MTSHIYA J: On
20 August 2010 I dismissed this application with costs. The applicant
has now placed before me a written request for the full reasons
behind my dismissed of its application. The applicant says it needs
the reasons because it intends to file an appeal in the Supreme Court
urgently. I give here below the reasons for my ruling.
On 12 August 2010 the applicant filed an urgent application in this
court seeking the following interim relief:-
“Pending the
finalization of the applicant is granted he following relief:
1. The 'Notice
of Extraordinary General Meeting, issued by the first respondent, for
a meeting to be held on 21 August 2010, is hereby declared null and
void.
2. The
respondents are hereby interdicted from purporting to act as
Directors of the applicant and interfering with and/disrupting the
applicant's management.
3. The
respondents shall pay costs of this application.
4. That leave
is granted to the applicant's legal practitioners to serve this
order upon the respondents”
The application was heard and dismissed for lack of urgency by
HLATSHWAYO J on 19 August 2010. The result slip in the record
confirms as follows:-
“Matter
dismissed as not urgent”
On 19 August 2010, the day HLATSHWAYO J made his ruling, the
applicant noted an appeal in the Supreme Court. The notice of appeal
states that the appeal is against the whole of the judgment of
HLATSHWAYO J and grounds of appeal are then given as follows:-
“1. The
learned Judge erred in finding that the applicant's application,
HC5500/10, was not urgent on the basis that there was an inordinate
delay between the time the issue of applicant's contested
Directorship came to the attention of the applicant's deponent in
HC5500/10 and the time of filing of HC5500/10.
In so doing the learned Jude failed to appreciate the fact that the
issue that has instigated urgency in HC5500/10 is the serving of
notices of an Extraordinary General Meeting of the applicant,
proposed by the respondents purportedly in their capacity as
applicant's Directors.
The fact of speculative knowledge about the improper claim to
Directorship by the respondents could not ground urgency in that that
would essentially amount to creating urgency where none exists.
Prior to the issuance of the notice to attend an Extraordinary
General Meeting therefore, the dispute as to Directorship could be
resolved by way of an ordinary court application.
Upon the service of the notice to attend the Extraordinary General
Meeting however, scheduled for 21 August 2010, the need arose to
interdict the respondents from acting in a manner inconsistent with
the position that their status as directors is disputed. Such an
interdiction could not be dealt with by way of an ordinary court
application. It could only be resolved by way of an urgent chamber
application, as such the learned Judge erred in finding that the
matter was not urgent.
2. The learned Judge also erred in finding that the averment
contained in the Supporting Affidavit of Ann Rushwaya, was evidence
of the fact that as far back as the 22 August of June the applicant
was aware of its purported change of Directorship. This is so because
a speculative suspicion that party has done something unlawful does
not ground urgency but the very act of actuating that illegal action,
e.g. by calling for an Extraordinary General Meeting, does ground
such urgency, thus despite the existence of that speculative
suspicion in June 2010, the basis of urgency has only arisen upon the
serving of the notices to attend an Extraordinary General Meeting”.
The judgment appealed against does not form part of the papers before
me.
On 20 August 2010 the applicant filed this application seeking the
following interim relief:-
“Pending the
finalization of the applicant's appeal in the Supreme Court
(SC197/10), the applicant is granted the following relief:
1. The
respondents be and are hereby interdicted from holding the purported
Extraordinary General Meeting of the applicant, scheduled for the
21st
of August 2010.
2. The
respondents shall pay the costs of this application”.
Clearly the above is the same relief that was prayed for on 12 August
2010.
I heard the application on the same day it was filed and indeed after
hearing argument from both counsel I dismissed the application with
costs.
The
certificate of urgency in support of the application indicated that
since the dismissal of the earlier application the issue of an
interdict remained alive because the Extraordinary General Meeting
proposed by the respondents was likely to be held on 21 August 2010.
Furthermore, the certificate went on, the dismissed matter
(HC5500/10) remained res
litigiosa on
account of the appeal noted in the Supreme Court. Accordingly, it was
stated, if an interdict was not granted the holding of the meeting on
21 August 2010 by the respondents would stand to ignore the fact that
there was pending litigation on the issue. The applicant therefore
believed there was need for the matter to be dealt with through an
urgent application.
I must hasten to mention that a few hours before the hearing of the
application I had asked for heads of argument on whether or not leave
to appeal was required in respect of the appeal filed in the Supreme
Court on 19 August 2010.
I am indebted
to Mr Chikumbirike,
for the applicant,
who
quickly filed heads of argument which I found useful.
In his heads
of argument Mr Chikumbirike
drew my attention to s43(2)(d)(ii) of the High Court Act [Cap
7:06]
which provides as follows:
“(2) No
appeal shall lie -
(a)……..
(b)……
(c)….
(i)…..
(ii)….
(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 any law relating to
arbitration”. (my own underlining)
Clearly the relief sought is that of an interdict referred to in
exception (ii) above.
Mr
Chikumbirike
also advised that upon dismissing the application the judge had
intimated that his decision was final and definitive and did not
therefore require leave of the judge for purposes of appeal.
I concur. (See Mwatsaka ICL Zimbabwe 1998 (1) ZLR 1 (H)).
Mr Chagonda,
for the respondent, although intimating that leave should have been
formally sought, was, however, of the view that since the appeal was
already before the Supreme Court, the applicant should have applied
to that court for an urgent hearing. He said the applicant could have
done so in terms of Rule 58 of the Supreme Court Rules which provides
as follows:-
“In any
matter not dealt with in these Rules the practice and procedure of
the Supreme Court shall, subject to any direction to the contrary by
the Court or a Judge, follow, as near as may be, the practice and
procedure of the High Court”.
He said the above rule opened a window for urgent applications to be
brought before the Supreme Court and that many cases had been handled
through that window.
Without
denying the fact that indeed many cases had reached the Supreme Court
through that window, Mr Chikumbirike,
relying on Lloyd
Guwa (2) Hazel Claris Kumire v Willoughby Investments (Pvt) Ltd
SC31/09, said unlike the High Court, the Supreme Court had no
inherent jurisdiction. He said it was a creature of statute whose
powers are clearly defined in the Supreme Court Act [Cap
7:13].
That being the case there was no opening for urgent applications.
Mr Chagonda
was of the view that the route taken by the applicant was simply a
way of bringing back the same refused application to the same court.
This was so because, if granted the effect of the relief sought meant
a reversal of the earlier decision of this court.
I agree.
Indeed if the interdict is granted the effect is to reverse the
earlier ruling of this court. As can be seen, the relief sought is
the same as the one earlier prayed for.
However, Mr
Chikumbirike's
argument was that the court's duty was merely to determine whether
or not, given the fact that an appeal now lies in a superior court,
it could be proper for the respondents to proceed with their proposed
meeting on 21 August 2010. In support of that stance, the applicant
in its founding affidavit and in line with the certificate of urgency
states, in part:
“6. Pending
the determination of that appeal therefore, the issue of the
application for the interdiction of the respondents from holding the
proposed meeting of the 21st
August 2010, remains a matter that is subject of pending litigation.
7. The applicant has a clear right to have that issue determined
before any action as to holding the proposed meeting can take place.
This is in line with protecting its right to proper recourse before
the law.
8. To allow
the meeting to proceed therefore would amount to the sanctioning of
the dealing in and with issues that are res
litigiosa.
Such a situation would inevitably cause the applicant irreparable
harm as the proposed meeting seeks to make various resolutions in
respect of the applicant, which resolutions are intended thereafter
to be put into effect. Such a situation must be stopped by this
honourable court.
9. The risk of
this irreparable harm is very imminent as the proposed meeting is
scheduled for the 21st
of August 2010 (the day after tomorrow). It is on this basis that the
applicant prays for an order interdicting the respondents from
holding the proposed Extraordinary General Meeting on the 21st
of August 2010, pending finalization of the applicant's appeal in
HC5500/10”.
The details relating to the business of the meeting to be held on 21
August 2010 were not given. Whilst I am of the view that it is
possible for the Supreme Court to be moved to grant an urgent hearing
to an appeal already before it, my assessment in this application is
that I am being asked to review the earlier decision of my brother
HLATSHWAYO J.
That cannot be and is not permissible.
That being the case there would therefore, in the main, be no
compelling reason for me to have the earlier judgment placed before
me. I simply do not have the power to review that judgment.
To the extent
that the parties were heard on the merits of the case relating to the
sole issue of urgency, I hold the view that this matter is now res
judicata.
I come to this conclusion on the basis that the relief being sought
is the same one that was before my brother HLATSHWAYO J. As argued by
counsel for the respondents, I believe I am being asked to grant the
same relief under the excuse of an appeal now pending in the Supreme
Court.
In addition to
the above, I also want to recognise that generally in civil matters
an appeal to the Supreme Court suspends the operation of the decision
appealed against (See Founders
Building Society v Mazuka 2000
(1) ZLR 52P (HC)). However, given the fact that no operational order
was ever granted by this court, I do not think the general rule
applies.
The Judge, after having heard the parties, merely refused to hear the
matter on the basis of urgency and there was never any consideration
of the merits of the case. There was no executable order issued by
the judge. That is why it was not necessary for respondents to make
an application for execution pending appeal.
In line with its acceptance of that fact, the applicant, in its
appeal, prays for the matter to be “remitted to the High Court to
be heard and determined on an urgent basis”.
All in all and
for the reasons I have given above I find myself totally disabled
from granting the relief sought. The above conclusions preclude me
from going any further because the appeal in the Supreme Court is
indeed intended to direct this court to go into the merits of the
matter.
The prayer in the appeal specifically reads as follows:
“That the
ruling by the High Court in HC5500/10 be and is hereby set aside, and
the matter is remitted to the High Court to be heard and determined
on an urgent basis.”
It would therefore be improper for me to do what the Supreme Court
has not yet directed this court to do.
In light of the foregoing I dismissed the application with costs.
Chikumbirike & Associates,
applicants' legal practitioners
Atherstone & Cook,
respondents' legal practitioners
