Before
MALABA DCJ:
In
Chambers
On
9 March 2009 the High Court made a spoliation order for the
restoration of peaceful and undisturbed possession of Twyford Estate
in Chegutu to the applicant at the same time directing the first
respondent and all those claiming possession of the property through
him to vacate the farm forthwith failing which the Deputy Sheriff be
authorized to remove them. The spoliation order was issued in the
form of a provisional order. It provided as follows:
“TERMS
OF THE ORDER MADE
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
1.
The applicant's right to quiet undisturbed, possession of Twyford
Estate Chegutu district as further particularized in the High Court
orders annexed to this application as Annexures '2' and '3'
and all movables thereon including livestock (hereinafter called “the
property”) be and is hereby confirmed. That it is further declared
that such right shall continue to subsist until such time as the
applicants -- should it become necessary or expedient - are lawfully
evicted from the property through a competent order of court having
final effect.
2.
It be and is hereby declared that the conduct of the 2nd respondent
and all other persons acting in common purpose or association with
him on or about the property from the 6th February 2009 until their
removal, resulting in dispossession of applicants from their property
is unlawful for want of compliance with due process to obtain vacant
possession of the property and accordingly constitutes an unlawful
spoliation of applicants' property.
3.
Respondents pay the costs of this application jointly and severally,
the one paying the other to be absolved.
INTERIM
RELIEF
That
pending determination of this matter the applicants are granted the
following relief:-
(a)
It be and is hereby ordered that the status quo ante to applicants'
possession control and occupation of Twyford Estate in the district
of Chegutu prior to 2nd respondent and all other persons acting
through him summarily occupying the property on the 6th February 2009
be and is hereby restored.
(b)
2nd respondent and all other persons claiming occupation and
possession of the property and/or all other persons not being
representatives, employees or invitees of applicants are directed to
forthwith vacate the property removing all movable property that may
have been introduced by them onto the property.
(c)
To the extent that it becomes necessary or expedient, the Deputy
Sheriff is hereby authorized and empowered to attend to the removal
of the 2nd respondent and all other persons acting through him from
the property so that the provisions of this order are executed and
implemented in full.”
It
is common cause that the order made by the learned Judge in the form
of interim relief is a spoliation order.
On
11 March 2009 the first respondent who was the second respondent to
the application, appealed to the Supreme Court against the order. The
notice of appeal contained all the matters required under Rule 29 of
the Rules of the Supreme Court 1964 (“the Rules”) for a valid
notice of appeal. It stated that the order from which relief was
being sought was a final and definitive order.
On
22 April the applicant made an application to a single Judge of the
Supreme Court sitting in chambers for an order striking the appeal
off the roll on the ground that in terms of section 43(2)(d) of the
High Court Act [Cap 7:06] (“the High Court Act”), the order made
by the learned Judge was an interlocutory order in respect to which
no appeal lay to the Supreme Court without the leave of the Judge who
made the order or if that was refused, without the leave of a Judge
of the Supreme Court. Leave of the learned Judge had not been sought
before the appeal was noted. The contention was that no appeal was
pending before the Supreme Court.
The
first respondent opposed the application on two grounds.
The
first point taken in limine was that a single Judge of the Supreme
Court sitting in chambers has no power to grant the relief sought by
the applicant.
The
contention was that an appeal, the noting of which complied with the
requirements of the rules, is pending hearing by the Supreme Court
until “the Court”, in the exercise of its jurisdiction, decides
that in terms of the enactment creating the right of appeal no appeal
lies against the order from which relief is sought.
The
first respondent said that if the applicant intended to have the
appeal struck off the roll it should have applied to the Supreme
Court for the relief on a court application as required under Rule
39. It could also have raised the matter by way of a preliminary
objection to the exercise by the Court of its jurisdiction to hear
the appeal in terms of Rule 41 of the Rules.
Rule
39 provides that:
“Subject
to the provisions of Rules 31, 36, 37 and 38 applications shall be by
court application signed by the applicant or his legal representative
and accompanied by an affidavit setting out any facts which are
relied upon.”
Rules
31, 36, 37 and 38 relate to matters in respect to which it is
specifically provided that relief can be sought by application to a
Judge of the Supreme Court sitting in chambers or open court.
Striking an appeal off the roll is not one of the matters provided
for under any of these rules.
Rule
41 provides that:
“A
party to an appeal who intends to rely on a preliminary objection to
any proceedings or to the use of any document shall give notice in
writing of the objection to the Registrar and to the opposite party.
If the objection is to be taken at the hearing of an appeal three
copies of the notice shall be given to the Registrar.”
The
second point taken by the first respondent on the application was on
the merits.
He
averred that the order made by the learned Judge was a final and
definitive order despite the fact that it is interlocutory in form.
He said because of the nature of the order an appeal lay to the
Supreme Court in terms of section 43(1) of the High Court Act without
the leave of the Judge who granted the order.
In
reply to the point in limine the applicant contended that a Judge of
the Supreme Court sitting in chambers constituted “the Court”
with power to grant the relief sought.
On
the allegation that there was non-compliance with Rule 39 or Rule 41
the applicant said that Rule 4 of the Rules gives the Judge
discretion to condone non-compliance with any rule of court if it is
in the interest of justice to do so.
The
argument was that I should exercise the discretion under Rule 4 to
condone applicant's failure to make an application to Court in
terms of Rule 39 for the relief it sought on the application to a
Judge in chambers. The argument was that it was in the interest of
justice that I hear and determine the application.
A
copy of an unspeaking order made by the late MUCHECHETERE JA in
chambers on 26 January 1999 in Croc Ostrich Breeders of Zimbabwe v
Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 was produced to support
the proposition that a single Judge of the Supreme Court sitting in
chambers has power to grant an order striking an appeal off the roll.
The
order declared that the notice of appeal filed by the respondent on
20 November 1998 in the Supreme Court was invalid for want of the
appellant thereto having applied for and been granted leave to appeal
against the judgment of the High Court in Case No. HC7118/98 as
provided in section 43(2)(d) of the High Court Act [Cap 7:06].
On
the second point raised by the first respondent, the applicant
persisted in the contention that the order made by the learned Judge
was interlocutory. In support of the contention, reference was made
to decisions of the High Court in Nyasha Chikafu v Dodhill (Pvt) Ltd
& Ors HH41-2009 and T Nyikadzino v John Cameron Asher & Ors
HH36-2009.
In
Chikafu case supra BERE J made a spoliation order in the form of a
provisional order couched in terms similar to those used in the
provisional order made in this case. The applicant who was aggrieved
by the order applied to the learned Judge for leave to appeal
believing that the order was interlocutory. The learned Judge found
as a fact that he had made a spoliation order. He held that the order
was interlocutory and refused leave to appeal on the ground that
there were no prospects of success on appeal.
In
Nyikadzino v John Cameron Asher supra a spoliation order was also
made in the form of a provisional order the terms of which were also
similar to those used in this case. The applicant who was also
aggrieved by the order appealed to the Supreme Court. The respondent
nonetheless instructed the Deputy Sheriff to execute the order on the
advice of its legal practitioners that the order was interlocutory
and as no leave had been sought and obtained from the Judge who
granted it, no appeal lay to the Supreme Court for an order staying
execution of the order pending appeal.
The
learned Judge President heard the opposed application. She found as a
fact that the order made “was a spoliation order, simply restoring
possession of the farm to the first respondent without going into the
merits regarding lawfulness or otherwise of such possession”.
She
went on to hold that a spoliation order granted in the form of an
interim relief was an interlocutory order not appealable without the
leave of the Judge who made the order or if that has been refused,
without the leave of a Judge of the Supreme Court. The learned Judge
President dismissed the application after saying that:
“A
provisional order granted under the rules is always subject to
confirmation or discharge before it becomes final. Confirmation on
discharge is in open court and is on a balance of probabilities. In a
provisional order, the power of the court to vary, discharge or
confirm its earlier decision is re-affirmed in that it calls upon the
respondent to show cause why the provisional order may not be
confirmed. It is because of the above attributes of a provisional
order that I am of the view that orders granted by this court in the
form of a provisional order, can hardly be final in their effect.”
I
now turn to determine the issues raised in the application.
On
the first point 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.
It
is also necessary to take into account provisions of the enactments
by which the right of access to the Supreme Court on appeal is given.
Section
43(1) of the High Court Act provides that subject to the exceptions
specified thereunder an appeal in any civil case shall lie to the
Supreme Court from any judgment (includes order) of the High Court.
The
right of appeal lies to the Supreme Court which is the body endowed
with the power to hear and determine the appeal.
The
Supreme Court was created by section 80(1) of the Constitution as a
final Court of Appeal for Zimbabwe without original jurisdiction
except when constituted as a Constitutional Court to hear and
determine applications under section 24(1) of the Constitution
alleging violation of the declaration of rights.
The
Supreme Court consists of the Chief Justice, the Deputy Chief
Justice, such other Judges of the Supreme Court, being not less than
two, as the President may deem necessary and such other Judges as
have been appointed acting Judges of the Supreme Court.
As
a Court of Appeal the jurisdiction of the Supreme Court exercised by
the Judges of whom it consists is to hear and determine appeals which
in terms of the enactments granting the rights of appeal lie to it.
Jurisdiction is conferred on the Supreme Court in any civil case by
section 21 of the Supreme Court Act [Cap 7:13] (“the Act”) which
provides that:
“(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.”
There
is a minimum number of Judges required to duly constitute the Supreme
Court when exercising its power to hear and determine an appeal.
It
shall be properly constituted for the purpose of exercising its
jurisdiction before not less than three Judges sitting at the fixed
time and place with the assistance of its appropriate officers such
as legal practitioners. That is clear from the provisions of section
3 of the Act which state that:
“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.”
A
Court of law will not entertain proceedings such as an appeal unless
it is satisfied that it is competent to do so and that the
proceedings have been instituted in the proper form.
In
providing that for the purpose of exercising its jurisdiction over
any matter, the Supreme Court shall be duly constituted if it
consists of no less than three Judges, section 3 of the Act
effectively precludes a single Judge sitting in chambers or open
Court from exercising the power conferred on the Court under section
21.
The
words “any matter” in section 3 of the Act include the question
whether the terms of the enactment giving the right of appeal from a
particular court, limit the power of the Supreme Court to hear the
appeal in respect of the order from which relief is sought by the
aggrieved party.
It
is for the Supreme Court duly constituted to make a finding that no
appeal lies to it against the order and strike the appeal from the
roll.
As
a single Judge of the Supreme Court cannot determine the matter he or
she cannot make the order striking an appeal off the roll.
If
the appellant intended to have a decision made as to whether the
order from which relief was sought by the first respondent was
appealable without the leave of the Judge, it should have approached
the Supreme Court by way of a court application as required by Rule
39. It could also have raised the matter by way of a preliminary
objection to the exercise of jurisdiction by the Court.
In
Pretoria Racing Club v Van Pietersen 1907 TS 687 the respondent's
legal practitioners took the point that no appeal lay to the
Transvaal Provincial Division in the case because the spoliation
order made by the Judge was, in terms of section 22 of Proclamation
14 of 1902 an interlocutory order not appealable without the leave of
the Judge who made it. The full court consisting of INNES CJ, SMITH
and CURLEWIS JJ accepted that it was for the court in which the
appeal was noted to decide on the facts of each case what the nature
of a particular order is in order to determine whether it fell within
the category of final or interlocutory orders. At p 493 SMITH J
writing for the full court said:
“The
point, in my opinion would have been more properly raised as
preliminary to the hearing of this appeal when a decision upon it
would have been necessary.”
It
is clear that as the question would have turned on the construction
of the terms of the enactment creating the right of appeal which in
this case is section 43(1) read with section 43(2)(d) of the High
Court Act, it would have been a matter within the competence of the
Supreme Court to decide in terms of section 21 of the Act.
The
order striking the appeal off the roll could only be made following a
finding on the nature of the order from which relief was being sought
on appeal.
The
order made by the late MUCHECHETERE JA in the Croc Ostrich Breeders
case supra is of no assistance in the determination of the question
raised by this application. It is an unspeaking order which does not
disclose the facts on which it was based. It states on the face of it
that it was made in a chamber application in terms of Rule 39 of the
Supreme Court Rules.
Rule
39 would not permit of an application for that relief to be made to a
single Judge sitting in chambers.
The
order simply declared that the notice of appeal filed by the
respondent on 20 November 1998 in the Supreme Court was invalid for
want of the appellant thereto having applied for and granted leave to
appeal against the judgment of the High Court as provided in section
43(2)(d) of the High Court Act [Cap 7:06]. It did not strike the
appeal off the roll.
One
gets the impression that it may have been common cause that the order
from which relief had been sought on appeal was an interlocutory
order.
Mr
Mlotshwa argued that a Judge cannot use the discretion conferred on
him or her under Rule 4 of the Rules to direct a departure from a
Rule in order to assume jurisdiction which he or she does not have
over a matter.
I
agree.
Rules
of court are made under section 34 of the Act for the purpose of
regulating proceedings of the Supreme Court and facilitate the proper
dispatch by the Court of its business. The rules cannot be used to
usurp the court's jurisdiction under section 21 of the Act. Rule 4
of the Rules is not applicable to the facts of this case.
I
would accordingly dismiss the application on the point in limine
alone.
Just
in case I am wrong in the conclusion on that point, I have decided to
express my views on the question whether the order made by the
learned Judge is an interlocutory order not appealable in terms of
section 43(2)(d) of the High Court Act without the leave of the Judge
who made it.
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.
An
order for discovery or extension of time within which to appeal, for
example, is final in form but interlocutory in nature. The reason is
that it does not have the effect of determining the issues or cause
of action between the parties.
In
this case it was common cause that the order made by the learned
Judge was a spoliation order.
When
the applicant made the application for the order to the High Court it
placed three issues of fact before it for determination.
The
first was that it was in peaceful and undisturbed possession of the
property at the time the first respondent appeared on the scene.
The
second was that the first respondent deprived it of such possession
unlawfully (without due legal process) and without its consent. In
other words the first respondent arrogated to himself the right to
take property out of the possession of the applicant.
The
third was that it was entitled to be restored to the possession of
the farm.
All
these facts in issue had to be determined in favour of the applicant
for the spoliation order to have been made in applicant's favour.
The issue between the parties was therefore whether there was
spoliation. By making the spoliation order the learned Judge
confirmed that on the affidavit evidence placed before her, she found
that the three elements of spoliation had been established. The
spoliation order was the authority for the restoration of the
applicant to the possession of the property.
The
finding of the fact in issue was a final and definitive determination
of the fact in question. There would have been no other final
determination of the issue of spoliation on the return day. A clear
right in the applicant to be restored to the possession of the
property would have been established.
A
spoliation order cannot be granted on evidence of a prima facie
right.
If
the learned Judge was not satisfied or was somehow doubtful that the
affidavit evidence established a clear right in the applicant to be
restored to the possession of the property she should not have made
the spoliation order.
Once
the order was made and fully executed it was discharged. There would
have been no order to discharge on the return day.
The
fact that the order was in the form of an interim relief is
irrelevant to the consideration of the question whether it is final
or interlocutory. The issue of an order in the form in which it was
applied for does not make the order itself a provisional order. For
an order to have the effects of an interim relief it must be granted
in aid of, and as ancillary to the main relief which may be available
to the applicant on final determination of his or her rights in the
proceeding.
It
has been the realization of the fact that a spoliation order disposes
of the issue or portion thereof between the parties that authorities
say that it is a final and definitive order.
Herbestein
& Van Winsen, “The Civil Practice of the Supreme Court of South
Africa” 4ed state at p 1064 that:
“A
mandament van spolie is a final order although it is frequently
followed by further proceedings between the parties concerning their
rights to the property in question. The only issue in the spoliation
application is whether there has been a spoliation. The order that
the property be restored finally settles that issue as between the
parties.”
In
Pretoria Racing Club supra, the contention was that the spoliation
order from which relief was sought on appeal was an interlocutory
order not appealable without the leave of the Judge who made it. It
was also argued that to allow an appeal from a spoliation order would
render useless the remedy intended to be granted to the person
despoiled.
Disposing
of the argument SMITH J writing for the full bench on the Transvaal
Provincial Division said at p 697:
“In
order to decide whether such an order is final or not I think the
test must be arrived at by considering what the object of the
proceedings is as a matter of substance. See the judgment of ROMER LG
in Re Hebert Reeeves & Co [1902] 1 Ch 29. Now the substantial
matter in dispute in the present application was the right of the
respondent to the present possession of certain property: if an act
of spoliation was established then his right was clear. That was the
matter and the only matter decided by the learned Judge, the
consideration that legal proceedings might be subsequently instituted
to test whether the possession could be legally sustained appears to
me to be foreign to the question at issue, and the order made was in
my opinion a final order within the meaning of the Rules of Court. We
were pressed on behalf of the respondent to say that the order was
interlocutory from a consideration of the consequences which would
follow if an appeal from it was allowed. It was pointed out that if
an appeal from a spoliation order is allowed the result will be to
keep the matter in suspense so long that the remedy may become
useless. With regard to this argument I would say, in the first
place, that if the order is in its nature a final order the court
would not hold it to be otherwise merely because its execution might
be stayed, and the remedy granted by it be delayed.”
Nienaber
v Stuckey 1946 AD 1049 is authority for the principle that the right
to the restoration of possession of the property must be established
as a clear right and not a prima facie right before a spoliation
order can be made. The right must not be open to doubt. At p 1053-4
GREENBERG JA, said:
“The
learned Judge in the court below followed what was said by BRISTOWE J
in Burnham v Neumeyer (1917 T.P.D. 630 at p 633) viz:
'where
the applicant asks for a spoliation order he must make out not only a
prima facie case, but he must prove the facts necessary to justify a
final order – that is, that the things alleged to have been
spoliated were in his possession and that they were removed from his
possession forcibly or wrongfully or against his consent.'
I
agree with what was there said as to the cogency of the proof
required. Although a spoliation order does not decide what, apart
from possession, the rights of the parties to the property spoliated
were before the act of spoliation and merely orders that the status
quo be restored, it is to that extent a final order and the same
amount of proof is required as for the granting of a final interdict
and not a temporary interdict”.
The
last case I want to refer to on the subject is Mankowitz v Lownthal
1982 (3) SA 758 (A).
When
dealing with the question whether the court a quo was correct in
awarding costs to the party in whose favour a spoliation order was
made JANSEN JA adopted with approval the following statement of law
at 767G-H:
“Now
a spoliation order is a final determination of the immediate right to
possession. It may not resolve the ultimate rights of the parties but
it is the last word on the restoration of possession ante omnia. An
application for spoliation is thus not an interlocutory application,
and, save in special circumstances, the costs should follow the
event, and should not be made to depend on the outcome of some other
action or application even if such concerns the ultimate rights of
the parties to the property or thing in dispute.”
It
is clear from the authorities that the learned Judge in Chikafu v
Dodhill (Pvt) Ltd and the learned Judge President in Nyikadzino v
John Cameron Asher supra used the wrong test of considering the form
of the order to determine whether it is final and definitive or
interlocutory.
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.
In
this case the first respondent had the right to appeal to the Supreme
Court against the spoliation order made by the learned Judge on 9
March 2009 without first obtaining the leave of the Judge.
The
application is accordingly dismissed with costs.
Gollop
& Blank, applicant's legal practitioners
Antonia,
Mlotshwa & Co., first respondent's legal practitioners
