This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer. The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated or that alternatively he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal.

That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds that it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator, on the ground that an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed that the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court. The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent.

…,. Ms Mberi submitted that the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended that the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then all the more reason for it to oppose registration on that point.

But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission that the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction.

…,. I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application especially after it received the interim relief it sought in order to forestall it.

It was aware that the purpose of seeking registration was to execute.

Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent; and

(b) The execution of the arbitral award could not be stayed because the award had become a High Court judgment whose execution cannot be suspended by the Labour Court.

In this Chamber application, counsel for the University essentially argued that execution of the award of the arbitrator was suspended by the Labour Court, which preceded the registration of the award in the High Court. Consequently, Magaramombe could not execute the award despite its registration with the High Court as the execution of the award had been suspended by the Labour Court by the time it was registered.

In other words, the award that was registered was a suspended award which could not be executed.

Counsel for Magaramombe, on the other hand, initially raised two preliminary points:

She submitted that the Supreme Court had no jurisdiction to hear the Chamber application because there was no valid appeal before the Supreme Court. She argued that the court a quo simply ruled that the matter was not urgent and such ruling was interlocutory. She contended that the University had not obtained the leave of the court a quo to appeal. Leave to appeal not having been sought and granted, there can be no valid appeal before the Supreme Court....,.

I also accept the submission of counsel for Magaramombe that a determination of whether or not a matter is urgent is interlocutory.

An appeal against such a determination would certainly require the leave of the court a quo. If such leave were granted, the superior court can only interfere with such a ruling on the basis of a misdirection or gross unreasonableness.

In casu, as I have already stated, the learned Judge went beyond ruling on the urgency or otherwise of the matter. The court a quo determined that the execution of the arbitral award could not be stayed on the basis of a suspension order issued by the Labour Court.

The learned Judge reasoned that the Labour Court was inferior to the High Court; consequently, the Labour Court could not suspend a judgment of the High Court. He concluded that once a judgment is registered in the High Court it becomes a judgment of the High Court and cannot be interfered with by the Labour Court.

This determination by the court a quo is not interlocutory. It is a definitive and final determination and therefore appealable by the University without the need for leave of the court a quo.

On this basis, I am satisfied that the Supreme Court is properly seized with the matter and that the relief sought in this Chamber application relates to a matter with which the Supreme Court is properly seized.

The parties herein were formerly husband and wife. Two minor children were born from the union, namely, Anthony Christie Pissas (born 8th March 1994) and Dean Alexander Pissas (born 13th October 1995).

On 2 November 2006, this Honourable Court granted a decree of divorce in favour of the respondent herein. The respondent was awarded custody of the minor children.

Prior to the decree of divorce being granted, the parties had entered into a Consent Paper in terms of which other ancillary relief was provided for. The terms of the Consent Paper defined the right of access to the minor children by the applicant (described in the Consent Paper as defendant) as follows:

“Defendant shall be entitled to exercise access to the minor children on alternate weekends, including alternate public holidays and school exeat weekends, and alternate school holiday periods.

The parties will alternate Easter holiday periods and Christmas/New Year periods (where the Christmas/New Year period will be from the morning of 24 December to the afternoon of 2 January.

On those occasions when it is the defendant's weekend for access he will collect the children every Thursday on termination of school activities and shall have them with him until he returns them to school the following Monday morning.

The parties agree that access periods will necessarily need to be flexible depending upon the personal and business commitments from time to time of each of the parties.”

On 18 March 2008, GUVAVA J granted an order in favour of the respondent.

The order is not before me but is common cause that the respondent had applied to this court for an order permitting her to take the children out of this country on an urgent basis and relocate with them in the United Kingdom. The applicant had opposed the granting of the order but was unsuccessful.

The applicant has noted an appeal against the order of 18 March 2008.

Subsequent to the appeal being noted, the applicant sought an assurance that the respondent would not depart with the children before the appeal was determined. Notwithstanding the noting of the appeal, the respondent did not feel compelled to provide the undertaking sought by the applicant.

He has learnt it was her intention to take the children out of the country on 26 March 2008.

The applicant wishes to have the appeal heard and has filed an urgent application for relief which is in the following terms:

“TERMS OF ORDER MADE

That the respondent show cause to the Honourable Court why a final Order should not be made in the following terms:

1. That, pending the Appeal instituted by the Applicant in Case No SC/08 (Refer HC1476/08) or the earlier written consent of the Applicant, the Respondent be and is hereby interdicted from removing the minor children, ANTHONY CHRISTIE PISSAS and DEAN ALEXANDER PISSAS, from Zimbabwe.

2. That the Respondent shall bear the costs of this application.

INTERIM RELIEF GRANTED

1. The respondent is hereby directed to forthwith deliver up all the passports of each of the minor children, ANTHONY CHRISTIE PISSAS (born 8th March 1994) and DEAN ALEXANDER PISSAS (born 13th October 1995), to the Registrar of this Honourable Court who shall retain the said passports pending the outcome of the Applicant's appeal in SC/08 (Refer HC1476/08) or the earlier receipt of Applicant's written consent to the release of the passports to Respondent.

2. The Applicant's legal practitioners, Atherstone & Cook, be and are hereby authorized to serve this order on the Department of Immigration Offices in Liquenda House and on an Immigration Officer at Harare International Airport or any other point of entry to/exit Zimbabwe and to serve the Order on Respondent at the offices of her legal practitioners, Scanlen & Holderness.

3. This Order shall take effect upon the Respondent immediately upon issue without the need for service on her.”

In his founding affidavit in support of the application, the applicant has averred that he had filed a notice of appeal to the Order granted on 18 March 2008. The Notice of Appeal is filed with his papers.

He goes on further to state that whilst he does not object, in principle, to the children relocating to England, such relocation should be in circumstances where it is in their best interests to do so.

He says, further, that there should be a proper infrastructure for the children's day to day care, supervision and stability, all living costs, education, and medical transportation and proper arrangements for paternal access.

He goes further to state that he had learnt that the respondent was due to depart this country with the minor children on 26 March 2008 and was then desirous of having her interdicted from taking the children away until the details on their livelihood had been established in a satisfactory manner.

In seeking to oppose the grant of this provisional order, apart from raising issues on the merits which I believe were dealt with by my sister judge, GUVAVA J…, the respondent contended that the appeal had not been properly filed in the absence of leave from this court because the appeal was against an interlocutory order.

Per contra, the applicant contends that the order, although issued as a provisional order, is final in effect due to the nature of the relief granted.

The question as to whether the applicant required leave to appeal can be resolved in another way without the need for me to enquire into the nature of the order issued, be it interlocutory or final.

Although both parties went to some detail to justify their respective stances, it is my view that these are issues that were before the judge who granted the respondent the authority to depart from Zimbabwe with the children.

For me to rehash them again would be akin to reviewing those proceedings. I will not do so.

In my view, the only issues for determination by me is whether or not the applicant required the leave of this court to note the appeal, and, whether having noted such an appeal, the Order of this court, is, as a result, suspended.

In addition, the applicant has sought a temporary interdict pending the appeal.

The temporary interdict is being sought as part of the final order, and, although it is not before me, I would still have to determine whether or not I should, on the facts, issue a Provisional Order incorporating as part of the final order a temporary interdict against the respondent.

In terms of section 43 the High Court Act [Chapter 7:06] appeals from the court are provided for as follows:

“1. Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.

2. No appeal shall lie -

(a)…,. not applicable

(b)…,. not applicable

(c)…,. not applicable

(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 at concerned;

(ii) Where an interdict is granted or refused;

(iii)…,..not applicable.”

According to counsel for the applicant, the applicant is entitled, by virtue of the provisions of the section, to launch an appeal directly to the Supreme without the need for leave, because not only did GUVAVA J issue an interdict, but the issue then before her Ladyship was concerned with question of the custody of the minor children of the parties.

Counsel for the respondent's view is that what the applicant is seeking to ensure is that his access rights to the children are secured. She argues that access is not custody, and, as a result, the exception provided in the section does not apply in this particular instance.

Access is an incidence of custody, and, in my view, the two go hand in hand where there are rights of more than one parent are at stake.

It cannot have been the intention of the Legislature to accommodate parents who are engaged in issues relating to custody specifically to the exclusion of anyone and to grant such parents an automatic right of appeal to the Supreme Court whilst not granting the right to parents wishing to enforce rights to access.

Were access to be excluded in the exception to the section, it would, in my view, lead to an absurdity such as would not have been the intention of the Legislature.

In any event, as pointed out by counsel for the applicant, the provisional order issued on 18th March 2008 was, in its final terms, to the effect that the respondent should retain custody of the minor children of the parties.

It is obvious that, therefore, the appeal is properly taken as the court had been dealing with the custody of the minor children of the parties. The fact that what the applicant wishes to enforce is access and not custody would not, in my reading of the section, preclude him from being able to launch his appeal. My reading of the exception is that it would be if No mention is made of the access rights of the applicant and it is to that extent that the applicant wishes to have the order appealed against.

In terms of the interim relief granted, apart from an authorization to remove the children from the jurisdiction, the respondent was granted an interdict in terms of which the applicant was restrained from preventing the respondent from removing the children from this jurisdiction.

So, assuming I am incorrect in finding that access is an incidence of custody, and that, on that basis, the applicant would not have required leave to file the appeal, part of the order from the judgment appealed against was an interdict, and, on that basis, the appeal would qualify under the exceptions referred to section (2)(d).

I find, therefore, that there was no need for leave to appeal and that, therefore, there is an appeal pending before the Supreme Court.

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 first and 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, the 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 the applicant's case is that this court erred in granting the provisional order in favour of the first and second respondents and that there are reasonable prospects of success on appeal.

The first and second 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 respondent opted to be bound by the court's decision.

It was conceded, by the applicant, through her counsel, 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 High Court Act [Chapter 7:06].

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) of the High Court Act [Chapter 7:06] 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) of the High Court Act [Chapter 7:06].

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…,.”…,.

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 v Bess Nhandara HC3995/08 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 Andrew Roy Ferierra and Katambora Estates (Pvt) Ltd v Bess Nhandara HC3995/08 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.

The parties are engaged in rather acrimonious litigation concerning the consecration of the second respondent as the Anglican Bishop of Harare, on 26^th July 2009, done in the face of a Court Order barring such consecration.

On 24 July 2009 HLATSHWAYO J..., issued a provisional order barring the first respondent in the following terms:

“TERMS OF INTERIM ORDER

(a) That the consecration of a new Bishop by the respondent on the 26^th July 2009, or any date thereafter be and is hereby stopped pending the discharge or confirmation of this order on the return date.

TERMS OF FINAL ORDER SOUGHT

(a) That it be declared that Dr. Nolbert Kunonga is still the Bishop of the Diocese of Harare.

(b) That the respondent is barred from recognising any Bishop of the Diocese of Harare until there has been compliance with the Constitution of the respondent.

(c) That it pays the costs of suit.”

This is an application for directions in the execution of the provisional order.

The salient facts of the matter are that the applicant entered into a lease agreement with the respondents wherein he leased Shop Number 10 Njube Trading in 2003 and another shop in 2005 known as Jika Jika Bar, Restaurant and Grocery.

At the beginning of 2008, a rent dispute arose which resulted in this application.

I granted the provisional order on 5 January 2009 and the Deputy Sheriff effected service on both respondents. On 6 January 2009, the respondents filed a notice of opposition and served it on the applicants' legal practitioners on 7 January 2009. On the same day, the 7th day of January 2009, the respondents filed a notice of appeal to the Supreme Court appealing the interim relief.

On the advice of their legal practitioner that the appeal to the Supreme Court suspended the provisional order, the respondents disregarded the provisional order.

Upon receipt of this information, the applicants' legal practitioners contacted the respondents legal practitioners on the 12th day of January 2009 in an attempt to resolve the misconception regarding the effect of their “appeal”.

It is conceded by counsel for the respondents that he undertook to counsel for the applicant that the Deputy Sheriff would be advised to proceed with the removal of the respondents on the property thereby giving the applicant vacant possession. Counsel for the applicant had brought to his attention that he was due to leave the country on the 13th day of January 2009. Counsel for the respondents wrote a letter to counsel for the applicant's legal firm, the contents of which are as follows:-

“13 January 2009

Messrs Dube-Banda, Nzarayapenga and Partners
Legal Practitioners
Bulawayo

Dear Sirs

RE: GREENFIELD NYONI VS MRS. L. P EMISSIRY AND ANOTHER HC02/09, SC02/09 AND HC32/09

We are of the view that you used the wrong procedure in obtaining a hearing date for HC02/09. Your application was for directions yet your intention and draft order was to anticipate the matter. Be that as it may, the matter did not take off on the said date.

We are also of the view that if you are aggrieved with the Notice of Appeal filed by ourselves, you will have to file a separate application challenging it. It is our respectful view that the said Notice of Appeal cannot be dealt with within HC02/09.

We filed our Notice of Opposition in HC02/09. If the matter is to continue, we believe you should file you answering affidavit. However, in our view, until the appeal is dispensed with, it is not possible for HC02/09 to be heard.

If you believe our client is in contempt of court, we believe you know the procedure.

Yours faithfully

(signed)
CHEDA AND PARTNERS”

Counsel for the applicant has urged the court to give a directive in view of counsel for the respondents conduct as he has assisted his client to be in contempt of court. The said contempt is based on the following facts which are not in dispute:-

1. The appeal is a nullity.

2. The order he appealed against is not appealable without the leave of the court.

3. Did not approach him for a set down date as per the court order.

4. To date he has not taken steps to prosecute the appeal.

5. He has not paid the security costs.

6. His clients remain in defiance of a court order.

7. He has remained defiant up to date.

In response to this, counsel for the respondents initially became defiant until, at a later stage of the proceedings, when he admitted that he did not act properly as he misled his client and consequently expressed sorrow for what he did.

The fact that the respondents are in contempt of court admits of no doubt. The law is clear in this point; a person who is in contempt remains so until he purges that contempt. Such a person cannot be heard until the contempt is purged.

Counsel for the applicant has urged the court to find counsel for the respondents guilty of misconduct.

In my view, the misconduct complained of was wilful.

In Lewis v Great Western Railway Company BRAMWELL LJ (1877) 3 QBD 195…, defined it as follows:-

“'Willful misconduct' means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be willful. It has been said, and that, I think, correctly, that, perhaps, one condition of 'wilful misconduct', must be that the person guilty of it should know that mischief will result from it.”

The golden rule for misconduct for all legal practitioners is clearly set out in Legal Ethics, E.A.L. LEWIS…, where the learned author states:-

“A practitioner must avoid all conduct which, if known, could damage his reputation as an honourable citizen.”

A legal practitioner has a duty to act honestly and fairly at all times. In addition to this, he must always be truthful and candid in all his dealings.

Counsel for the respondents was not honest with his colleague when he misled him into believing that he would implement the agreement; that he would advise the Deputy Sheriff to execute the provisional order. In fact, all the complainants listed by counsel for the applicant (supra) are correct.

All I can say, without more, is that this type of conduct is deplorable and reprehensible.

Legal practitioners are warned to desist from this type of conduct lest their professional careers stand the risk of being brought to a complete halt. Lawyers, as officers of the court, have an unfailing duty to obey court orders and should not be seen to be assisting litigants in the said disobedience.

I find that counsel for the respondents actively and persistently assisted his clients to do so.

Counsel for the applicant has urged the court to award costs against counsel for the respondents de bonis propiis in view of his misconduct.

I find favour in this submission.

Infact, counsel for the respondents, at a very late stage of the proceedings, conceded that he had ill-advised his clients to disobey the court order.

I am of the opinion that this is an appropriate case for costs of this nature in order to show the court's indignation for such wilful misconduct by a legal practitioner.

The following order is made:-

(1) The provisional order issued by this court on the 15th day of January 2009 should be executed within 48 hours of this order; and

(2) Mr. Mangena should pay costs of today's hearing de bonis propriis.

More importantly, an order granting leave to execute under section 40 of the Magistrates Court Act [Chapter 7:10] is interlocutory, and, accordingly, not appealable – Van Leggelo v Transvaal Cellocrete (Pty) Ltd 1953 (2) SA 287 (T); South Cape Corporation (Pty) Ltd v Engineering Management Services (Pvt) Ltd 1977 (3) SA 534 (A)..., and South African Druggists Ltd v Beecham Group Plc 1987 (4) SA 876 (T) – see also JONES and BUCKLE – The Civil Practice of the Magistrates Court in South Africa (8^th Edition)...,.

In casu, the applicant seeks stay of execution “pending appeal”.

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:

“IT IS ORDERED THAT:

1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody and under its control vehicles registration number no. AAU 8190, ABC 3354 and AAP 1952.

2. Mydale International (Pvt) Ltd shall record the mileage on each vehicle from the time of receipt from the second respondent.

3. Mydale International (Pvt) Ltd shall be entitled to ordinary use of the motor vehicles and shall not sell or otherwise alienate the said motor vehicles without an order of court.

4. Messrs Byron Venturas & Partners shall within 24 hours of the order surrender to the Registrar of the High Court, Harare the US$28,500 the proceeds for the sale of the six motor vehicles owned by Mydale International (Pvt) Ltd for retention by the Registrar pending the determination of any dispute over ownership of Mydale International Marketing (Pvt) Ltd.”

On 4 April 2009, the first respondent noted an appeal against the order, and, as a result, he did not surrender the money to the Registrar as had been ordered....,.

On 21 April 2009, the applicant launched these proceedings under a certificate of urgency for the grant of a Provisional Order....,.

The terms of the interim relief being sought were the following:

“INTERIM RELIEF GRANTED:

(a) Pending appeal, within 24 hours of the service of this order on him, the first respondent and his lawyers Messrs Venturas & Samukange shall comply with para 4 of the judgment by OMERJEE J in case HC1049/09 dated 3 April 2009.

(b) Failing compliance, the first respondent, and the said lawyers, shall, within a further 24 hours, appear before this honourable court to show cause why he/they should not be committed to prison for contempt of court.”

The order by OMERJEE J is still extant in the sense that it has not been set aside by the Supreme Court.

The order was to the effect that the money which is subject matter of a dispute between the applicant and the first respondent be deposited with the Registrar until the ownership of the shareholding in the applicant has been determined.

The respondent has taken the position that he noted an appeal, and, as a result, did not need to comply with the part of the order requiring that he surrender the money to the Registrar.

In the interim relief sought, the applicant sought to make the order operational without having sought from court an order for execution of the judgment pending appeal.

Although the underlying theme in the body of the founding affidavit is to the effect that the judgment was interlocutory and could not be appealed against, the order being sought, for the legal practitioners of the respondent to pay the money to the Registrar, seems to recognize the validity of the appeal, as the preamble to the order sought shows.

The applicant has made much of the allegation that the appeal was made in order to frustrate the execution of the order by the learned judge.

The question as to whether the appeal has merit is not before me and I cannot delve into such an issue.

The applicant also avers that the appeal is null and void for want of validity as the judgment is interlocutory. The applicant cited no authority for this proposition.

It is a generally acceptable principle that at common law the noting of an appeal suspends the operation of a judgment, and that the consequence of the noting of the appeal is that the execution of the judgment is stayed unless the court directs otherwise. Normally, the party intending to execute against the judgment would approach the court for leave to execute pending appeal.

The applicant has not applied for leave to execute pending appeal which is a necessary procedural step.

The leading case in South Africa which has been followed by our courts is that of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) 534. At p 544H-545C CORBETT JA stated:

“Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks & Anor 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and given effect thereto, except with the leave of the court which granted the judgment.

To obtain such leave, the party in whose favour the judgment was given must make special application. (See, generally, Olifants Tin “B” Syndicate v De Jager 1912 AD 377 at 481; Reid and Anor v Godart & Anor 1938 AD 511 at p513; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746).

The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to intending appellant either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid's case supra at p513). The Court to which application for leave to execute is made has a general discretion to grant or refuse leave, and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (See Voet, 49.7.3; Ruby's Cash Store (Pty) Ltd v Estate Marks & Anor, supra at p127. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments (c.f. Fismer v Thornton 1929 AD 17 at p.19).”

In my view, before seeking to have the court order that the respondent deposit with the Registrar the money in dispute before the parties, the applicant ought to have sought an order to the effect that the appeal was null and void for want of compliance with the Rules on the grounds that the order was interlocutory or for an order for leave to execute pending appeal.

It is also pertinent to note that the appeal is before the Supreme Court, and, it is, in my view, the Supreme Court which should state whether or not the appeal is null and void for want of compliance with the Rules.

In the absence of such a declaration, it is not open to this court to find that the appeal is null and void.

The applicant has done neither, and, it is therefore not in this court's power to order that the respondent complies with the order of OMEREE J.

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:

“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for stay of execution.

2. In the event of the second respondent having ejected applicant from the premises known as 93 Coventry Road Harare, he is hereby directed, temporarily, to return possession of the premises to applicant pending the outcome of the application for stay of execution.”

The terms of the final order sought include, inter alia;

“That second respondent be and is hereby ordered to stay execution permanently against applicant pending the outcome of the Civil Appeal 251/10 ref CIV “A” 423/10.”

The background of the matter is briefly as follows:

The applicant and the first respondent entered into a lease agreement in respect of 93 Coventry Road wherein the applicant was the lessee.

On 9 September 2009, the first respondent's estate agents, Guest and Tanner, invited the applicant to come and discuss an increase in fair rental from $1,200 per month. The first respondent's representatives went for the discussion but the estate agents' representative missed the appointment, and, consequently, no discussion about the issue was ever held.

Subsequently, the applicant offered to increase the rental to $2,400 per month which was accepted by the first respondent. The estate agents communicated acceptance of the offer by a letter dated 21 October 2009 wherein they also gave the applicant a six month notice to vacate the premises on the ground that the first respondent required the premises for its own use. The notice period endured up to 30 April 2010.

Came 30 April 2010, the applicant did not vacate the premises.

On 17 May 2010, the first respondent filed an application for eviction of the applicant in the Magistrates' Court. On 7 June 2010, the Magistrates' Court granted the application. On 8 June 2010, the applicant noted an appeal in this court against the order for its eviction.

Since the noting of the appeal had the effect of suspending the judgment appealed against, the first respondent filed an application for leave to execute pending the appeal.

That application was granted.

The applicant, again, noted an appeal against the order granted to the first respondent to execute pending appeal. Thereafter, the applicant filed this urgent chamber application for the provisional order. The chamber application was accompanied by a certificate of urgency.

At the hearing, counsel for the first respondent raised the following points in limine:

(1) The application lacks urgency in that six months notice to vacate was given. Applicant sat back and it was only on 28 April 2010 (two days before expiry of the notice to vacate that the applicant, in vain, attempted to cajole the first respondent into signing an agreement it had drafted to have the notice period extended.

(2) If relief to stay the execution is granted, this would be tantamount to this court overruling the magistrate's decision to execute pending appeal. Effectively, the applicant was asking this court to determine the appeal when it is not sitting as the Appeal Court.

(3) The court should determine whether there is a valid appeal against the magistrate's decision to grant leave to execute pending appeal.

There is no appeal in this respect because that order to execute pending appeal is not a final or definitive one. It is merely an interlocutory order and such an order is not appeallable. Over and above that, the Notice of Appeal pertaining to that order is fatally defective in that it falls foul of Rule 7 of the Supreme Court Miscellaneous Appeal and Reference Rules, 1975 by not stating all the aspects required in a Notice of Appeal.

In the event, so the argument went, there is no appeal that was noted and the applicant has no basis to come before this court.

Counsel for the applicant, in response, contended that the matter was urgent in that the applicant believed that instead of the matter being brought by way of application, it should have been brought by way of summons since there existed a dispute of fact, viz whether the first respondent required the premises for its own use. Further, the urgency arises because of the first respondent's insistence on eviction before the applicant's appeal is heard.

Regarding the point that if relief to stay execution is granted, this would amount to overruling the magistrate's decision, he said it is interwoven with the one whether the judgment being appealed against is final or not. He submitted that the judgment is final in that once the applicant is evicted, the purpose of its appeal is frustrated.

On whether the Notice of Appeal is fatally defective, he denied that the same rules are applicable. Even if they are, the Notice is sufficiently clear, on the papers, regarding which judgment is being appealed against, the second one granting leave to execute pending appeal. He submitted that the prayer that the judgment of the court a quo be reversed is the standard practice in this regard....,.

3. The validity of the appeal against the magistrate's decision to grant leave to execute pending appeal

The issue for resolution here is whether an order granting leave pending appeal to execute a judgment is interlocutory or final.

It is settled law that if it is final it is subject to appeal, and, if merely interlocutory, then it is not appeallable.

Let me turn, with profit, to the case of Gillespies Monumental Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 (HC).

In the case, the parties had a dispute regarding mining rights over a certain piece of land. The dispute resulted in an order that GILLESPIES vacate the area. GILLESPIES noted an appeal against the order granted. Zimbabwe Granite filed an urgent chamber application seeking an order that leave to execute the order be granted notwithstanding the filing of the notice of appeal. The order applied for was granted. GILLESPIES then filed an appeal against the order and applied for an order that Zimbabwe Granite vacate the area concerned pending the outcome of the two appeals. The application was dismissed with costs.

SMITH J, after considering a series of decisions of the Appellate Division of South Africa and JONES and BUCKLE: The Civil Practice of the Magistrates Courts in South Africa Vol. 1, 8ed…, regarding the meaning of the terms 'interlocutory order' and 'interlocutory judgment', concluded that his order granting leave to execute pending appeal did not have a final or definitive effect on the main suit.

In other words, it was an interlocutory order and could only be appellable with leave of the court.

He held that in the absence of such leave, the noting of the appeal was invalid and hence there was no basis for the application by GILLESPIES: see also Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H); Faye Trust v Moses Zhanje and Anor HH57-02.

It is pertinent to point out the distinction, that, while leave of the High Court is required before making an appeal to the Supreme Court against an interlocutory order or judgment, in the Magistrate's Court the situation is different.

Subsection (2) of section 40 of the Magistrates Court Act [Chapter 7:10] does not provide for the court's leave to appeal.

Appeals are by choice of the appellant but limited to judgments, rules, orders, or decisions covered by paragraphs (a), (b) and (c) of the subsection. The common thread running through those provisions is that the judgment, rule, order, or decision being appealed against must have “the effect of a final and definitive judgment.”

It follows, therefore, that those orders or judgments which are of a purely interlocutory nature are not appeallable.

It having been established that an order granting leave to execute pending appeal, such as the one exitant in the instant case, is purely interlocutory and thus not having the effect of a final judgment on the main suit, despite causing inconvenience to the applicant, it is to all intense and purposes not subject to appeal.

In the result, the noting of the appeal by the applicant against the magistrate's order granting leave to execute pending appeal was invalid and there was no basis for this application. The bringing of the application could be described as analogous to shutting of the stable door after the horse had bolted.

Accordingly, the urgent chamber application is hereby dismissed with costs.

The background facts of this matter are not outlined by both the applicant and the first respondent. After gleaning through the papers filed of record the brief facts of this matter can be summarized as follows -

On 22 June 2010 the first respondent obtained an eviction order in the Magistrates' Court against the applicant on the grounds that the applicant had breached the terms of the lease agreement by late payment of rentals for the months of March, April and May 2010. The applicant appealed to this court against this decision on 23 June 2010. (Appeal No 271/10 under case number Civ 'A' 450/10...,.. This appeal had the effect of suspending the eviction order granted on 22 June 2010.

The first respondent proceeded to file an application for leave to execute pending appeal in the Magistrates' Court on 12 July 2010 which leave was granted on 5 August 2010 despite being opposed by the applicant. The applicant, realizing the imminent consequences of the Magistrates' Court's order proceeded to note an appeal against the granting of this interlocutory relief on 6 August 2010 (Appeal No 272/10 under case number Civ 'A' 537/10)...,.. Notwithstanding the noting of this second appeal against the order granting execution pending appeal, the first respondent proceeded with the execution of the order, that is, ejectment, by serving a warrant of ejectment on the applicant despite protestations by the applicant. The applicant was due to be evicted on 12 August 2010. This prompted the applicant to approach this court on 11 August 2010, on a certificate of urgency, praying for the interim relief already alluded to.

This application is opposed.

Counsel for the first respondent raised a point in limine which may obviate the need to even deal with the merits of this application. In a nutshell, the point raised by counsel for the first respondent was that there could not be a valid notice of appeal against the granting of an order of execution pending appeal from the Magistrates' Court. In argument, counsel for the first respondent stated that such an appeal would be against an interlocutory order which is not final and definitive in nature. Counsel for the first respondent argued that there is, therefore, no second appeal pending before this court and that on this basis alone this application should fail.

Counsel for the applicant, in response, conceded to this fact, and, in my view, made a proper and informed concession.

The position of the law is now settled on that point. In the case of Gillespies Monumental Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 the point was made that the order granting leave to execute the ejectment order did not have a final and definitive effect on the main suit. The noting of an appeal against such an order would be invalid.

In the case of Peter Mungwambi v Ajanta Properties (Pvt) Ltd HH77-08 MAKARAU JP..., had this to say on the same point..., -

“..., an order for leave to execute pending appeal is an interlocutory order. It is not final as it is pending the appeal. As such, in my view, it cannot be appealed against.”

A similar view was expressed by MUTEMA J in the case of Marathon Group of Companies t/a Harrison and Hughson (Pvt) Ltd v Alstom Zimbabwe (Pvt) Ltd & Messenger of Court Harare HH152-10 in which the case of Gillespies Monumental Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 was cited with approval..., -

“The noting of an appeal by the applicant against the magistrate's order granting leave to execute pending appeal was invalid, and there was no basis for this application. The bringing of the application could be described as analogous to shutting of the stable door after the horse had bolted.”

Section 40(2) of the Magistrates' Court Act [Chapter 7:10] provides that appeals from the Magistrates' Court to this court shall be against any rule or order if such has the effect of a final  or definitive judgment. Put in another way, this means that where the rule or order appealed against from the Magistrates' Court is not final or definitive in nature no appeal can be made.

In casu, the order for leave to execute pending appeal made by the Magistrates' Court on 5 August 2010 is an interlocutory order. It is not decisive or definitive on the rights of the applicant. In essence, therefore, no valid appeal can be made against such an order. This would mean that the appeal made by the applicant to this court (the second appeal) on 6 August 2010, Appeal No. 272/10 Case No. Civ 'A' 537/10 is of no force and effect. The applicant can, therefore, not approach this court to seek an order to stay execution pending such an appeal. This would therefore mean that there is no basis for this application.

In the result I make the following order -

1. The point in limine raised by the first respondent is upheld.

I could not grant the relief sought as I queried how the applicant had appealed against the court a quo's order for leave to execute pending appeal which was clearly interlocutory and therefore not subject to appeal. South African Druggists Limited v Beecham Group PLC 1987 (4) SA 876 (T) and Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H).

Thwasile Ngwenya obtained a provisional order for stay of execution under Case No. HC815/08 on the strength of his appeal against the eviction order issued by the Magistrates Court. Ideally, that application should have been made in the Magistrates Court by virtue of the provisions of section 40(3) of the Magistrates Court Act [Chapter 7:10] which says -

It is trite that an appeal to the High Court, in terms of section 40 of the Magistrates' Court Act [Chapter 7:10], has the effect of suspending the order appealed against.

The applicant has not suggested that the respondent is guilty of any conduct as would entitle him to the relief that he seeks. Quite to the contrary, counsel for the applicant submitted that from the time the order of the magistrate was made, on 24 January 2013, both parties did not do anything at the mine.

This means that at the time the applicant made this application there was no basis, whatsoever, for seeking relief. Indeed, the founding affidavit does not even begin to suggest any perverse conduct on the part of the respondent as would entitle the applicant to approach the court as he has done.

Clearly, therefore, there was no reason for the applicant to make this application. The submissions of counsel for the applicant, which, in my view, are very vague, that the applicant approached the court because after receiving the notice of appeal, the respondent then started going to the mine, should be looked at in the context that it's the same counsel who conceded that the applicant only came to court seeking relief “out of abundance of caution.”

The respondent, in the heads of argument, did not seek to deal with the grounds of appeal as outlined by the appellant or rather the merits of the appeal. Instead, the respondent raised a single question of law, that is, whether or not the judgment of the court a quo rescinding the default judgment is appealable.

It is the respondent's contention that the order setting aside the default judgment is not a final judgment but merely incidental to the main dispute between the parties. The respondent relied on a number of authorities on the test to be applied in determining whether or not an order is interlocutory or incidental to the main application. See South Cape Corporation Pvt Ltd v Engineering Management Services (Pvt) Ltd 1977 (3) SA 534 (A); Hunt v Hunt 2000 (1) ZLR 105 (H).

I intend to dispose of this issue at this stage.

Section 39 of the Magistrates Court Act [Chapter 7:10] deals with the rescission and alteration of a judgment: Section 39 of the Magistrates Court Act [Chapter 7:10] provides as follows:

“39 Rescission and alteration of judgment

(1) In civil cases the court may -

a) Rescind or vary any judgment which was granted by it in the absence of the party against whom it was granted;

b) …,.

c) …,.”

It is important to note that in relation to appeals against decisions from the Magistrates Court regard is to be given to the provisions of section 40(2) of the Magistrates Court Act [Chapter 7:10] especially section 40(2)(b) of the Magistrates Court Act [Chapter 7:10]. Section 40(2)(b) of the Magistrates Court Act [Chapter 7:10] provides as follows:-

“40 Appeals

(1) …,.

(2) Subject to subsection (1) an appeal to the High Court shall be against -

(a) Any judgment of the nature described in section eighteen or thirty nine;

(b) Any rule or order made in a suit or proceeding referred to in section eighteen or thirty-nine and having the effect of a final and definitive judgment including an order as to costs.

(c) …,.”

It is an accepted general principle of law that an order rescinding a default judgment is not a final order and therefore would not be appealable unless it has the effect of a final or definitive judgment or such an order has been obtained on the grounds that the default judgment is invalid or such an order has been obtained by fraud or mistake. See Nyamuswa v Mukanya 1987 (2) ZLR 186 (S).

The question to be answered therefore is whether the order rescinding the default judgment by the court a quo is a final order or default judgment or it leaves the rights of the appellant unaffected and the issues in the main court application undisturbed.

In the case of Blue Rangers Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 (S) MALABA DJC explained the correct test to be applied in determining whether an order/ judgment is final and definitive or is interlocutory and not appealable. The learned DCJ had this to say…, -

“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.”

The learned DCJ continued at 379…., -

“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.”

It is trite law, therefore, that while an order setting aside a default judgment, generally, is not a final order and therefore not appealable there are other instances at law where such an order or judgment is deemed at law to be final or determines issues raised in the proceedings in a definitive way such that at least in respect of those specific issues it is final and therefore appealable. It is also recognised in our law that a judgment setting aside a default judgment is appealable where the rescission was granted on the grounds of fraud or mistake or where the judgment is invalid.

I now proceed to apply this principles to the facts of this matter.

It is common cause that in setting the rescission of the default judgment in the court a quo, the respondent, in his founding affidavit, alleged that he had not been served with the court application and the notice of the set down date hence his non-appearance on both 24 May 2011 and 6 June 2011. The respondent further alleged that the proof of service filed of record upon which the default judgment was premised was manufactured by the appellant which then enabled the appellant to snatch a judgment against the respondent. It is therefore clear that the respondent made allegations of fraud and impropriety against the appellant who is alleged to have fraudulently obtained the default judgment. The allegations of fraud against the appellant do not end there. The respondent alleges, further, that it even relates to the cause of action. The respondent, in the founding affidavit, denied ever signing the acknowledgement of debt and further alleged that the signature on the acknowledgement of debt purported to be his was not his. The sum total of the respondent's allegations in seeking the rescission of the default judgment is that to all intents and purposes the appellant forged an acknowledgement of debt, on the basis upon which he proceeded to fraudulently secure a default judgment against the respondent who was not even aware either of the existence of such an application and the set down date.

The question to consider is whether, as a fact, these allegations are true.

The court a quo seemed not to appreciate this important fact and proceeded to misdirect itself by glossing over such a fundamental allegation. The reasons for judgment by the court a quo do not show the findings made in this respect. Suffice to state that by rescinding the default judgment the court a quo should have found in the respondent's favour. This, in essence, means that the appellant cannot go back to the court a quo to continue with his claim unless the findings by the court a quo are set aside on appeal.

Both the appellant and the respondent filed detailed pleadings and heads of argument in the court a quo. It is clear that despite allegations of fraud made by the respondent, the respondent was being untruthful. It is also clear that on 24 May 2011 the respondent attended court. The record speaks for itself. It is the respondent who sought postponement to 1 June 2011. The finding of fact in this regard made by the court a quo is therefore incorrect and constitutes a misdirection. It is apparent that the respondent, even in the court a quo showed scant regard for the truth as it relates to his default. In his answering affidavit, the respondent, after being exposed by the appellant in the opposing affidavit, shifted ground and was now alleging that he was indeed served with both the court application and the notice of hearing for 24 May 2011. In fact, he confirmed attending court and being advised of the postponement to 1 June 2011 - at his behest. The respondent now gave another reason why he did not attend court, now on 1 June 2011. The respondent was heard to say after the initial hearing on 24 May 2011 and before 1 June 2011 he had discussions with the appellant who agreed to have the dispute resolved amicably (whatever that means) and therefore decided not to attend court on 1 June 2011. Needless to say this is at variance with the respondent's explicit pronouncements in the founding affidavit and was further disputed by the appellant who sought, and got, leave to file supplementary affidavit on account of the respondent's inconsistent explanation.

The court a quo misdirected itself in making a finding that the respondent has explained his default, which reasons, according to the court a quo, showed the respondent's bona fides in the application for rescission of judgment. The truth of the matter is that the respondent simply lied and proffered no tangible explanation for his default.

The court a quo also misdirected itself in failing to appreciate that the respondent was making an allegation that the default judgment was obtained through fraudulent means by the appellant. Again, as a fact, this is incorrect. Most importantly, this finding disposes of the argument raised in this court by the respondent that the order granted by the court a quo is not appealable. It is appealable because the respondent alleged, and the court a quo seemed to accept, that the default judgment was obtained through fraudulent means….,.

In conclusion, the appellant's objection as to whether the order of the court a quo is appealable or not is devoid of any merit and is dismissed.

It is common cause that on 3 March 2009 the applicant noted an appeal against CHATUKUTA J's order of 26 February 2009 in case number HC612/09. This was done without first obtaining leave to appeal. The first respondent deemed that appeal defective and instructed the third respondent to execute the order of 26 February 2009. When the applicant lodged an urgent chamber application before MAKARAU JP…, to stay the execution that effort came to nought on the ground that the order was provisional and as such leave to appeal was required.

The applicant did not challenge the latter judgment.

In the current application for stay the applicant's counsel passionately argued that the two judgments by CHATUKUTA J and MAKARAU JP…, were erroneously decided. He relied on the ratio in Nyasha Chikafu v Dodhill (Pvt) Ltd & 2 Ors SC28-09 whose facts seem to fall on all fours with the applicant's case wherein CHIDYAUSIKU CJ…, decided that:

“…, a proper reading of the judgment of the court a quo reveals that it interdicted Chikafu from occupying the farm until Dodhill had been removed from the farm in terms of the Act. The judgment is not interlocutory it is definitive in which case Chikafu is entitled to appeal as of right…,. Although the learned Judge has labelled his order as a provisional order, the judgment has all the hallmarks of a final order.”

Whether CHATUKUTA J's judgment was interlocutory or final is now neither here nor there. On 16 October 2009, the Registrar of the Supreme Court wrote to the applicant's legal practitioners, Antonio Mlotshwa and Company, in this vein:

“Civil Appeal: Tafirei Nyikadzino v John Cameron Asher & Another

I refer to my letter dated 31 August 2009 in which you were called upon to file Heads of Argument. To date, no Heads of Argument have been received. The appeal is therefore deemed to have been abandoned and is accordingly dismissed. By copy of this letter, the records of appeal are being returned to court of origin to enable the respondent to execute judgement appealed against.”

Two other issues were the subject of much debate. 

These were:

(i) Whether the requirements on an interdict were met; and

(ii) Whether the appellant could appeal against the interim order granted in favour of the respondents regard being had to the provisions of Article 9 of the Model Law. 

In the course of the preparation of this judgment these issues exercised my mind for quite some time.

This is an appeal against the whole judgment of the High Court dated 9 October 2013. At the hearing of the matter it was the view of the court that the appeal lacked merit and it was dismissed with costs.  We advised that the full reasons for our decision would follow.

These are they.

The appeal was  pursuant to an order granted by the High Court following the filing of  an urgent chamber application in which the NJZ Resources (HK) Limited (applicant in the court a quo and hereafter referred to as NJZ) sought an order that certain items of machinery or equipment and motor vehicles which were in the possession of Mine Mills Trading (Private) Limited (respondents in the court a quo and hereafter referred to as Mine Mills Trading) be delivered to the Deputy Sheriff for safekeeping pending the determination of a dispute between the parties.

The background to this matter may be summarised as follows.

Mine Mills Trading is a limited liability company incorporated in Zimbabwe. Its address for service is No. 206 Teresa Close, Groombridge, Harare. The second and third respondents are both Directors of the company. NJZ is a foreign limited liability company incorporated in accordance with the laws of Hong Kong. Its address for service is 7 Lawson Avenue, Milton Park, Harare Zimbabwe.

In January 2010, and in Hong Kong, the parties entered into an agreement whereby NJZ sold and delivered machinery and equipment to Mine Mills Trading as well as providing short term bridging finance loan. The total indebtedness of Mine Mills Trading to NJZ was in the sum of US$1,558,068=53. It was an agreed term of their contract that this amount was to be repaid in twelve equal monthly instalments. Mine Mills Trading was further given a grace period of eight months before the payments became due. It was alleged before the court a quo that Mine Mills Trading had failed or neglected to make the payments in accordance with their agreement. NJZ, thereafter, instituted proceedings in the High Court, in case HC2111/13, for the recovery of the machinery or equipment and the motor vehicles from Mine Mills Trading. 

The matter is pending before the High Court.

NJZ also instituted an urgent chamber application before the High Court for an order to secure the machinery or equipment and the motor vehicles from wear and tear and the possibility of an accident. At the hearing of the urgent application, the court a quo gave two judgments. The first judgment was issued by the court a quo on 29 May 2013 and related to a number of preliminary points which had been raised by Mine Mills Trading. Following the judgment of the court a quo, dismissing the preliminary points, the matter was set down for argument on the merits. Judgement on the merits was handed down on 9 October 2013. It provided as follows:

“1. That pending the final determination of this matter, the respondents shall deliver all the machinery or equipment set out in annexure “A” to applicant's founding affidavit, and the motor vehicles ( i.e. black Isuzu, white Isuzu and a Lupo) to the Deputy Sheriff of Zimbabwe, Harare within forty eight (48) hours of service of this Order, failing which the Sheriff of Zimbabwe or his lawful Deputy, with the assistance of the Commissioner General of Police, and each and every member of the Zimbabwe Republic Police shall be authorised and empowered and ordered  to give effect to this order.

2. That the machinery or equipment and the motor vehicles specified in para (1) above shall be parked or stored at the premises of Ruby Auctions (Harare) or the Vehicle Inspection Depot, Harare under the control or supervision of the Sheriff of Zimbabwe or his lawful Deputy, until the final determination of this case.”

Mine Mills Trading filed a Notice of Appeal on 11 October 2013 against the whole judgment that was granted by the High Court on 9 October 2013. Mine Mills Trading set out eight (8) grounds of appeal. The first five grounds related to the preliminary points that were determined by the court a quo on 29 May 2013.

It was submitted by counsel for the appellant that there was no requirement for him to seek leave from the court a quo to appeal against the interlocutory order.

He submitted, firstly, that the judgment of 29 May 2013 was a mere ruling which was not appealable even with leave. He relied on the case of Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1. He opined that on the basis of that judgment he could appeal against both the interlocutory ruling and the judgment on the merits without seeking leave of the court a quo.

It was, however, the unanimous view of the Court that the judgment of 29 May 2013 was not a ruling but a judgment and therefore could only be appealed against provided Mine Mills Trading complied with section 43 of the High Court Act [Chapter 7:06]. Section 43(2) of the High Court Act [Chapter 7:06] which provides that:

“(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, except in the following cases -

(i) Where the liberty of the subject or 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.”

At the hearing of the appeal, and pursuant to his heads of argument, counsel for the first respondent…, raised the point in limine that the subpoena issued by the court a quo was purely administrative and interlocutory in nature.

He cited several English cases in support of this position and submitted that since no leave to appeal had been obtained, as required by section 11 of the Fiscal Appeal Court Act [Chapter 23:05] as read with section 43(2)(d) of the High Court Act [Chapter 7:06], the present appeal was improperly before the Court. It should therefore be struck off the roll with costs.

Counsel for the appellants countered that the judgment of the court a quo was final and definitive in nature, and, as such, did not require leave to appeal. He submitted that the dispute as to compliance with the contested subpoena was res judicata and incapable of being revisited by that court. The present dispute between the appellants and the first respondent was divorced from the main matter between the first and second respondents. The preliminary point should therefore be dismissed with costs.

After having adjourned to consider these submissions, the Court took the view that the preliminary issue raised was of sufficient procedural importance to merit further and fuller written argument focusing on relevant statute law and decided cases on leave to appeal in England and South Africa. Counsel for the appellants and the first respondent were accordingly directed to file supplementary heads of argument on the subject within the following four weeks. Judgment on the preliminary point taken by the first respondent was reserved.

Applicable Statute Law

As intimated at the outset, section 6 of the Fiscal Appeal Court Act [Chapter 23:05] regulates the summoning and privileges of witnesses and the production of documents:

“(1) The Court shall have power to summon witnesses, to call for the production of and grant inspection of books and documents and to examine witnesses on oath.

(2) A subpoena for the attendance of witnesses or the production of books or documents shall be signed by the Registrar of the Court and served in the same manner as if it were a subpoena for the attendance of a witness at a civil trial in a Magistrates' Court.

(3) Any person subpoenaed to give evidence or to produce any book or document or giving evidence before the Court shall be entitled to the same privileges and immunities as if he were subpoenaed to attend or were giving evidence at a trial in the High Court.”

Section 11 of the Fiscal Appeal Court Act [Chapter 23:05] provides for appeals from decisions of the Fiscal Appeal Court to the Supreme Court as follows:

“An appeal from any decision of the Court shall lie to the Supreme Court in accordance with the law and Rules of Court for the time being governing appeals from the High Court to the Supreme Court in civil cases.”

Section 43 of the High Court Act [Chapter 7:06] governs appeals from that court to this Court in civil cases. With specific reference to interlocutory matters, subsection (2)(d) of section 43 of the High Court Act [Chapter 7:06] stipulates that:

“(2) No appeal shall lie -

(a)…,.;

(b)…,.;

(c)…,.;

(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.”

Also relevant for present purposes is section 6 of the Supreme Court Act [Chapter 7:13]:

“In any matter relating to records, practice and procedure for which no special provision is contained in this Act or in Rules of Court, the matter shall be dealt with by the Supreme Court or a judge thereof as nearly as may be in conformity with the law and practice for the time being observed in England by the Court of Appeal.”

In South Africa, the position on appellate procedure at the turn of the last century was regulated by section 22 of the Transvaal Proclamation No.14 of 1902 which gave a right of appeal to the Supreme Court of Transvaal from any final order granted or judgment pronounced by a judge siting in chambers. This was repeated in Rule 4(a) of the Rules of the Supreme Court, but Rule 91 provided that there could be no appeal, even with leave, from any interlocutory order granted by a judge in chambers.

See Pretoria Racing Club v Van Pietersen 1907 TS 687…,.

The above position was later modified in the South African Supreme Court Act No.59 of 1959. In terms of section 20(1)(a) as read with section 20(2)(b), in relation to appeals from a single judge of any Division to the full court of that Division, an interlocutory order was not subject to appeal save with the leave of the court which gave the order. As regards any final order made by a single judge, no leave to appeal was required.

In contrast, by virtue of section 21(2)(a) of the Act, all appeals to the Appellate Division from any decision given by any Divisional Court required the leave of that court or, if such leave was refused, the leave of the Appellate Division.

Therefore, it was not necessary to draw any distinction between interlocutory and final orders appealable to the Appellate Division insofar as leave to appeal was concerned.

The advent of the Appeals Amendment Act No.105 of 1982 effectively obliterated the distinction for all appeals, whether lodged with a Divisional Court or with the Appellate Division. Sections 7 and 8 of the 1982 Act substantially replaced sections 20 and 21 of the 1959 Act so as to render all appeals subject either to the leave of the court whose judgment or order is appealed against or to the leave of the Appellate Court. In effect, “all judgments and orders, whether final in effect or not, are now appealable with leave.”

See Priday t/a Pride Paving v Rubin 1992 (4) SA 541 (C)…,.

In England, the position that pertains in respect of leave to appeal is markedly different from that which obtains in South Africa.

Before 1981, section 31(1)(i) of the Supreme Court of Judicature (Consolidation) Act 1925 provided that no appeal would lie from any interlocutory order or judgment made or given by a judge without the leave of the judge or of the Court of Appeal. The 1925 Act, together with other enactments relating to the Supreme Court, was amended and consolidated by the Supreme Court Act 1981 [Chapter 54]. In terms of section 18(1)(h) of that Act, no appeal lies to the Court of Appeal from any interlocutory order or judgment made or given by the High Court or any other court or tribunal, without the leave of the court or tribunal in question or of the Court of Appeal – except in specified cases.

Two of the exceptions to the general rule are virtually identical to the exceptions enumerated in section 43(2)(d) of our High Court Act.

Relevant Case Authorities

In South Africa, as I have already noted, there was initially no right of appeal against interlocutory orders; that right being confined to appeals against final orders or judgments only. In Pretoria Racing Club v Van Pietersen 1907 TS 687, SMITH J observed…, that it was not possible to lay down principles which will differentiate the one class from the other under every state of facts and that the court must decide in each case what the nature of a particular order is.

At 694-695, the learned judge noted that the distinction between interlocutory and final orders, as giving a right of appeal, was recognised in both England and South Africa. However, at 696, he opined as follows:

“It must be borne in mind, in considering the view adopted by the English courts, that the distinction is of importance under the English Rules with regard to the time within which an appeal should be brought, and not, as here, whether an appeal lies at all. By adopting the same construction here as has been placed on the words by the English courts, we should materially restrict the number of orders from which an appeal could be brought, and the result might be to create serious inconvenience.”

Relying on this dictum, counsel for the first respondent argues that the South African emphasis on the finality or otherwise of an order was necessitated so as to avoid the incidence of irremediable loss and the injustice that could arise from a total denial of the right to appeal. The position in England is different because the right of appeal against interlocutory orders, albeit with leave, was never completely denied.

Accordingly, he submits that since the wording of section 18(1)(h) of the English Supreme Court Act 1981 is the same as that of its predecessor as well as section 43(2) of our High Court Act, it is the English position that should obtain in this jurisdiction. In this regard, he places particular reliance on the decision of the Court of Appeal in Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA).

The facts of that case are as follows.

The plaintiff, in an action in the County Court, sued the police for damages for assault in the course of the dispersal of a three-day “pop” festival. Before the trial, he sought by way of a witness summons, issued by the Registrar under the County Court Rules, the production and exhibition by Independent Television News Ltd of all film and video, both transmitted to the public and untransmitted, taken by its camera crews of the dispersal. The summons was defective and invalid, but, during the trial, the judge directed that a fresh summons be issued requiring Independent Television News Ltd to produce all the film negative of the events at the festival. Independent Television News Ltd, through its Director, objected to produce the untransmitted film and asked for leave to appeal. The judge refused to alter the order and refused leave to appeal. He then concluded the trial in favour of the plaintiff - without having seen the untransmitted film. On his direction after the trial, the Registrar issued a summons under the County Court Act requiring Independent Television News Ltd to show cause why a fine should not be imposed for not obeying the order.

On an ex parte application by Independent Television News Ltd asking that the order be set aside, the Court of Appeal treated the proceedings as an application for leave to appeal from the judge's order. The court granted leave to appeal and then allowed the appeal. It was held that the order to produce all film negative taken during the three days of the festival was so wide as to be oppressive and should therefore be set aside. The only point of dissent among the learned judges was whether or not the film was a “document” for the purposes of a subpoena duces tecum within the prescribed procedure for such a summons.

LORD DENNING MR perceived that there were two points to be considered, to wit;

(i) The jurisdiction of the County Court to order the production of the film and show it; and, if the court could order it,

(ii) What were the principles it should have applied.

On the jurisdictional point, the learned judge held that both the High Court and the County Court had inherent jurisdiction to order or decline and refuse the production of films and the necessary apparatus. He proceeded to opine, at 32H-33B, as follows:

“If the judge makes an order with which the witness is aggrieved, the witness will have an appeal to this court. Although he is not a party to the suit, he is a person who is aggrieved by the order: and he is entitled, by leave, to appeal against it….,. He must obtain leave either from the judge or from this court: but he cannot appeal without such leave: see section 31(1)(i) of the Supreme Court of Judicature (Consolidation) Act 1925.

…,. In my opinion, leave is required from the County Court judge or this court for appeals from interlocutory orders - even on a point of law.”

ORR LJ postulated that the first question on appeal was whether any appeal lay in law against the judge's direction that a fresh summons duces tecum should issue.

He answered the question, at 35G-H, as follows:

“[In] my judgment, it is clear that the remedy of a person served with a witness summons or a summons duces tecum under Order 20, r. 8, of the County Court Rules, the issue of which, in my judgment, is obligatory on application duly made and is an administrative and not a judicial act, is to apply to set it aside…, and not by way of appeal; there being, if the court should refuse to set it aside, a right of appeal arising in the proceedings or matter constituted by the summons itself.”

SCARMN LJ also addressed the nature of a summons duces tecum under the County Court Rules and observed as follows, at 39E-40A, 40F-G and 42H-43A:

“I think it is clear that the County Court Rule, upon its true construction, requires of the Registrar an administrative, not a judicial act….,. The County Court Rule (Ord. 20, r. 8) says that the Registrar shall issue the summons: it does not require of him an order made judicially, but lays on him a duty to be performed in the office upon production of certain specified documents. This is a classic form of administrative duty.”

“In my view, therefore, the principle is the same in the County Court and High Court. The subpoena or summons issues as of course without the need for any order of the court: but the witness or person served has the right to apply to set it aside.”

“The law, as it now stands, does not enable the court to refuse to issue a witness summons (or subpoena) for the production of documents upon due application. The remedy available to the person served is to move to set the summons aside.”

Counsel for the first respondent…, anchors the bulk of his argument in limine on what he perceives to be the gist of the above dicta.

He contends that the judgment of the court a quo was purely interlocutory and therefore necessitated the leave of that court to appeal against it.

Counsel for the appellants takes the view that the first respondent's reliance on Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA) is entirely misplaced for the following reasons.

(i) Firstly, the question of the nature of the order on appeal was not argued in that case and the remarks of LORD DENNING on the need for leave to appeal are obiter. That issue was not one of the two issues placed before the court and does not form part of the ratio of the court's judgment.

Moreover, both ORR and SCARMAN LJJ simply conclude that the order in question is appealable and do not even suggest that there is need for leave to appeal.

(ii) Secondly, the judgment does not correctly reflect our law in that it fails to consider that, insofar as the subpoenaed witness is concerned, the question of whether he has to give evidence is the only issue that arises between the witness and the party that has called him. Once that question is resolved, the dispute between those parties comes to an end.

Instead of the dicta propounded in Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA), counsel for the appellants commends to this Court the approach enunciated by our courts in Jesse v Chioza 1996 (1) ZLR 341 (SC) and in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC).

In Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC), the High Court, in a civil case, took the view that there were material disputes of fact which could best be resolved by hearing oral evidence and it made an order referring the factual disputes to trial. The applicant appealed against the order. The respondent argued that the order being appealed against was effectively an interlocutory order which the applicant was not entitled to appeal without first obtaining the leave of the court to do so. When the matter came before the Supreme Court, the appeal was struck off the roll without argument being heard. The applicant then instituted a chamber application before the High Court for leave to appeal. The court, per DEVITTIE J, dismissed the application and later furnished a fully reasoned judgment to address what the learned judge perceived to be an interesting question, i.e. “the utility of the distinction between 'rulings' and 'simple interlocutory orders' in determining an application for leave to appeal.”

The decision in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC) may be garnered from the headnote. It was held that a distinction is to be drawn between interlocutory orders having final effect, which orders are appealable without leave, and those which do not have final effect, in the sense that they do not irreparably preclude some of the relief which might be granted in the main action. The latter are referred to as simple or purely interlocutory orders. Such orders are further sub-divided into those that are appealable before the completion of the trial with leave of the court and those that are mere procedural rulings which are not appealable - even with leave of the court.

The main reasons for disallowing appeals in respect of procedural rulings are that, if they were to be appealable, this would lead to a multitude of expensive and inconvenient subsidiary appeals; and that no hardship is caused to the aggrieved party by disallowing an appeal, because he can raise the issue of the erroneous ruling on appeal after completion of trial. It was further observed that precluding an appeal in respect of a simple interlocutory order that was a procedural ruling could lead to injustice, as in some cases to allow such an appeal might result in a more expeditious and less expensive determination of the dispute between the parties. A better approach would be to decide whether or not the balance of convenience and expense lies in favour of or against the granting of leave to appeal. The fact that the order can be classified as a ruling should be merely one factor to be taken into account in deciding this issue.

In the event, it was held that the order in question was an interlocutory order as it did not have final effect. It was a procedural ruling that was not appealable - even with leave.

Counsel for the first respondent criticises the reasoning of the court in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC) on the basis that some of its dicta are seemingly contradictory. He also argues that the views expressed in the judgment are obiter in that, in the application for leave before it, the court simply had to address the requirements for leave to appeal, without having to delve into the question as to the necessity of obtaining such leave. In any event, so he argues, the court relied upon case authorities which had interpreted outdated South African statutes that had been replaced.

Counsel for the appellants, on the other hand, fully supports the reasoning in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC) as being in accord with the decision in Pretoria Racing Club v Van Pietersen 1907 TS 687 and consistent with established principle, viz. that interlocutory orders that are final in nature or effect are appealable without leave.

With respect to the scope and application of this principle, the decision of this court in Jesse v Chioza 1996 (1) ZLR 341 (SC) is of particular significance.

In that case, the respondent, pursuant to an urgent chamber application in the High Court, obtained a provisional order against the appellant. The final order sought was to interdict the appellant and his auctioneers from selling, disposing or dealing with the movable property in dispute. On the return day, the court found that there were a number of issues that it was unable to determine without the reception of viva voce evidence. The Court accordingly ordered, inter alia, that the matter be referred to trial. In relation to that part of the order, the question that arose, on appeal, was whether or not it was an order or judgment that was appealable in terms of section 43(1) of the High Court Act. After reviewing the relevant case authorities, GUBBAY CJ crystallised the determinant test at 344F-345A:

“The question is whether the 'order' referring the matter to trial for the hearing of oral evidence amounts to a 'judgment' (defined in s 2 of the Act to include 'a decision or order'), and is decisive or definitive of the rights of the parties and has the effect of disposing of the whole, or at least a portion, of the relief claimed by one of them….,. Or is it a mere ruling which is a direction as to the manner in which the case should proceed?”

At 346 E-F, the learned Chief Justice answered the question earlier posed as follows:

“[It] is clear that the directive given by SANDURA JP was not a judgment. It did not decide the merits. It was merely a procedural ruling that oral evidence was necessary before the factual disputes could be determined. Consequently, and by virtue of s 43(1) of the Act, it was not appealable.”

The decision of this court in ZFC Ltd v Geza 1998 (1) ZLR 137 (S) is also very pertinent.

After the holding of disciplinary proceedings, an employee had been dismissed by the appellant, her employer. On review, the High Court found that there were certain irregularities in the disciplinary proceedings and ordered that the matter be remitted for a re-hearing. The appellant, who was dissatisfied with this order as the respondent had sought an order that her company reinstate her or pay damages, a remedy which was one that could only be obtained on appeal and not on review, then appealed to the Supreme Court. At the hearing of the matter, the point was raised whether or not the order granted by the High Court was an interlocutory order. Applying the dicta cited above from Jesse v Chioza 1996 (1) ZLR 341 (SC), McNALLY JA dealt with the question, at 144A-E, as follows:

“There is a difference, of course, between referring a matter to trial, and remitting a matter for rehearing. In the former case, there is, in effect, a decision not to decide. The matter was unresolved when it came before the court, and it remained unresolved. In the latter case, the matter was resolved when it came before the judge. Miss Geza had been dismissed. That dismissal has now, albeit not in so many words, been set aside.

In my judgment, this was not 'a mere ruling as to the manner in which the case should proceed.' The case had been finalised. Miss Geza had been dismissed and had not appealed beyond the General Manager. The decision of the learned judge reversed that situation. It re-opened a matter which was closed. Part of the relief sought, that her dismissal be set aside, was granted….,.

Accordingly, I accept that the matter was properly before us by way of appeal without leave.”

The critical criterion of the finality or otherwise of a given order or judgment, in determining the need for leave to appeal, was also reaffirmed and applied by MALABA DCJ in Blue Rangers Estates (Pvt) Ltd v Muduviri & Another 2009 (1) ZLR 368 (S)…,; and, more recently, by CHIDYAUSIKU CJ in Minister of Higher and Tertiary Education v BMA Fasteners (Pvt) Ltd & Another SC33-17..,.

Analysis of Case Authorities

Before analysing the case authorities on the subject, it is necessary to address the import of section 6 of our Supreme Court Act.

Counsel for the first respondent submits that this provision, in its express reliance on the prevailing law and practice observed in England by the Court of Appeal, necessitates that it is English Law that we must turn to for the determination of the procedural question presently under review.

Counsel for the appellants takes a different view.

He contends that the practice observed in England is only to be resorted to if there is no adequate provision on the matter in issue in the Supreme Court Act or the Rules made thereunder. He further argues that the point at hand is one which is governed by the High Court Act and not the Supreme Court Act. Since section 43 of High Court Act makes specific provision on the subject, there is no lacuna in our law. Therefore, so he submits, the English position is of no application and there can be no justification for resorting to the practice of the Court of Appeal in England.

I think that there is merit in both positions.

There obviously is no lacuna in our law relative to the practice to be adopted on the question of leave to appeal against interlocutory orders or judgments. Thus, section 6 of the Supreme Court Act [Chapter 7:13] cannot be invoked to dictate slavish adherence to English practice in resolving the question at hand. Nevertheless, I do not accept that prevailing English practice and precedent can be dismissed as being entirely irrelevant to the question. Given the self-evident similarities between the governing statutory provisions in both jurisdictions, there can be no quarrel with the proposition that English case authorities are highly persuasive in any meaningful analysis of our procedural law.

Conversely, notwithstanding our affinity with English rather than South African statute law governing civil procedure, I do not perceive any cogent reason for disregarding the South African authorities on the subject, inasmuch as the relevant principles to be applied are not fundamentally dissimilar as between those two jurisdictions.

One of those principles, as articulated in Pretoria Racing Club v Van Pietersen 1907 TS 687, is that it is not invariably possible to differentiate between purely interlocutory orders and final orders. The court must decide in each case what the specific nature or effect of the order is. The erstwhile tendency in South Africa to lean in favour of findings of finality, so as to avoid potential injustice or inconvenience, did not negate the need to examine the nature and effect of the order in question. The need to do so was also recognised and affirmed in England, in the earlier decision of the Court of Appeal in Salaman v Warner [1891] 1 QB 734 per ESHER and FRY LJJ (cited in Pretoria Racing Club v Van Pietersen 1907 TS 687…,.).

In my view, the finality or otherwise of an order or judgment still remains the central and ineluctable consideration in determining whether the order or judgment is appealable with or without leave.

Turning to Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA), it is clear that the nature of the contested order was not argued before or considered by the Court of Appeal. Indeed, the court granted leave to appeal without deciding whether the order appealed against was final or merely interlocutory. The questions to be decided by the court and the rationes decidendi enunciated in the individual opinions of the court were entirely unrelated to that issue.

Thus, the dicta propounded by LORD DENNING in that regard were undoubtedly obiter.

As for the summons or subpoena in question, both ORR and SCARMAN LJJ took the position that its issuance was an administrative and not a judicial act. Both learned judges also agreed that the aggrieved party should first apply to the issuing court to set it aside. But neither postulated that leave to appeal was required against any decision of that court refusing to set the subpoena aside.

Apart from these considerations, what emerges clearly from Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA) is that under the applicable County Court Rules a subpoena duces tecum is issued not by the court but by its Registrar, who is under an obligation to issue it upon application being made, as a matter of course and without the need for any order of the court.

The critical distinction in the case before us is that it is not the Registrar of the court, but the court itself, acting in terms of section 6 of the Fiscal Appeal Court Act [Chapter 23:05], which exercises the power to order or direct its Registrar to issue the subpoena. In this instance, the issuance of the subpoena is not a purely administrative but quasi-judicial act.

In Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC), the principal issue for determination was the distinction between simple interlocutory orders, which are appealable with leave, and mere procedural rulings, which are not appealable at all - even with leave.

The dicta of the learned judge relative to interlocutory orders having final effect were not central to his decision and were, therefore, clearly obiter. However, I am unable to discern any contradiction in those dicta and I consider them to be very relevant to the arguments in casu. I also regard the court's observations pertaining to the balance of convenience and expense, in deciding whether or not to grant leave to appeal, as being equally apposite to the question as to whether or not leave to appeal is necessary.

In any event, the court's analysis of the relevant case law aptly elucidates the established principle that interlocutory orders which are final in nature or effect are appealable without leave.

Jesse v Chioza 1996 (1) ZLR 341 (SC) was focused on section 43(1) of the High Court Act, i.e. the right of appeal rather than leave to appeal. Nevertheless, the determinant test expounded in that case is equally applicable to the interpretation of section 43(2)(d) of the High Court Act. That test is whether the order or judgment in question is decisive or definitive of the rights of the parties and has the effect of disposing of the whole or portion of the relief claimed by one of them.

This principle was reaffirmed and applied in ZFC Ltd v Geza 1998 (1) ZLR 137 (S), where part of the relief sought by the respondent, i.e. the reversal of her dismissal from employment, had been granted by the court a quo. The appellate court found that this aspect had been resolved and finalised by the lower court. That being so, the right of appeal against its decision arose without the need for leave to appeal.

Disposition

In the instant case, the court a quo ordered its Registrar to issue the impugned subpoena. Thereafter, on application having been made to set it aside, the court delved fully into the substantive merits of the application and delivered a very detailed judgment dismissing the application.

In my view, the court's judgment had a decisive and definitive effect on the rights of the parties and disposed of the relief claimed by both parties, i.e. either the enforcement or the setting aside of the subpoena. It effectively disposed of and finalised the only dispute between the appellants and the first respondent. The subpoena issued by the court, through its Registrar, had to be carried into effect, compelling the second appellant to appear in court to testify and produce the requisite documents.

In the specific circumstances of this case, it is clear that the judgment of the court a quo cannot be revisited by that court at any stage. The appellants can only object, if so inclined, after they have complied with that judgment. Insofar as that court is concerned, its decision on the validity or enforceability of the subpoena is res judicata. Moreover, there would be little point in the appellants mounting an appeal at the end of the main case in the court below. It would undoubtedly be tantamount to a brutun fulmen. Finally, having regard to the time and expense that would be involved in complying with the terms of the subpoena, as was recognised by the court a quo itself, it seems to me that the balance of convenience tilts in favour of the appellants being allowed to appeal without leave on the particular facts of this case.

On 28 July 2014, after hearing counsel and having gone through the papers filed of record, we gave the following order:

“IT IS ORDERED THAT:

The matter be and is hereby struck off the roll. Costs will follow the cause.”

Upon giving the above order, we indicated that reasons for the order were to follow. These are they.

On 4 July 2013, the appellant filed, in the court a quo, a Chamber application for leave to execute and institute proceedings against the first respondent. In that application, the appellant sought the following relief from the court a quo:

“IT IS ORDERED THAT:

1. That the applicant be and is hereby granted leave to execute against the first respondent's attached 800 harrows.

2. The applicant be and is hereby granted leave to litigate and issue out any court action or process against the first respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, S.I.74/99, and any such surcharge imposed for the period starting from August 2011 to current.

3. That the first respondent and the second respondent, Christopher Maswi, personally, de bonis propriis, pay costs of this application at the attorney-client scale, jointly and severally, the one paying the other to be absolved.”

The first respondent opposed the application launched by the appellant in the proceedings a quo and in so doing the first respondent raised two preliminary points against the appellant;

(i) The first point in limine was that the appellant had used the wrong form of the application and therefore there was non-compliance with the Rules of the Court a quo.

(ii) The second issue raised was that the person who deposed the founding affidavit to the Chamber application lacked the requisite authority to institute proceedings in the court a quo on behalf of the appellant.

The learned judge a quo agreed with the first respondent that the Chamber application that had been filed was defective for want of compliance with the Rules of the High Court. The learned judge a quo also made a finding to the effect that the person who had deposed the appellant's founding affidavit lacked the requisite authority to do so on behalf of the appellant. The learned judge proceeded to dismiss the application without delving into the merits of the matter.

Aggrieved by the decision of the learned judge a quo to dismiss the application, the appellant noted its appeal to this Court on grounds which I summarise as follows –

1. That the court a quo had erred by holding that the Chamber application was fatally defective for want of compliance with the correct form, when such finding is not supported by the High Court Rules, 1971;

2. The court a quo erred by holding that there was no proof before the court to establish that the deponent of the founding affidavit was authorised to depose the affidavit by the Minister of Higher and Tertiary Education. That finding was not supported by the evidence before the court;

3. The court a quo erred by holding that it was the deponent of the founding affidavit who was litigating on behalf of the Minister of Higher and Tertiary Education when in fact the applicant on the papers is the Minister as provided in section 54(4) of the Manpower Planning and Development Act [Chapter 28:02];

4. The court a quo erred by holding that the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised. That finding is contrary to the provisions of section 62 of the Manpower Planning and Development Act [Chapter 28:02].

The relief which the appellant sought from this Court was the setting aside of the order of the court a quo and the substitution thereof with the following:

“1. That the points in limine raised by the first and second respondents are dismissed with costs.

2. The parties must proceed to address the Court on the merits of the Chamber application.

3. The first and second respondents to pay the costs of suit in this appeal.”

In heads of argument filed of record by the first respondent, the first respondent took a preliminary point that the appellant had not sought leave of the court a quo to appeal against the decision of the court a quo.

The first respondent's stance was that since the decision of the court a quo was an interlocutory order, such an order could only be appealed against with leave of the court a quo or with leave of a judge of this Court, that is, in the event of the court a quo refusing to grant the appellant such leave. The first respondent's submission was premised on the provisions of section 43 of the High Court Act [Chapter 7:06] (hereinafter referred to as “the Act”).

This submission by counsel for the first respondent cannot but be correct, given the explicit language of section 43(2)(d) of the High Court Act [Chapter 7:06], which provides that:

“43 Right of appeal from High Court in civil cases

(1)…,.

(2) No appeal shall lie -

(a) - (c)…,.

(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.”

Quite clearly, section 43 of the High Court Act [Chapter 7:06] provides for the need to obtain the leave of the court a quo to appeal against an interlocutory order. Section 43 of the High Court Act [Chapter 7:06] admits of no other interpretation.

Counsel for the appellant, in his argument, sought to convince the Court that there was no need to seek leave because the matter it brought before the court a quo was not for an interlocutory order but a culmination of other proceedings. Therefore, there was no need for it to return to court seeking the same relief.

We were not persuaded by this submission. Counsel's submission in this regard is not consistent with the clear meaning of section 43 of the High Court Act [Chapter 7:06].

What constitutes an interlocutory order was enunciated in the case of Blue Rangers Estates (Pvt) Ltd v Muduviri and Anor 2009 (1) ZLR 368 (S). In that case, malaba dcj explained the correct test to be applied in determining whether an order/judgment is final and definitive or is interlocutory and not appealable without leave. The learned deputy chief justice had this to say at 376G:

“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.”…,.

The learned deputy chief justice continued at 379:

“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.”…,.

Applying the above legal principle to the order that was awarded by the court a quo, the following conclusion is inevitable. The learned judge in the court a quo dismissed the appellant's application. The effect of the order was that execution could not proceed. Interdicting one action does not finally determine the issues or cause of action between parties. The issues between the parties could only be determined by the Appeal Court.

Turning to paragraph 2 of the order which the appellant was seeking in the court a quo, I am satisfied that it was interlocutory in nature and its dismissal did not bring finality to the matter.

The appellant ought to have sought leave from the court a quo to appeal against its judgment.

In this regard, the remarks of corbett ja in the case of South Cape Corp. v Engineering Management Services 1977 (3) SA 534 (AD)…, are pertinent. He had this to say at 551G:

“Next, the question is whether an order for leave to execute is a simple interlocutory order or an interlocutory order having a final and definitive effect on the main action. If the test laid down in the Pretoria Garrison Institutes case (Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 [AD]) be applied, then, in my view, it must be held to be a simple interlocutory order. It does not dispose of any issue or any portion of the issue in the main suit, nor does it irreparably anticipate or preclude any of the relief which might be given at the hearing (taking the 'hearing' in such a case to be a hearing of the appeal). It leaves the Court of Appeal free to make whatsoever decision it deems fit in the main action.”

This passage supports my reasoning that the order of the court a quo was interlocutory in nature.

The term interlocutory refers to all orders pronounced by the court upon matters incidental to the main dispute, preparatory to, or during the process of, the litigation.

See JONES and BUCKLE, The Civil Practice of the Magistrates Court in South Africa, Vol. 1, 8^th edition…, , quoted with approval in Gillespies Monumental Works (Pvt) Ltd v Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 (H)…,.

Interlocutory matters are pronouncements on matters incidental to the main dispute and ordinarily would not have a final and definitive effect on the main cause….,.

See Jesse v Chioza 1996 (1) ZLR 341 (S) 344G; Dobrock Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd and Another 2008 (2) ZLR 153 (S).

In its papers, and at the hearing, the applicants' case, in summary, was this.

The respondent's appeal was invalid. The provisional order by NDEWERE J was an interlocutory order which was unappealable without leave. No leave had been sought, let alone obtained. Since no result flows from an invalid process, the respondent could not possibly proceed with execution. JUSTICE NDEWERE'S order was still operative.

Reference was made to a plethora of cases on orders or judgments that are purely interlocutory from which no appeal lies without leave, and those having a final or definitive effect which are appealable without the need for leave. In the applicants' heads of argument, filed together with the application, reference was made to the cases of Hunt v Hunt 2000 (1) ZLR 165 (H) and 1, 2, 3 & 4 Combined Harare Residents Association & Anor v Registrar-General & Ors 2002 (1) ZLR 83 (H) & (SC).

But, in my view, all these authorities were in-apposite.

Other well-known and oft quoted cases on the point, both in this jurisdiction and South Africa, are Dickinson & Anor v Fisher's Executors 1914 AD 424; Pretoria Garrison Institutes v Danish Products 1948 (1) SA 839 (A); South Cape Corporation v Engineering Management Services 1977 (3) SA 534; Zweni v Minister of Law and Order 1993 (1) SA 523 (A); Jesse v Chionza 1996 (1) ZLR 341 (S); Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd 1996 (3) SA 686 (AD); Mwatsika v ICL Zimbabwe 1998 (1) ZLR 1 (H).

There are many others.

Where to draw the line between decisions which are purely interlocutory and therefore un-appealable without leave, and those which are final and having a definitive sentence and therefore appealable, as of right, is a question that has vexed many eminent lawyers and jurists for centuries: per SCHULTS J in Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd 1996 (3) SA 686 (AD)…, and DE VILLIERS J in Davis v Press & Co 1944 CPD 108…,.

But the principle is now settled. It was summarised by CORBETT JA in South Cape Corporation v Engineering Management Services 1977 (3) SA 534…,.

The term 'interlocutory' refers to all orders pronounced by the court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. Orders of this kind fall in two classes:

(i) Those which have a final and definitive effect on the main action; and

(ii) Those that are simple, purely, and properly interlocutory.

A simple interlocutory order, i.e. a preparatory or procedural order, is not appealable without leave.

Counsel for the applicants urged me to find that the provisional order by NDEWERE J, on 21 April 2015, was purely interlocutory.

Indeed it was.

There could be no rational argument against that. It was classically interlocutory because it did not decide the issue or dispute between the parties. In my view, it was actually an interlocutory matter within another interlocutory matter. The main dispute between the parties was in HC11024/14, the action matter in which the respondent had obtained a default judgment. The application for rescission of judgment was itself an interlocutory matter. The application for stay was even more removed from the main dispute. It was an application within another application. In no way would it decide the application for rescission, let alone the dispute pending in the main action.

So, ordinarily, no appeal could lie against such a provisional order as was issued by NDEWERE J. But the respondent nonetheless appealed against it without leave.

It is every litigant's right to appeal to the highest court in the land.

The purpose of an appeal to a higher court is so that an error committed by the lower court is corrected: see Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839…,. In terms of section 169(1) of the Constitution of Zimbabwe, the Supreme Court is the final court of appeal in Zimbabwe, except for Constitutional matters. But, in certain situations, the right of appeal is removed or restricted. Certain matters are simply not appealable. Others are appealable only with the leave of the court from which, or the judicial officer from whom, the appeal lies.

The rationale for proscribing or limiting the right of appeal in certain situations was given by SCHREINER JA in Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839…,. At p867, the learned judge of appeal said:

“A wholly unrestricted right of appeal from every judicial pronouncement might well lead to serious injustices. For, apart from the increased power which it would probably give the wealthier litigant to wear out his opponent, it might put a premium on delaying and obstructionist tactics. This latter consideration has, I imagine, been the predominant one in leading legislators to try to restrain the bringing of appeals from orders of a preparatory or procedural character arising in the course of a legal battle. The chief object has naturally been to bring about a just and expeditious decision of a major substantive dispute between the parties….,.  But desirable as it would be to ensure that all such orders are properly made, it has been widely felt, in different ages and countries, that a line between appealable and non-appealable orders of this preparatory or procedural character ought to be drawn somewhere; for if they were all appealable, the delay and expense might be excessive, while if they were none of them appealable the injustice resulting from wrong orders might be intolerable.”

In casu, the respondent argued that in spite of the order of NDEWERE J being interlocutory, and therefore being one generally not appealable without leave, nonetheless it had proceeded to appeal against it without leave because this is permissible in terms of section 43(2)(d)(ii) of the High Court Act [Chapter 7:06]. The respondent argued that the provisional order was an interdict. One does not need leave to appeal against the grant or refusal of an interdict.

Section 43(2) of the High Court Act reads as follows:

“(2) No appeal shall lie -

(a)…,.

(b)….,.

(c)…,.

(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…,.”

The structure of section 43 of the High Court Act as a whole is such that it begins, in subsection (1), by granting a blanket right of appeal to the Supreme Court in all civil cases from any judgment of the High Court, but subject to what the rest of the section says.

The rest of the section, in subsection (2)(a) to (c), takes away, altogether, the right of appeal in the situations specified therein. For example, no appeal lies from an order of the High Court given by consent of the parties; or from an order refusing summary judgment. Then, in subsection (2)(c)(ii) and (2)(d) the right of appeal is restricted. Leave is required in the situations specified therein. An interlocutory order or judgment given by a judge is not appealable unless with the leave of the judge who granted it, or, where he has refused that leave, with the leave of a judge of the Supreme Court. But even in these situations, there are exceptions. The grant or refusal of an interdict is one such. No leave is required to appeal.

Against the clear provisions of section 43(2)(d)(ii) of the High Court Act, counsel for the applicants' argument was that the court was not precluded from deciding whether a particular interdict was purely interlocutory, the grant or refusal of which would necessitate leave to appeal, or one with a final or definitive effect, the grant or refusal of which would require no leave.

I do not agree.

The section is very clear. It does not refer to just an interdict. It expressly and unequivocally refers to the grant or refusal of an interdict.

HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5^th ed, note, from case authorities, that the grant of an interdict pendente lite, though causing great, and indeed, irreparable prejudice, clearly does not dispose of any issue or any portion of it in the main suit. The grant of such interdict is appealable only with leave. But the refusal does not require leave.

In Loggenberg v Beare 1930 (2) TPD 714 and Davis v Press & Co 1944 CPD 108, it was held that the interdicts pendente lite granted by the Magistrates' Courts were not definitive and therefore not appealable. The two judgments were interpreting a provision in the then Magistrate's Court Act of South Africa; almost similar to section 43(2)(d) of our High Court Act. The South African provision said, in part:

“…, a party to any civil suit or proceeding in a Court may appeal…, against…, any rule or order made in such suit or proceeding and having the effect of a final and definitive sentence, including any order as to costs.”

But, there is a world of difference between that provision and section 43(2)(d)(ii) of the High Court Act. The South African provision referred to any rule or order made in a suit having the effect of a final and definitive sentence. On the other hand, section 43(2)(d)(ii) of the High Court Act is very specific.

It refers to the grant or refusal of an interdict.

The major reason why I felt that the case being argued before me was not really the one I had to make a decision on was that the applicants' application was not, as I eventually figured it out, about interdicts per se. In a broad sense, to grant or refuse a stay of execution is to grant or refuse an interdict. An interdict is an injunction. It is a remedy by a court, either prohibiting somebody from doing something (prohibitory interdict), or ordering him to do or carry out a certain act (mandatory interdict): see Oxford Quick Reference Dictionary of Law 8^th ed…, and HERBSTEIN and VAN WINSEN, , The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5^th ed…,.

But, in my considered view, the focus of section 43(2)(d)(ii) of the High Court Act is not about applications for stay of execution as a species of an interdict. Otherwise every order of court, for instance, one directing someone to pay another a sum of money, would always be an interdict. The distinction between ordinary interdicts and stays of execution in particular is more apparent when one considers the separate requirements for each remedy. With an interdict, the applicant must show a clear right in his favour, or, in the case of an interim interdict, a prima facie right having been infringed, or about to be infringed; an apprehension of an irreparable harm if the interdict was not granted; a balance of convenience favouring the granting of the interdict, and the absence of any other satisfactory remedy:

See Setlogelo v Setlogelo 1914 AD 221; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (1) ZLR 289 (SC); Hix Networking Technologies v System Publishers (Pty) Ltd & Anor 1997 (1) SA 391 (A); Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 (1) ZLR 234 (H).

On the other hand, in an application for a stay of execution, the requirements are real and substantial justice: see Cohen v Cohen 1979 (3) SA 420 (R); Chibanda v King 1983 (1) ZLR 116 (SC); Mupini v Makoni 1993 (1) ZLR 80 (S); and Muchapondwa v Madake & Ors 2006 (1) ZLR 196 (H).

The premise on which a court may grant execution pending appeal is the inherent power reposed in it to control its own process. In Cohen v Cohen 1979 (3) SA 420 (R), GOLDIN J said…,:

“Execution is a process of the Court, and the Court has an inherent power to control its own process subject to the Rules of Court. Circumstances can arise where a stay of execution, as sought here, should be granted on the basis of real and substantial justice. Thus, where injustice would otherwise be caused, the Court has the power and would, generally speaking, grant relief.”…,.

In my view, the requirements for an application for a stay of execution, admittedly a species of an interdict, are less onerous than those for an ordinary interdict.

In casu, justice would turn on its head if I did not grant the substantive relief sought by the applicants. The sole object of the provisional order by NDEWERE J, on 21 April 2015, was undoubtedly to preserve the status quo ante so as to allow for the determination of the application for rescission of the default judgment. The learned Judge obviously considered that real and substantial justice would be achieved by granting a stay of execution. She most probably considered that allowing execution in the face of an application for rescission of judgment would render any judgment in favour of the applicants in that application a brutum fulmen. In the application before me, the respondent is now saying, in effect, by the appeal stratagem, NDEWERE J's order was suspended and that therefore the way has been opened for it to proceed with execution. But if that were to happen, not only would any judgment in favour of the applicants in the application for rescission be rendered brutum fulmen, but also the object of the provisional order by NDEWERE J would be rendered nugatory.

That, to me, is manifestly intolerable.

It is for the above reasons that I hereby grant the order for stay of execution. The interim relief shall read:

“INTERIM RELIEF GRANTED

The Magistrates Court sitting at Hwange granted summary judgment for the eviction of the present applicant from premises known as No.730 Mpumalanga, Hwange which belong to the first respondent, on a date which is not apparent from the papers before me.

The applicant made an application before that court for the rescission of the summary judgment order.

On 22 March 2016, the Magistrates Court directed that the application for rescission of judgment be heard in the normal way on the set down date of 7 April 2016. The applicant would have none of it. He immediately noted an appeal to this court on 24 March 2016 against the directions of the Magistrates Court; which notice of appeal he then used as a weapon to ward off eviction from the premises, supremely confident that the noting of an appeal had suspended the summary judgment for his eviction.

He had not reckoned on the predatory instincts of the first respondent who immediately instructed the Messenger of Court to proceed with eviction and the recovery of the sum of $754= representing arrear rentals and execution costs.

Acting by virtue of a writ of eviction and execution, the Messenger of Court evicted the applicant from the premises on 1 April 2016 casting aside the notice of appeal which the applicant wielded as a defence against eviction. As he closed in on the applicant's property, to recover the outstanding money, the applicant quickly capitulated and paid the required sum of $754=.

Distraught, and obviously with wounded pride, having been outplayed at his game the applicant looked up to this court launching an urgent “application for spoliation arising out of the respondent's conduct.”

The application is anchored on the fact that the respondents have taken the law into their hands by executing a judgment which has been appealed against. The appeal suspended that judgment, and, as such, the eviction was unlawful and constituted an act of spoliation entitling the applicant to restoration of the status quo ante.

On those facts, the applicant has moved for a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause why an order in the following terms should not be granted:

1. The execution of the judgment granted in favour of first respondent by a magistrate at Hwange on the 22^nd of March 2016, under case number Gt27/16, should not be stayed pending the final determination of the appeal lodged by applicant in this court number HCA 29/16.

2. That the 1^st and 2^nd respondents bear the costs of this application.

INTERIM RELIEF GRANTED

Pending return date, applicant is granted the following relief;

1. The 1^st and 2^nd respondents are ordered to restore applicant into undisturbed occupation of House No. 730 Empumalanga, Hwange.

2. All the goods attached and/or cash paid in lieu thereof on the 1^st of April 2016 be and are hereby restored to applicant.”

It is significant that the applicant has not attempted to set out any basis for contesting his eviction from the premises, content to only rely on the noting of an appeal - an appeal noted not against the eviction order but ostensibly against the dismissal of his application for rescission of judgment when in fact the magistrate had only issued directions.

That is exactly where the applicant has missed the point as counsel, who appeared on his behalf, to his credit, conceded. First, there was the order for eviction, then there was the order dismissing the application for rescission of judgment.

In fact, the applicant's situation became even more untenable when counsel for the first respondent made her submissions. She painted a grim picture of the applicant as an unrepentant dismissed employee whose forte of late has been to file endless unreasonable applications out of the Magistrates Court in Hwange which applications he has not bothered to prosecute.

According to counsel for the first respondent, the applicant filed two applications for stay of execution and two applications for rescission of judgment which he set down for hearing in April and May 2016 clearly intending to delay the day of reckoning. Inexplicably, he then demanded to be heard by a magistrate on an urgent basis on 22 March 2016, when his were ordinary applications which could not be entertained on an urgent basis. When the magistrate gave directions that the matters be dealt with on the set down date, that is 7 April 2016, the applicant seized that opportunity to note an appeal against that directive which could not possibly be appealed against.

It is that appeal which the applicant later sought to rely upon to ward off execution. Surprisingly, when the date of hearing (7 April 2016) came, the applicant did not bother to attend court and his applications were systematically dismissed.

Counsel for the applicant conceded that the applicant could not appeal against the directions issued on 22 March 2016 as if they were a definitive determination of the matter.

Clearly, therefore, if ever there was a suspension of an order by the noting of an appeal, it was the directive in question - a patently meaningless exercise. It was a useless appeal meant to accord the applicant a weapon to delay eviction but spectacularly misplaced leaving him exposed in respect of the eviction order which remains effectual and binding.

This is a classic case of closing the back door while leaving the front door open, and the applicant, very wide open for a sucker punch.

There are no prospects of the appeal which is sought to be reinstated to succeed.

This is so because the appeal seeks to be brought to challenge an interlocutory decision. The leave of MWAYERA J was not sought to note an appeal against her decision to dismiss the application for stay of the trial proceedings.

At the hearing of the matter, counsel for the first respondent sought to argue that the appeal was not properly before the court for the reason that the appellant sought to appeal against an interlocutory order.

He contended that the order did not have a final and definitive effect as the appellant had not fully exhausted the remedies in the court a quo, namely, filing its opposing papers to the final order sought.

He was directed by the court to section 43(2)(d)(iii) of the High Court Act [Chapter 7:06] which reads as follows:-

“(2). No appeal shall lie

(a)…,.

(b)…,.

(c)…,.

(d) From the 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)…,.

(ii) Where an interdict is granted or refused.

(iii)…,.”

After examining the section, he correctly conceded that the appeal was properly before the court.

The general rule is that a provisional order granted under Rule 246(2) of the High Court Rules, 1971 is always subject to confirmation or discharge before it becomes final, and, therefore, appealable. See Nyikadzino v Asher & Others 2009 (1) ZLR 174 (H)…,.

This does not apply to an interlocutory order granting the relief of an interdict as is provided for in section 43(2)(iii) of the High Court Act [Chapter 7:06].

It has now been brought to my attention that an appeal was noted against this interim order on 23 June 2015.

I observe that in the pending appeal it is contended that an appeal is noted against “the whole judgment of the court a quo.” I will not dwell on the rest of the issues raised in the Notice of Appeal as that matter is now pending in the Supreme Court.

It seems to me that the appeal was filed without a full appreciation that in fact I issued an “interim” order and that there was in fact no “whole judgment.”…,.

I was acutely aware that the order I granted was to provide interim relief and that the respondents could, if so disposed file a notice of opposition within the period stipulated in the order. Further, and in any event, the respondents could, in terms of the Rules, anticipate the matter and set it down for argument. There was therefore no prejudice to the respondents.

I…, endorsed the face of the application with the words “not urgent”.

On 3 December 2014, a letter addressed to my assistant was served in chambers by counsel for the applicants. In the letter, the legal practitioners proceeded to advise my assistant that they were not happy with the endorsement of lack of urgency because they had not been heard in oral argument. They attached a set of heads of arguments, and, in their letter, instructed my assistant to place the matter for hearing before another judge or before me, whichever appeared expedient. The legal practitioners, in their wisdom, advised my assistant that “the application is therefore urgent on the basis that nothing short of an order of this honorable court will stop the Sheriff's scheduled removal of the attached goods.”

Aside from the ethical considerations of addressing my assistant directly on questions of law, or of having a matter that had been heard and determined by one judge placed before another judge for re-hearing, and the attendant procedural irregularities that are implied by such a course of action, the implied lack of knowledge of the Labour Act and its attendant remedies persuaded me to revisit my preliminary view and to set the application down for oral arguments on the question of whether the requirements of urgency had been met.

I was fortified in this view by Order 32 Rule 244 of the High Court Rules, 1971 which gives judges the discretion to invite interested parties to make representations on the question of urgency.

Further, I was guided by the persuasive authority, of the dicta in the case of Church of the province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346…, where this court said the following:

“…., while normally a court does not have jurisdiction to interfere with its own judgments because, in relation thereto, it is functus officio, it does have such jurisdiction over orders made in interlocutory and procedural matters…,. The endorsement that the matter is not urgent was made on a consideration of the papers without hearing any oral argument by the parties. It was the prima facie view of the matter as regards the issue of urgency. This court cannot be functus officio in such circumstances. Had the parties been heard orally and a determination made thereafter, such determination would be consequent upon full ventilation by the parties on the pertinent issue. In my view, the court would then become functus officio.”…,.

After hearing both the applicant and the first respondent, on 5 December 2014, it was ordered that the requirements of urgency had not been met; that the applicant had other satisfactory remedies in terms of the Labour Act; and that the matter be struck off the urgent chamber book with costs on an ordinary scale.

On the same date, the applicant's legal practitioners addressed a letter to me in which they requested that I supply them with written reasons for finding that the matter was not urgent, as they intended to appeal against that finding.

In order to save time, I instructed my assistant to telephone the applicant's legal practitioners and advise them to comply with the provisions of section 43 of the High Court Act.

I have now been served with a chamber application for leave to appeal by the applicants.

In considering this application, I came to the considered view that it was necessary to elucidate the reasons why I held the view that the requirements of urgency had not been met in the application for stay of execution. The same reasons would be of assistance in the determination of whether leave to appeal should be given to the applicants. I will deal with the requirements of urgency first, then address the question of whether leave to appeal should be granted.

The test for urgency is settled. It is so settled as to be cast in stone. One wonders why legal practitioners continue to grapple with the requirements of urgency, and why they continue to ill-advise their clients, resulting in a waste of the court's time and a corresponding waste of resources.

It has been held that:

“Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.” See Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.

It has also been held that:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis…,.”

See Mathias Madzivanzira & Ors v Dexprint Investments (Private) Limited & Anor HH145-02; Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H); Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; Lucas Mafu & Ors v Solusi University HB53-07.

In my view, which I previously expressed in the case of Finwood Investments (Private) Limited & Anor v Tetrad Investment Bank Limited & Anor (an unreported HH-2014 case). See also Denenga v Ecobank HH177-14); in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case law, must be met:

A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result if the matter is not dealt with straight away without delay.

(c) There is prima facie evidence that the applicant treated the matter as urgent.

(d) The applicant gives a sensible, rational and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy.

The need to act arose, for the first time, when the writ of execution was issued and the applicant's goods were attached in execution. The parties, in their wisdom, then decided to enter into a Deed of Settlement on 8 July 2014. The applicant agreed to pay the first respondent the sum of US$163,346=73 in total. It is not clear how that sum is calculated from the face of the Deed of Settlement. The terms of the Deed of Settlement do not mention the applicant's tax obligations to ZIMRA. It is clear that the order of the Labour Court that was registered with this court for purposes of execution is silent on the parties' tax obligations to the third respondent. Despite all this, the applicant expressly agreed to pay the full sum of US$163,346=73 to the first respondent by 1 October 2014. When it failed to do so, the first respondent caused more property to be attached pursuant to its writ of execution.

To find that the need to act then arose in December 2014, just because execution was imminent, is, in my view, not the sort of urgency that is contemplated by the law.

The writ of execution attached as Annexure 'A' to the urgent chamber application shows clearly that there was no mention of taxes in the calculation of the first respondent's dues by the Labour Court.

The question that arises is; what is the appropriate remedy available to an applicant in these circumstances?

The parties agreed to pay each other in tranches way back in July 2014 when the need to act first arose. The applicant waited until 22 October 2014, well after the fourth and last tranche of payment that had been agreed was due, and wrote a letter to the first respondent advising it of its tax liability. No satisfactory or reasonable explanation was proffered by the applicant as to:

(a) The reason why the Deed of Settlement between the parties, signed in July 2014, did not address the issue of the parties' liability to the third respondent.

(b) The applicant waited three months, from July to October, to raise the issue of tax obligations with the first respondent.

The applicant did not treat the question of its tax obligations to the third respondent as warranting urgent address. It did not apply its mind to this question when the Deed of Settlement was signed in July. To have the audacity to approach the court, via the urgent chamber book, and demand that other litigants wait while it is heard, does not cure the failure to act when the need to act arose.

The first respondent caused the applicant's goods to be attached on 28 November 2014. The attachment and imminent removal of the applicant's goods did not create urgency. There was deliberate failure to act when the need to act arose in July 2014 by failing to address the issue of tax obligations in the agreement between the parties. Raising that issue now, at the eleventh hour, when removal in execution is imminent, for the second time, does not place the applicant within the ambit of the requirements of urgency.

One of the requirements of urgency is that there be no satisfactory alternative remedy. It was submitted, on behalf of the applicants, that no remedies lie in the Labour Court because the award was registered as an order of this court, and reliance was placed on the case of University of Zimbabwe v Jirira & Ors SC06-13 as authority for this proposition.

That case provides an interesting discussion of the issues on both sides of the divide. The first thing to note is that in this case, I did not decline jurisdiction to hear the applicants. I made a finding that the requirements of urgency had not been met, more specifically, that the applicant failed to act when the real time to act arose, and that the applicant had failed to establish the requirement that there be no suitable alternative remedy available to an applicant who comes on a certificate of urgency. It was my view that the Labour Act provided a suitable and satisfactory remedy in the circumstances of this case.

The second distinguishing factor is that, in University of Zimbabwe v Jirira & Ors SC06-13, the applicant had filed an appeal to the Labour Court against the arbitral award, which appeal was pending before the Labour Court; whereas, in this case, no evidence was placed before me of whether the applicant had approached the Labour Court at all for determination of the question of the applicant's tax liability to ZIMRA, more particularly, whether, in light of the Deed of Settlement of July 2014, the applicant's tax liability ought to be deducted from the amount that the applicant expressly agreed to pay to the first respondent.

It is my considered view that the appeal to the Supreme Court has no merit and is not likely to succeed.

I am fortified in this view by the litany of distinguishing factors between the circumstances of this case, which is under consideration, and those that were before the trial Judge in University of Zimbabwe v Jirira & Ors SC06-13. The most obvious difference, as previously stated, is that no evidence was placed before this court, that an appeal had been filed with the Labour Court, so some of the legal issues that arose in University of Zimbabwe v Jirira & Ors SC06-13, will not be applicable here.

The question that arose before the Judge of Appeal, in chambers, on appeal, against the finding of the trial judge in University of Zimbabwe v Jirira & Ors SC06-13 was that it was submitted on behalf of the applicants that the learned judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. It was submitted that in the circumstances only the High Court could entertain an application for stay of execution of the award. The case of Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S) was relied on.

The argument proffered by the respondents before the Judge of Appeal was that an appeal against an arbitrator's award is an appeal in terms of the Labour Act and is not suspended pending appeal. They referred the Judge of Appeal to Zimphosphate v Matora & Ors SC44-05. The decision in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, it was argued, on behalf of the respondents, that the applicant ought to have proceeded, in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal which it failed to do.

It was submitted that there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against. The following cases were cited in support of this submission: Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

As previously stated, it is this court's considered view that it cannot be bound by the Supreme Court decision because the circumstances of this case are substantially and materially different from those brought before the Supreme Court, on appeal, in University of Zimbabwe v Jirira & Ors SC06-13.

In this case, I made a finding that the requirements of urgency had not been met because the applicant has other suitable alternative remedies before the Labour Court. I had in mind, specifically, the provisions of section 92C of the Labour Act which provide that the Labour Court may, on application, rescind or vary any determination or order.

The applicant could make a case for the Labour Court to re-visit its award and vary it, in terms of section 92C(1)(b), on the basis that it was obtained by a mistake common to both parties.

Neither party saw fit to petition the Labour Court to explicitly determine the extent of the tax obligation and to make a finding as to whether the amount of tax due could legally be deducted from the award in favour of the first respondent. On application to it, in terms of section 92C(1)(b), the Labour Court would have power, in terms of section 92C(3)(b), to suspend the operation of its order pending the application for variation, and on such terms as to security for the due performance of its order or variation thereof, as it saw fit.

It is important to note that the provisions of section 92C of the Labour Act must be invoked on notice to all parties, and that the Labour Court cannot exercise any of the powers conferred on it by section 92C(1) in respect of any determination or order which is the subject of a pending appeal or review.

In University of Zimbabwe v Jirira & Ors SC06-13…, this is what the Judge of Appeal, sitting alone in chambers, had to say:

“I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a bench of three Judges of the Supreme Court may come to a different conclusion, but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought…,.”…,.

Clearly, there was a grey area in the circumstances of University of Zimbabwe v Jirira & Ors SC06-13. In my view, there is no similar grey area in the circumstances of the case before me.

It was suggested that a bench of three judges of the Supreme Court settle the issue conclusively.

This case does not fall within the ambit of the legal principles on which University of Zimbabwe v Jirira & Ors SC06-13 turned. Having said that, I hesitate to decline to give the applicants an opportunity to test the legal principles on which this case was decided by way of an appeal to the Supreme Court. Although I hold the view that the applicant's appeal has no prospects of success, in the circumstances of this case, I am persuaded to grant the applicants leave to appeal, by the prospect of presenting an opportunity for the divergence of positions on these issues of the law to be ventilated.

For these reasons, and in the interests of justice, the application for leave to appeal is granted, with costs to remain in the cause.

On the 19^th July 2016 the court granted a provisional order interdicting the first respondent from conducting any mining operations at Dundrum North and Dundrum North 1 mines. The provisional order is still extant and has not been discharged.

The order is interlocutory, and, as such, before any appeal is noted against such order leave must be sought and obtained….,.

The first respondent purported to appeal against the provisional order by filing a Notice of Appeal with the Supreme Court. No leave to appeal against the interlocutory order was sought or granted….,.

It is, however, the province of the Supreme Court to determine the validity of such Notice of Appeal.

This is an appeal against the High Court's judgment sitting at Bulawayo. The judgment granted the first respondent a provisional order interdicting the appellant and all her employees from conducting all forms of mining on the five disputed claims pending confirmation of the provisional order. The order, dated 27 April 2017, is couched in the following terms:

“Interim relief granted

Pending the confirmation of the provisional order, the applicant be and is hereby granted the following relief:

That all forms of mining activities by the first respondent (appellant) and anyone in her employ on the five disputed claims be and are hereby suspended.”

The disputed 5 claims are:

1. Legion C under claim no. 10224BM.

2. Legion D under claim no. 10225BM.

3. Legion F under claim no. 10226BM.

4. Legion 13 under claim no.33216PM.

5. Legion 14 under claim no. 33217PM.

All the five (5) mining claims, commonly known as Legion Mine, are situated in the District of Gwanda. It is common cause that the first respondent is the registered owner of all the 5 claims having obtained transfer of the claims from Falcon Gold (Private) Limited sometime in 2012. On 20 December 2012 the parties concluded a Tribute Agreement in which the respondent granted a tribute to the appellent subject to agreed terms and conditions.

The Tribute Agreement was to endure for a period of 3 years from the first day of 20 December 2012 to 31 December 2015 subject to renewal on stipulated terms. Clause 1(b) provided for renewal and cancellation of the tribute agreement as follows:

“Renewal

The tributor shall have the right to extend this period of the tribute for a further period of THREE years after the expiry of the above period providing he has complied with the terms of this tribute agreement and providing he gives notice of such intention to the Grantor as follows:

At least three months prior to 31 December 2015 (termination of the first period), the Tribute shall give written Notice to the Grantor stating whether he wishes to relinquish his Tribute at the end of the first period or to exercise his right to Extend the Tribute Agreement for the further period stated.

Cancellation of Agreement by Grantor

It is expressly agreed that, if at any time during the initial period or any subsequent renewal of this agreement, the Grantor desires to commence prospecting or mining over the mining claims, he may cancel this agreement by written notice to the Tributor of not less than Six months.”

Clause 10 of the Agreement provided for breach of contract as follows:

“Should the Tributor commit any breach of the conditions of this agreement, the Grantor may make immediate demand upon the Tributor to rectify any such breach within seven days from the date of demand and should the tributor fail to rectify such breach of agreement, then, and in such case, the Grantor shall have the right to terminate this agreement by giving one month's notice to that effect to the Tributor subject to such determination not in any way affecting any claim for damages sustained by the Grantor in respect of such breach.”

The appellant did not exercise her option to renew the Tribute in terms of clause 1(b) of the agreement despite a written offer to renew the Tribute by 31 December 2015. That date came and passed without the appellant accepting the offer. Notwithstanding the non-renewal, the appellant continued to mine the claims illegally without contract. The appellant's continued unlawful conduct in this respect prompted the respondent to write to her, on 6 October 2016, demanding vacant possession of the mining claims. The letter reads:

“Mrs Siphiwe Dube

NOTICE OF TERMINATION OF OPERATIONS AT LEGION MINE

We have been in discussion with you for several times with regards to you signing the tribute agreement and in respect of same without success. The Board has finally decided to part ways with you. And pursue their own operations. We hereby request you to move out of our mining locations and wind up all operations within the next seven days. On 14 October 2016, our resident manager, Mr Siziba, will be there for a complete inspection of your withdrawal.

Thank you for the time you have been with us.”

The respondent's letter provoked a rather surprising and unexpected response from the appellant through her legal practitioners, Majoko and Majoko Legal Practitioners. In that letter, dated 1 December 2016, she now claimed to have occupied and worked the claims under the auspices of Falcon Gold whom she claimed to be the rightful owners of the mining claims. She disputed the respondent's ownership of the claims and averred that she had been promised change of ownership into her name by Falcon Gold. For that reason, she refused to vacate the mining claims until she had received contrary information from the Ministry of Mines and Falcon Gold. The letter written by her legal practitioners reads:

“A brief history, we believe, will assist in the understanding of our client's position. Our client has been mining from Legion since 2003, having done so under tribute from Falcon Gold Zimbabwe Ltd.

Discussion involving the Ministry of Mines and Mineral Development were held with Falcon Gold and our client as a result of which it was agreed that the claims would be registered in our client's names and our client has, and there is evidence of this written understanding, from so far back as 2007, been awaiting formal transfer and registration of the claims into her name.

If there were any changes in this understanding, it was not communicated to our client. She has been in occupation and working the claims on the bona fide understanding that the claims were, to all intents and purposes, hers.

At no time was our client advised, as she would have been entitled to, of any change of ownership of the claims from Falcon Gold to yourselves.

You will appreciate, in the circumstances, that our client cannot, without prejudicing her rights, accede to your demand that she vacates the claims, until she has received formal communication from the Ministry of Mines and Falcon Gold that what was agreed upon regarding the claims has been changed.”(sic)

Despite that spirited resistance to eviction, the appellant neither called upon Falcon Gold and the Ministry to vindicate her rights of occupation nor as witnesses to support her story. Falcon Gold has however laid no claim to ownership of the mining claims as alleged by the appellant or at all. Thus, in the absence of any evidence or support from Falcon Gold and the Ministry, the appellant's claim to lawful entitlement to the mining claims in question through Falcon Gold sounds hollow and unbelievable.

In a clear about turn, the appellant wrote to the respondent on 12 January 2017 offering to pay royalties in return for permission to continue mining on the claims. The letter reads in part…,:

“Our client, her legitimate expectations notwithstanding, is not averse to paying royalties and (in) this respect repeats her tender of the agreed royalty of 5 percent. In the event that your client wish(es) to engage ours in negotiating a variation of the royalty they are free to do so and our client will, in good faith, negotiate any variation your client may wish.”

The appellant's offer to pay royalties to the respondent, without recourse to Falcon Gold and the Ministry of Mines, undoubtedly amounts to an unequivocal admission that the respondent is the registered owner of the disputed mining claims. It is inconceivable that a litigant represented by a competent law firm would enter into a Tribute Agreement with a non-owner and pay royalties for 5 years in circumstances where she claims to be the true owner of the mining claims. At the expiration of the Tribute Agreement she continued to mine illegally with impunity without a contract from the respondent.

When faced with eviction she initially resisted, claiming to be the lawful owner or tributor through Falcon Gold. When challenged, she made an about-turn and offered to pay royalties to the respondent thereby recognising its claim to ownership of the disputed mining claims. The appellant's conduct in this respect betrays a devious character bent on reaping where she did not sow. For that reason, she was obviously telling a patent lie when she claimed to be the owner of the disputed mining claims or tributor granted by Falcon Gold.

For obvious reasons, courts are averse to and detest dishonest litigants bent on misleading the courts. The function of the courts is to do justice. Lies are detrimental and incompatible with the due administration of justice in that they are bound to mislead the court into the wilderness of injustice. This prompted NDOU J, in Leader Trend Zimbabwe v Smith HH1311/03…., to remark that:

“It is trite that if a litigant gives false evidence, his story will be discarded and the same adverse inferences may be drawn as if he had not given evidence at all. See Tamahole Bereng v R [1949] AC 253 and South African Law of Evidence by L H Hoffman and D T Zeffertt (3^rd ed) at page 472. If a witness lies about a particular incident the court may infer that there is something about it which he wishes to hide.”

In this case, the only reasonable inference to be drawn from the proven facts is that the appellant wanted to mislead the court into believing that she was lawfully mining on the disputed claims so that it would allow her to continue mining illegally to the detriment of the respondent. Having failed to pull wool over the court's eyes, it is hardly surprising that she lost the plot and the court a quo issued a provisional order stopping her from continuing with her illegal conduct pending the final determination of the dispute….,.

For the foregoing reasons the appeal cannot succeed.

It is accordingly ordered that the appeal be and is hereby dismissed with costs at the legal practitioner and client scale.

On 13 June 2014 the applicant filed an urgent chamber application for an order of spoliation….,.

But, as it prepared its papers for the order of spoliation, it seems the applicant was somewhat confused on the choice of remedy.

After laying out the foundation for a spoliation order it also went on to lay out some foundation for an interdict. Among other things, the applicant alleged a prima facie right. It alleged an actual harm suffered; the absence of no other effective remedy; the balance of convenience being in its favour and the fear of an irreparable harm. All these are factors for an interlocutory interdict. In the result, the applicant sought a provisional order the draft of which was clearly a hybrid. The final order sought an interdict. The provisional order sought an order of spoliation.

In my view, the applicant's approach was defective. An order of spoliation is a final order. It does not have an interlocutory nature: see Mankowitz v Loewenthal 1982 (3) SA 758…,.

The two elements of spoliation, namely, peaceful and undisturbed possession and the act of spoliation, have to be proved on a balance of probabilities. On this point, the learned authors SILBERBERG and SCHOEMAN'S The Law of Property, 5th ed…, say:

“These two facts have to be proved on a balance of probabilities: a prima facie case will not suffice, the mandament van spolie being a final order.”

In a footnote, and after citing several case authorities on the point, the learned authors say:

“Kleyn 1989 De Jure 154 emphasises this aspect very clearly in his discussion of the Aussenkehr case. The mandament is a unique remedy that falls within a category of its own and should not be confused with an interdict. The most important difference between the mandament and an interdict is that the merits are not considered where the mandament is claimed, whereas the merits are extremely important when an interdict is sought in that a clear right has to be established.”