeded to hear and determine the matter on that basis.
The
finding by the court a quo was an exercise of discretion by that
court.
The
issue that then presents itself in this appeal is whether or not the
Appeal Court must interfere with such exercise of discretion.
Matters
are heard urgently if in the opinion of the court seized with the
matter, the determination of the matter cannot wait the usual
allocation of trial dates in terms of the rules of court. Whilst each
matter falls to be determined on its own facts, there is a plethora
of case authority on the factors that a court must advert to before
it makes a finding that a matter warrants to be heard on an urgent
basis.
In
my view, a finding that a matter is urgent simply enables such a
matter to go to the head of the queue of the matters that are before
that court and thereby demand the urgent attention of the court. Such
a finding does not colour the merits of the matter. More importantly,
such a finding does not in itself dispose of the matter, unlike a
finding that the matter is not urgent, which is a final and
definitive judgement as discussed above.
It
is my further view that a finding of urgency by a court cannot
constitute a substantive ground of appeal, one that can stand on its
own in the absence of another ground showing that having exercised
its discretion to hear the matter urgently, the court caused an
injustice to the appellant or erred in some other regard. In other
words, it will not be proper on appeal, to set aside an otherwise
correct decision of the court a quo merely on the basis that the
court a quo arrived at that correct decision on an urgent basis which
was unwarranted. This is so because an appeal is a procedure through
which the correctness of the decision of the lower court is tested
and once its correctness is accepted, no appeal can lie against it.
I
therefore find no merit in the first ground of appeal which is
accordingly dismissed.
In
the second ground of appeal, the appellant alleges that the court a
quo erred at law in dismissing the preliminary point that the interim
relief sought was res judicata and in failing to find that the first
respondent was the privy of the second respondent.
In
dismissing the point in limine, the court a quo found that the
applicant before it was different from the applicant in the earlier
proceedings. The court a quo did not avert to the issue whether or
not the first respondent is a privy of the second respondent, a
contention which the appellant invites us to accept.
It
is trite that a judgement, unless in rem, binds only the parties to
the suit to which it relates. It cannot bind third parties even
though the action concerns the same subject matter and is based on
the same cause of action.
The
appellant has sought to have the first respondent bound by the
dismissal of the first application by alleging that in the earlier
application, she was the privy of the second respondent. This is so
because a privy to a party in legal proceedings is bound by the
outcome of such litigation even if they do not participate in the
actual proceedings by virtue of their relationship at law to the
participating party.
Becks
Theory and Principles of Pleading in Civil Action 5th ED p 167,
state:
“Persons
are privy to parties when they claim or derive title or interest
through or by parties ….”
I
cannot agree with the contention by the appellant that the first
respondent was the privy of the second respondent in the earlier
application before the court a quo. The first respondent is not
asserting a right to the property that is derived from the second
respondent. She is asserting an independent right to the property in
her individual capacity. Whilst accepting that the property attached
is joint matrimonial property, she avers that she has directly and
indirectly contributed to the acquisition of the assets, which
averment in my view amounts to averring ownership of the assets
either outrightly or jointly with the second respondent.
There
is no privity between co-owners of an estate simply because they
jointly own a common asset.
It
is therefore my finding that the first respondent was not the privy
of the second respondent and is therefore not bound by the decision
against the second respondent. On the basis of the above, the second
ground of appeal is dismissed.
In
the third ground of appeal, the appellant contends that the court a
quo erred in awarding an interdict in circumstances where there was a
satisfactory alternative remedy.
As
correctly argued by counsel for the respondents, in my view, the
first respondent had the option to approach the court as she did or
to approach the third respondent for the issuance of an interpleader
notice in terms of the High Court Rules, 1971.
In
approaching the court as she did, the first respondent was not only
contending that the she has a proprietary interest in the attached
property, she also contended that the default judgment pursuant to
which the property was attached was granted in error and in her
absence as an interested party and that she had approached the court
for such erroneous judgment to be set aside. In the interim she
prayed for the return of the attached property.
The
decision by the court a quo was clearly a value judgment. In its
words:
“….in
the face of the application for rescission, it would make little
sense to permit the goods to be sold off at this point.”
The
court a quo proceeded to observe that “it would also make little
sense for the goods to remain in storage accumulating high storage
charges pending hearing of the matter”, before it ordered the
release of the goods to the first respondent.
A
different court, faced with the same facts, may have exercised its
discretion differently and come to a different conclusion. This court
may have come to a different conclusion were it the court of first
instance. This is inevitable with decisions based on the exercise of
judicial discretion.
There
is no one standard answer.
The
law recognises this diversity in values as expressed in value
judgments and has sought to protect the exercise of discretion by
restraining the Appeal Court from substituting its own discretion for
that of the lower court in the absence of an error on the part of the
lower court.
The
settled position at law holds that it is not sufficient that the
Appeal Court considers that if it had been in the position of the
court a quo it would have arrived at a different decision. For the
Appeal Court to interfere with the discretion of the court a quo, “…
it must appear that some error has been made in exercising the
discretion. If the primary court acts upon a wrong principle, if it
allows extraneous or irrelevant matters to guide or affect it, if it
mistakes the facts, if it does not take into account relevant
considerations, then its determination should be reviewed and the
Appellate Court may exercise its own discretion in substitution ...”,
per GUBBAY CJ in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S).
I
find no error in the manner that the lower court reasoned and
exercised its discretion.
In
the absence of a finding of an error on the part of the court a quo,
this Court is constrained to respect and recognise the exercise of
discretion by the lower court.
In
the fourth and final ground of appeal, the appellant contends that
the court a quo erred in stalling the third respondent from carrying
out a lawful administrative act or process of execution against
property authorised by law absent any legal basis for doing so.
Again,
I am unable to agree with the appellants in this regard.
It
is trite that the High Court has inherent and undisputed power to
control its proceedings. In ordering the return of the attached
property pending finalisation of the hearing of the application for
rescission of judgment, the court a quo was simply controlling its
own proceedings, having formed the opinion that it would make little
sense to have the property sold or held in storage in the interim.
The
third respondent is Sheriff of the High Court and his actions in
execution are on warrant from the High Court. His actions are part of
the court's proceedings and are always subject to and under the
control of the court.
In
my view it is a short step to hold that the principle that the court
has inherent power to control its proceedings extends to controlling
the manner in which the third respondent, as Sheriff of the court,
carries out his duties. This is the basis upon which the court has
stayed execution of its judgments in a number of cases. This, in my
view, is the legal basis upon which the court a quo directed the
third respondent to return the attached goods.
In
so doing, the court a quo cannot be said to have been acting in
error.
I
have not been able to uphold any of the grounds of appeal raised by
the appellants. In the circumstances, the appeal cannot succeed. It
must therefore be dismissed.
I
see no reason why costs must not follow the cause. None were pressed
upon by the appellant.
In
the result, I make the following order:
The
appeal is dismissed with costs.
GARWE
JA: I agree
GUVAVA
JA: I agree
Nyakutombwa
Mugabe Legal Counsel, appellant's legal practitioners
Mwonzora
& Associates, 1st and 2nd respondent's legal practitioners
