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;