Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Interlocutory Judgments & Nature and Effect of Relief Granted

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.

This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.

On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers were filed by the respondent.

The applicant has requested that I furnish him with reasons for the judgment, and these are provided herein.

The applicant filed an application in the High Court, on a certificate of urgency. The court a quo, on 26 June 2013, issued the following decision:

“There is no urgency in this matter warranting this matter to be allowed to jump the queue. The applicant has had all the time in the world to take the initiative to clear his name. I decline to treat this matter as urgent.”

Upon a request from the applicant, the court a quo provided written reasons for the decision not to hear the matter on an urgent basis.

The court a quo, in this respect, relied on the case of Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188 (H)…, in which the following principle was set out:

“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.”

The learned Judge's assessment of the evidence before him indicated, that, the genesis of the applicant's problems with the respondent dated back to 2003, spilled over to 2007, and then to 2009 and thereafter.

The Judge found, that, the applicant had been fully aware of the conduct of the respondent towards him and that he had always had the opportunity to take the initiative to clear his name. He had chosen not to do so and had only rushed to court, on an urgent basis, on 24 June 2013.

The court concluded, that, the applicant's conduct, in this respect, was not what the whole concept of urgent applications contemplated.

The applicant, on 16 September 2013, then sought the leave of the court a quo to appeal to this court against the decision declining to hear his matter on an urgent basis.

The court a quo having dismissed that application, the applicant then filed the present application before me.

It is essentially an application where the applicant is seeking my leave to appeal to this court, against the decision of the judge a quo that his matter before that court was not urgent.

To properly determine this matter, I consider it pertinent to consider two main issues. These are:

(i) Firstly, the reasoning of the court a quo which led to the decision that it reached: and

(ii) Secondly, the question of whether or not the intended appeal has any prospects of success.

It is my view, that, the requirement for the applicant to file a copy of his Notice and Grounds of Appeal together with an application of this nature, is to enable this court to make a proper assessment of the applicant's prospects of success on appeal.

Having considered the papers before me, which included the reasoned judgment of the court a quo as well as the applicant's affidavits, I find myself in full agreement with the judge's reasoning and determination.

I find, more to the point, that, the applicant did not place before the court a quo, nor before me, any evidence to show that there was, in his application, the type of urgency that would have merited a hearing on an urgent basis.

In other words, he failed to show, that, at the time the need to act arose, the matter could not wait.

I would therefore have dismissed the application to hear the matter on an urgent basis, in the same manner that the court a quo did, and for the same reasons.

As already indicated, I proceeded to do the same in casu.

The applicant properly filed a copy of his notice and grounds of appeal. A synopsis of his grounds of appeal shows that he intends to premise his appeal on two main grounds, both essentially factual:

(i) Firstly, the applicant seems to argue that the court a quo improperly interposed and considered together, two cases that had different HC numbers and were therefore unrelated.

This was in reference to the fact, that, the urgent chamber application was given the number HC4997/13 while the chamber application for leave to appeal was given the number 5794/13.

A perusal of the latter shows that both numbers are, properly, in my view, endorsed on the right hand corner of the document entitled “Chamber Application for Leave to Appeal” clearly showing that the two cases were related.

Apart from this ground of appeal, indicating what seems to me to be a mis-appreciation, by the applicant, of the HC numbering system and its implications in related cases, it is evident that the issue has no bearing on the merits of whether or not the case merited an urgent hearing a quo.

I find, therefore, that, there is little, if any, prospect of success on appeal based on this ground.

The applicant alleges, in his other main ground of appeal, that, there was evidence on record to show, that, contrary to the finding by the court a quo, he had in fact timeously made the effort to clear his name over the period stretching from 2003.

I have already associated myself with the reasoning of the judge a quo and his assessment of the evidence that led to the decision that he reached on this point and will therefore not repeat my reasons for doing so.

This ground of appeal, in my view, lacks merit and carries with it no prospects of success on appeal.

It was for these reasons that I dismissed the application, on the papers, and with no order as to costs.

It should be noted, however, that, the dispute between the applicant and the respondent is still pending before the High Court. It will take its place in the “queue” of ordinary court applications and be set down for hearing when its turn comes.

It occurs to me, that, by pursuing the course of action that he has in casu, the applicant might possibly have delayed, or may delay progress in the finalization of the matter.

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:“INTERIM RELIEF GRANTEDPending determination of this matter, applicant is granted the following relief:1. That 1st respondent is directed to remove himself and property and all persons holding through ...

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:

“INTERIM RELIEF GRANTED

Pending determination of this matter, applicant is granted the following relief:

1. That 1st respondent is directed to remove himself and property and all persons holding through him from Arden Estate within 24 hours of the date of service of this order.

2. The Deputy Sheriff is authorised to evict 1st respondent and all persons holding through him from the farm.

3. That 1st respondent is interdicted from interfering with applicant's farming activities.

4. That 2nd respondent is directed to give the necessary instruments to Nyabira police to render all necessary assistance to the Deputy Sheriff in implementing his order should 1st respondent offer any resistance thereto.

TERMS OF FINAL ORDER SOUGHT

1. That 1st respondent be interdicted from returning or visiting Arden Estate.

2. That 1st respondent pay the costs of application on a legal practitioner and client scale.”

In that case, Bell Inn (Pvt) Ltd, the first respondent in the present proceedings, was the applicant while Mr Zakeyo Mereki, the applicant in the present case, was the first respondent, and the Commissioner of Police was the third respondent.

On that same day, id est 30 November 2005, Zakeyo Mereki filed an application to suspend service of Bell Inn's application on himself. His application was heard in chambers on 5 December 2005 and judgment was handed down on 7 December.

The order that the court issued was as follows:

“TERMS OF RELIEF MADE

1. That the 2nd respondent be and is hereby ordered to suspend service of the order annexure “C” on the applicant.

2. That the applicant be and is hereby entitled to remain in occupation of subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province until the final determination of this matter and to carry on all farming activities which he was engaged in or intended to engage in consequent upon his right to occupation in terms of annexure “A” the letter dated 10th November 2005 from the acquiring authority.

TERMS OF ORDER SOUGHT

1. That the applicant be and is hereby declared to be the rightful occupier of No.1 Arden Estate in Zvimba District of Mashonaland West Province in terms of the offer letter annexure “A” dated 10th of November 2005.

2. That the 1st respondent be and is hereby ordered to cease occupation of the subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province.

3. That the 1st respondent pay the costs of this application.”

When Bell Inn's application was served on Zakeyo Mereki, on 2 December 2005, he had already filed the above application seeking to prevent the Deputy Sheriff from effecting service on him.

In the same application, Zakeyo Mereki was seeking for a declarator.

As already stated above, the court handed down the judgment on 7 December 2005 wherein it declared Zakeyo Mereki as the correct occupier of the disputed piece of land.

Two days later, Bell Inn filed a notice of appeal against that judgment.

Zakeyo Mereki, who is the respondent in the appeal, contended, that, the appeal was a nullity. Hence the order that he was granted remained operative. It could only have been suspended had the appeal been properly and validly noted against that judgment and order, so his contention went.

The appellant appealed against the granting of an interdict to the respondent.

The respondent argued, that, when an interdict is granted it was not appellable. It was only the refusal of an interdict which is appellable.

Counsel for the respondent argued this point at some length citing some South African authorities.

He concluded, that, the legal position on that point was as stated in the South African authorities and went on to submit, that, the appellant had misread the law.

It turned out, however, that it was him who had misread the law.

There was no need for the respondent to refer to foreign authorities when our statutes have the answer to the question that falls to be decided.

In casu, the answer lies in section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which recites 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 a judge, 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.”

Quite clearly, there was no need for the appellant to obtain leave of the judge in this matter.

Its appeal was properly and validly noted and it suspended the judgment and order handed down on 7 December 2005.

In this application, Zakeyo Mereki sought confirmation of the provisional order which the noting of an appeal suspended.

That is clearly untenable.

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

This is an application for leave for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution (“the Constitution”), as read with Rule 21(2) and (3) of the Constitutional Court Rules 2016 (“the Rules”).The application is opposed.FACTUAL BACKGROUNDThe applicant and the respondent were involved in ...

FACTUAL BACKGROUND

The applicant and the respondent were involved in a labour dispute which ultimately found its way before the Supreme Court. The Supreme Court found in favour of the applicant and ordered the respondent to pay the applicant an amount of USD41,161=30 as damages for unlawful dismissal.

Pursuant to the order, the applicant caused a writ of execution to be issued out for the attachment of the movable property of the respondent in satisfaction of the judgment. She instructed the second respondent to execute the writ.

Upon service of the writ, on 15 January 2020, the first respondent paid through RTGS the sum of 43,495=37.

Notwithstanding such payment, the applicant caused the seizure of the respondent's movable property which prompted the latter to seek a provisional order to stay the execution of the writ.

The applicant was undeterred.

On 7 July 2020, she caused the issuance of an additional writ, this time against the movable and immovable property of the respondent.

On 28 July 2020, an immovable property of the first respondent was attached in execution pursuant to the second writ. The second respondent was instructed to sell the property. The sale was scheduled to take place on 2 October 2020.

The first respondent reacted.

It filed an urgent court application seeking the setting aside of the second writ of execution and the consequential attachment of the immovable property. The applicant was given five days to respond to the application.

Due to an error, the matter was treated as an urgent chamber application instead of a court application and referred to a judge in chambers.

The applicant had not, at that stage, filed any papers in response.

There was also no proof on record that the first respondent had served the court application on the applicant as required by the rules of court.

At the time, the dies induciae stated on the application had not expired and the matter was removed from the roll for urgent chamber applications.

After correspondence from the first respondent, to the High Court, pointing out the errors, was received, the error was rectified and the parties filed their papers in accordance with the Rules.

The applicant had grievances on how papers of the application were served on her.

She filed several letters in the record raising issues on how the matter was being dealt with by the first respondent and the conduct of the matter by court officials.

The first respondent also requested audience with the judge to whom the matter had been assigned. The learned judge acceded and set a date for the parties to appear before her.

On 28 September 2020, the parties appeared before a judge of the High Court, in chambers, for a case management meeting to prepare a road map for the disposal of the matter.

During the meeting, the first respondent requested that the applicant agree to a postponement of the judicial sale of the immovable property. The applicant would not agree, resulting in the former making an oral application for the suspension of the sale in execution.

Pursuant to that meeting, an order in the following terms, was issued:

“IT IS ORDERED THAT:

1. First respondent to be served with applicant's answering affidavit and heads of argument forthwith.

2. The first respondent shall, if she so wishes, file her heads of argument on or before 5 October 2020.

3. The matter HC4380/20 be set down on 8 October 2020.

4. The writ of execution in SC119/19 be suspended pending the decision of the court in HC4380/20.

5. Costs of the stay in execution incurred by the second respondent pending the decision of the court in HC4380/20 shall be borne by the applicant.”

On 7 October 2020, the applicant filed this application for direct access to the Court.

She attached a copy of the main application she wishes to file under section 85(1) of the Constitution in which she alleges that her rights had been violated by the order granted by the court a quo....,.

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED

The Constitutional Court is a specialised court, and, in terms of section 167(1)(b) of the Constitution, decides only constitutional matters and issues connected with decisions on constitutional matters.

It thus exercises jurisdiction as a court of first instance and an appeal court.

In view of the limited jurisdiction of this Court, direct access to the court, for the exercise of its jurisdiction for the vindication of a fundamental right premised on section 85 of the Constitution, as a court of first instance, is granted to a litigant who is able to show, that, it is in the interests of justice for direct access to the court to be granted to such litigant.

The import of the principle for the requirement that an applicant for direct access show that it is in the interest of justice that the application be granted ought not to be minimized.

The requirement was explained by I CURRIE and J De WAAL in 'The Bill of Rights Handbook' 6ed…, as follows:

“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases….,.

If constitutional matters could be brought directly to it, as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction.

Moreover…, it is not ordinarily in the interest of justice for a court to sit as a court of first instance in which matters are decided without there being any possibility of appealing against the decision given.”

A court that sits to decide whether or not it is in the interests of justice that direct access be granted may take into account a number of factors for consideration. Those factors are set out in Rule 21(8) of the Constitutional Court Rules as follows:

“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

Within this jurisdiction, the requirement that an applicant shows prospects of success as regards the main application, as provided for in Rule 21(8) of the Constitutional Court Rules, was settled in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, wherein the court made the following remarks:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:

(i) The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

(ii) The second factor is that the applicant must set out in the founding affidavit facts or grounds that show that the main application has prospects of success should direct access be granted.”…,.

In casu, it is common cause, that, the decision that the applicant alleges to be in violation of her rights is an interlocutory one.

It was the decision to suspend the sale of the first respondent's immovable property pending the determination of the matter on the substance. The suspension of the sale did not determine any rights of the respective parties. The decision served to preserve the rights of the parties until a decision on the merits had been made. The court reasoned thus:

“This Court is required to decide, on 8 October 2020, whether the payment by the applicant (first respondent herein), of $43,495=37, to the Deputy Sheriff, on 14 January 2020, sufficiently discharged its indebtedness to first respondent thus warranting a stay of execution and the setting aside of the writ issued on 7 July 2020. While first respondent is a self-actor she ought to understand, that, it is improper to insist on a sale in execution and thus render the decision of the court a brutum fulmen, particularly where the date of disposal of the matter has been agreed.

In any event, she suffers no prejudice as the property remains under attachment with costs for the suspension of the sale being to the charge of the applicant.

If she succeeds in opposing the application for stay of execution, she can continue with the execution, which is merely being suspended, and not set aside. However, if execution is allowed to continue and it transpires that the applicant had indeed settled the judgment debt in full, then, the harm to it would be irreparable as its property would have been sold to an innocent third party.

While it is understandable that the first respondent is frustrated at the delay in obtaining just satisfaction for the applicant, it cannot be reasonable to insist on the sale in execution as that makes the whole process an exercise in futility. Therefore, the balance of convenience favours the applicant.”

A consideration of the reasons by the learned judge in the lower court shows, that, the real dispute between the parties has not even been heard. Thus, the rationale for the applicant to insist on execution of the writ of 7 July 2020 has not yet been ventilated. There are issues of fact and law that have yet to be determined.

Indeed, if the applicant had not mounted these proceedings, the main dispute, which was scheduled for hearing on 8 October 2020, would have been decided by the High Court by now.

This means, that, there is not even an issue of the applicant not having exhausted her domestic remedies as there were no domestic remedies to resort to.

As explained by her ladyship in the judgment, the suspension of the sale was a reasonable intervention that would serve to achieve justice between the parties.

The court had to decide whether or not the first respondent had satisfied the judgment debt, and, in the interim, to ensure that the judgment would not be a brutum fulmen, the sale had to be suspended.

No prejudice ensued against either party; as the applicant, would, if successful, be able to have the sale continue and recover from the sale whatever the court would have decided was still owed.

As a consequence, the court is disabled from considering the first factor mentioned in the Rules, that of prospects of success. There is nothing to consider and determine due to the fact, that, the real dispute between the parties is pending before the court a quo.

The correct position is that proceedings between the parties are still pending in the High Court.

This, therefore, means that the application is ill-conceived and this court has, in several cases, pronounced on the imprudence of an applicant adopting this course of action.

The dicta in Chihava v Provincial Magistrate Mapfumo N.O. & Anor 2015 (2) ZLR 31…, are apposite. GWAUNZA JCC…, remarked:

“I, therefore, entertain no doubt, that, the certainty referred to above would be completely eroded were the courts to operate based on a literal and grammatical interpretation of section 85(1). This circumstance is not only highly undesirable, but it would also constitute an affront to the time-honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A);

…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.”

See also Mushapaidze v St Anne's Hospital & Ors CC18-17.

The above remarks are apposite in this case.

The High Court is seized with a very critical issue between the parties, viz: whether or not the first respondent has met its obligations in terms of the judgment obtained by the applicant.

The court a quo is not aware of these proceedings, or the fact that its directive is being impugned by the applicant.

A perusal of the founding affidavit to the main application will tend to show, that, the applicant is aggrieved by the grant of the stay of execution concerning the sale scheduled for 2 October 2020.

I do not read, from the substance of the affidavit, an allegation that the court a quo conducted itself in a manner that could be considered a violation of the applicant's rights to a fair hearing.

The complaints emanating from the affidavit focus on procedural and substantive issues regarding the order suspending the sale in execution.

In Bruce v Fleecytex Johannesburg CC 1998 (2) SA 1143 (CC) [4], the Constitutional Court of South Africa, in considering an application for direct access, made the following remarks:

“…,. If Bruce is entitled to any relief, she can obtain it from the High Court. In effect, what she is now seeking to do through the application for direct access is to appeal against the decision of Wunsh J on an issue that was not raised in the proceedings before him, and to avoid the normal appeal procedure by launching proceedings for direct access to this Court.

[22] KENTRIDGE AJ made it clear in his judgment in S v Zuma and Others [26] that applications for direct access are to be entertained in exceptional circumstances and not merely to avoid the consequences of incorrect procedures that have been followed. If, notwithstanding the pending appeal, Bruce is entitled to raise the constitutionality of section 180(3) of the Insolvency Act in separate proceedings, she can initiate such proceedings in the High Court; but, if she is not entitled to do so, she cannot avoid the consequences of her earlier omission by applying to this court for relief.

[23] I am satisfied, that, grounds for direct access have not been established and that this is not a proper case for the granting of such relief.”

There is a suggestion, that, the learned judge had indicated that the matter was not urgent.

This does not appear to be supported by the learned judge's reasons for its removal from the roll.

In any event, it is of no moment as the matter was filed as an urgent court application and not an urgent chamber application.

There is a difference in the manner of treatment of the two by the Registrar and the court itself.

An urgent chamber application must be placed before the judge in chambers upon its filing; whereas, an urgent court application must comply with the dies induciae as stated on the face of the application. It must be placed on the roll after the respondent or respondents, as the case may be, have been availed an opportunity to file papers in opposition.

DISPOSITION

I do not find it necessary to consider whether or not the applicant has established whether or not there is no other remedy available or if the matter cannot be dealt with without the calling of evidence.

The application seeks to challenge interlocutory proceedings, and, this is not permissible in the light of the authorities referred to above.

From the aforegoing, the applicant has not established, that, it is in the interests of justice that the application be granted.

The application must fail.

The first respondent has prayed that the applicant be mulcted with an order for costs.

In constitutional matters, it is not the norm that costs be awarded against the unsuccessful litigant. The first respondent has not suggested that the applicant is guilty of vexatious conduct or an abuse of court process. Nor has it been suggested that the application is frivolous. In the premises, it is my view that an order for costs is not warranted.

Accordingly, it is ordered, that, the application be and is hereby is dismissed with no order as to costs.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

The nature of a judgment is not determined by its characterisation but by its dictates and effects. One must look at its substance and true nature and not at its form....,.One must look to the reasons and orders of the court a quo to determine the effect of their substance....,.It ...

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dated 13 August 2020, striking off the roll the appellant's application for rescission in HC6771/19 of a default judgment granted in favour of the respondents in HC12074/16 and granting a consent order which dismissed an interdict granted against the respondents in HC6784/19.

At the hearing of the appeal, counsel for the first respondent (Rajendrakumar Jog) and counsel for the second and third respondents (Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) raised points in limine on the validity of the appellant's Notice of Appeal.

They submitted, that, there is no valid appeal before the court because the appeal was noted without leave of the court against an interlocutory order and was also noted against a consent order.

This judgment is restricted to the determination of these preliminary points.

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

The appellant (Technoimpex JSC) is a company duly incorporated in terms of the laws of Bulgaria. It is the registered owner of an immovable property in Harare, Zimbabwe known as Lot 12 of Lot 15 Block C of Avondale, commonly referred to as Bath Mansions Flats at number 32 Bath Road, Avondale, Harare held under Deed of Transfer number 1657/89.

In case number HC6784/19 it applied for an interdict against the first to the third respondents (Rajendrakumar Jog, Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) who it alleged wanted to steal its property.

The High Court granted the application. In arriving at the decision to grant the provisional order, it said:

“From the history of the matter that I outlined above, the applicant has always been the lawful owner of Bath Mansions Flats. The judgment I referred to (sic) showed he was successful in warding off the efforts of the first and second respondents to steal the property. For that reason, the applicant has a real right in the property. Once the property has been transferred to a third party, the applicant is likely to suffer irreparable harm. In this case, the second respondent has applied for a rates clearance certificate to enable her to transfer title of the property to third respondent. Such harm is apprehended. In my view, the balance of convenience favours the granting of the relief sought until a lasting solution to the saga is found. There is therefore no other effective alternative remedy other than granting the relief sought. The application will succeed and I grant the following order.

IT IS ORDERED THAT:

TERMS OF FINAL ORDER SOUGHT

INTERIM RELIEF:

“1. The 1st Respondent be and is hereby interdicted from transferring Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer No.1657/89 and currently held in favour of 1st Respondent under Deed of Transfer No.1080/2019 and certificate of registered title no.1081/2019 to 3rd Respondent or any other persons.

2. 1st, 3rd, 4th, and 5th Respondents be and are hereby interdicted from transacting on and/or facilitating any process for the transfer of Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer no. 1657/89 and currently held held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019 unless with specific leave of the court hearing this matter.

3….,.

4. The Registrar of Deeds and all the Respondents cited herein be and are hereby interdicted from facilitating or passing further transfer of Lot 12 of Lot 15 Block C of Avondale, Harare previously held under Deed of Transfer Number 1657/89 and currently held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019, commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare.

5. The 1st, 2nd, and 3rd Respondents be and are hereby interdicted from advertising, selling, pledging, ceding, mortgaging, donating or in any way encumbering or alienating Lot 12 of Lot 15 Block C Avondale, Harare.

6. Pending the determination of this matter and High Court Case no. 2012/2018, whichever is the later, the Sheriff of the High Court be and is hereby directed to serve notices, court process, pleadings, orders issued by any person or litigant (sic) be served on Applicant's legal practitioners mentioned in para 3 above.

7. Pending the determination in High Court Case no. HC12074/16 or the application for rescission of default judgment granted in High Court matters HC2972/17 and HC11246/17 whichever will be the later, the Sheriff of Zimbabwe be and is hereby ordered not to carry out any eviction at 32 Bath Road Avondale, Harare in terms of any litigation commenced after 13 September 2016 by any person without the leave of the Court hearing the present matter.”

It is apparent from the provisional order that it had various interdicts protecting the appellant from possible harmful conduct by the first, second, and third respondents.

In subsequent proceedings before MUSITHU J for the confirmation of the provisional order in HC6784/19, the parties agreed that the provisional order's fate shall depend on the court's decision on the merits in the application for rescission in HC6771/2019. The court a quo commented on that agreement as follows:

“Mr Magwaliba advised that case Number HC6784/19 was set down before Musithu J for the confirmation or discharge of the Provisional Order and that the parties agreed that the Provisional Order be extended until a determination is made in this matter. In the event that this Court finds for the applicant, the parties agreed that the Provisional Order be confirmed, and that if the court finds against the applicant, the Provisional Order will be discharged.

Ms Sanhanga, for the first respondent, and Mr Uriri, for the second and third respondents, confirmed the above terms of the agreement. I have had sight of the order issued by Musithu J in HC6784/19. It indeed extends the Provisional Order in HC6784/19 until the determination of the present matter.”

In HC6771/19 the court a quo, in determining the application before it, said:

“I have reached the conclusion, that, the applicant has not shown the deponent's authority by furnishing a resolution. The effect of this is that there is no founding affidavit before the court. A court application must be supported by a founding affidavit. Without a founding affidavit there is no application.

All things being equal, that finding is such that I did not have to dispose of the question of locus standi which I determined only because its factual basis was related to the question of lack of authority. The primary basis of my judgment is that the application is not authorised. It is thus a nullity. There is therefore, nothing before me to dismiss. The only appropriate order is an order striking the matter off the roll.”…,.

It, in the result, ordered as follows:

“1. That, the application is struck off the roll with costs.

2. The Provisional Order granted in case number HC6784/19, on 9 October 2019, is, by consent of the parties, discharged with costs.”

Aggrieved by this decision, the appellant noted the present appeal.

Before the appeal could be heard on the merits, counsels for the respondents raised preliminary issues on the validity of the appellant's Notice of Appeal. They submitted, that, the notice of appeal is invalid because it appeals against a consent order and an interlocutory order.

SUBMISSIONS MADE BY THE PARTIES ON THE PRELIMINARY ISSUES

Counsel for the first respondent argued, firstly, that the notice of appeal was defective as the appellant sought to appeal against an order made by consent in HC6874/19.

Secondly, she submitted that the appeal was also defective in that it related to an interlocutory order of which leave to appeal was neither granted nor sought.

Lastly, she submitted that the matter should be struck off the roll as there is no valid appeal before the court.

Counsel for the second and third respondents agreed with the first respondent's counsel.

He submitted, that, the appellant's representative's reliance on a power of attorney instead of a resolution by the Board of the appellant's Directors rendered the appellant's application in HC6711/19 fatally defective.

He submitted that the court a quo therefore correctly struck the application off the roll.

He further argued, with reference to the discharge of the provisional order as a result of the striking off the roll of HC6771/19, that, a decision is not only a decision on the merits but can also be a decision on the basis of technical objections.

Counsel for the second and third respondents submitted, that, the court a quo made a determination on fatal procedural defects, which is a decision of the court against the appellant, which triggered the coming into operation of the parties agreement by consent before MUSITHU J.

Counsel for the second and third respondents also agreed with the first respondent's counsel, that, there was a consent order which could not be appealed against, and, once that is accepted, the notice of appeal becomes invalid.

He therefore submitted that his clients are entitled to costs as they have been forced to defend themselves against an invalid appeal.

In response, counsel for the appellant argued, that, the order of the court a quo was not by consent as the appellant agreed to a course of action and not to the result of the court a quo.

He also submitted, that, consent to a course of action does not amount to a concession to the correctness of the judgment.

He thus submitted, that, since the judgment of the court a quo was not a consent order, it could be appealed against.

In respect of the interlocutory order, he argued that it had a final effect and could thus be appealed against without leave of the court.

THE ISSUES

Two issues arise for the determination of the preliminary points raised. The issues for determination are:

1. Whether or not the appellant consented to the order granted in paragraph 2 of the court a quo's order and could therefore not appeal against it.

2. Whether or not the appellant can appeal against the order issued in HC6771/19 without the leave of court.

THE LAW

The law applicable to the facts of this case is as follows:...,.

It is also trite, that, a party to proceedings in which the court grants an interlocutory order cannot appeal against such an order without the leave of the court.

Section 43(1) of the High Court Act provides as follows:

“43 Right of appeal from High Court in civil cases

(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 -

(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.”…,.

There are exceptions to the requirement for leave to appeal against an interlocutory order. The three exceptions are:

(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.

A party can therefore only appeal against an interlocutory order, without leave of the court, if the decision appealed against falls under one of the three exceptions....,.

2. WHETHER OR NOT THE APPELLANT CAN APPEAL AGAINST AN INTERLOCUTORY ORDER ISSUED IN HC6771/19 WITHOUT THE LEAVE OF COURT

In arriving at the decision to strike the matter off the roll, the court a quo said:

“I have reached the conclusion that the applicant has not shown the deponent's authority by furnishing a resolution. The effect of this is that there is no founding affidavit before the court. A court application must be supported by a founding affidavit. Without a founding affidavit there is no application.

All things being equal, that finding is such that I did not have to dispose of the question of locus standi which I determined only because its factual basis was related to the question of lack of authority. The primary basis of my judgment is that the application is not authorised. It is thus a nullity. There is therefore nothing before me to dismiss. The only appropriate order is an order striking the matter off the roll.”…,.

The application before the court a quo was a nullity because the deponent to the founding affidavit had no authority to represent the company.

The appellant's failure, to present before the court a quo a resolution by the appellant's Board of Directors, authorising him to represent the appellant, was fatal to the application.

There was nothing before the court a quo to dismiss, and, the only appropriate order was to strike the matter off the roll.

In the light of the above considerations, and the law as provided by section 43(2)(d) of the High Court Act, I am of the view that the appellant had no right to appeal against the court a quo's interlocutory order without the leave of the court.

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

“(2) No appeal shall lie -

(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.”…,.

The exceptions under (i) to (iii) do not apply to the striking off of the application in HC6771/19 from the roll.

The appeal against paragraph 1 of the court a quo's order is therefore a nullity.

If there was no matter before the court a quo, there is therefore also nothing before this Court.

In Jensen v Acavalos 1993 (1) ZLR 216 (S), KORSAH JA…, said that the reason why a fatally defective notice of appeal could not be amended was that:

“…, it is not only bad, but incurably bad.”

In casu, there was no proper resolution, thus, there was no proper application for rescission before the court a quo.

The appeal before us, in respect of the interlocutory order, is fatally defective and cannot even be amended.

In ZOU v Ndekwere SC52-19…, GARWE JA…, commenting on defective processes said:

“Once the court had determined that all the grounds of appeal before it were attacking factual findings and not issues of law, it should have found that there was, therefore, no proper appeal before it.

And, if there was no proper appeal before it, there was, in fact, nothing before it. And, if there was nothing before the court, there was therefore nothing to dismiss. The only appropriate course of action, in these circumstances, would have been to strike the matter off the roll.”…,.

It is clear, that, the notice of appeal against the striking of the application in HC6771/19 off the roll, in this case, does not comply with section 43(1) and (2)(c)(i) of the High Court Act. It is fatally defective.

The matter must therefore be struck off the roll.

SC45-22 : RUTSATE RUTSATE vs NDAVENI WEDZERAI and OTHERS
Ruled By: GUVAVA JA, BHUNU JA and KUDYA JA

This is an appeal against the whole interlocutory judgment of the High Court (the court a quo) sitting at Harare dated 5 June 2019.The court a quo found that it had jurisdiction to hear and determine the appeal involving a chieftainship dispute.Leave to appeal was granted by the court a ...

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

HERBSTEIN Van WINSEN “The Civil Practice of the Supreme Court of South Africa, 4th Ed...,. states:“A mandamente van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in spoliation applicant ...

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

On 4 November 2021 the High Court (“the court a quo”) struck off the roll with costs on a higher scale an urgent application filed by the appellant for an order directing the third respondent (Equity Properties (Pvt) Ltd) to forthwith surrender to the fourth respondent (Registrar of Deeds N.O.) a replacement Deed of Transfer number 9068/2008 and barring the third respondent from using such replacement Deed of Transfer in lieu of the original on the pain of costs on the adverse scale.

This appeal is against that striking off judgment which the appellant would like to have set aside and substituted with the substantive relief it unsuccessfully sought in the court a quo.

BACKGROUND FACTS

The facts relevant to the resolution of this appeal are largely common cause.

The first respondent (Deposit Protection Corporation) is the liquidator of Interfin Banking Corporation (“Interfin”) which is undergoing final liquidation. The second respondent (Kiitumetsi Zawanda) is the Company Secretary of the first respondent whom the appellant elected to join as a party to the proceedings, in her personal capacity, for unclear reasons.

The third respondent (Equity Properties (Pvt) Ltd) is the owner of certain immovable property known as Lot 3 of Bannockburn, Harare which it holds by Deed of Transfer Number 9068/2008.

As security for a debt owed to Interfin Banking Corporation (Interfin), the third respondent surrendered its title deed to Interfin which registered Mortgage Bond No.5818/2011 on the title deed.

In turn, Interfin obtained certain sums of money from the appellant which it secured by the third respondent's title deed surrendered to the appellant.

Since then, the appellant has tenaciously held onto the title deed in question despite demand for its release made by the liquidator in the discharge of its duties as such.

Indeed, the liquidator was constrained to demand the surrender of the title deed after the third respondent acquitted all its indebtedness to Interfin, the company in liquidation, thereby obliging the liquidator to cancel the mortgage bond.

Following the repayment of the loan, the liquidator was also obliged to hand the title deed over to the third respondent.

Bereft of any sense of solution, the liquidator applied for a replacement title deed from the Registrar of Deeds, the fourth respondent herein.

The fourth respondent acceded to the application and issued a replacement title deed on 7 September 2021.

That triggered the present litigation.

The appellant moved swiftly and filed an urgent application for a mandamus on 13 October 2021.

As I have said, it sought, in the interim, the immediate surrender to the fourth respondent of the replacement title deed and the barring of the third respondent from using it for whatever purpose.

The basis of the application was that, not only were the respondents aware that the appellant was in possession of the original title deed, the third respondent was selling properties to individuals using the replacement title deed.

According to the appellant, the third respondent's conduct was causing irreparable damage and undue hardship to it by dissipating the immovable property.

The application was opposed by the first, second, and third respondents.

They raised a number of preliminary objections, chief among which were the failure of the appellant to obtain leave of the court to sue the first respondent, the liquidator of a company in liquidation, and the misjoinder of the second respondent in her personal capacity.

The court a quo found that the application was improperly before it by reason that no leave to sue had been sought and obtained before embarking on litigation.

In arriving at that conclusion, the court a quo followed the case of Chikura N.O. & Anor v Alshams Global BVI Ltd SC23-20 in which this Court remarked…,.:

“As correctly observed, in part, by the court a quo, leave of the court is required before proceeding against a company and/or bank in liquidation.

This is so because the broad purpose of the law of insolvency, and the winding up of companies, is to ensure due distribution of the insufficient assets of the debtor company amongst the competing creditors under the watchful eyes of the court. Thus, the position is settled at law that an order placing an estate or a company in liquidation has the effect of creating a concursus of the creditors of the insolvent and no creditor can thereafter do anything that will alter the rights and interests of other creditors without the leave of the court.

Unsupervised and unsanctioned litigation and proceedings against the insolvent will disturb the due distribution of the insufficient assets and remove the role of the court from the process.

It may also be added, that, the leave of the court is necessary in such circumstances as a broader consideration of protecting the economically fragile company from unnecessary litigation quite apart from merely protecting the interests of the creditors.

It being common cause that leave of the court was not sought and obtained prior to the institution of the proceedings a quo, the appeal succeeds on this basis alone.”

Indeed, as in the present case, the respondent in that case had sued the liquidator of Interfin Banking Corporation (Interfin) without the leave of the court.

It argued, that, the cause was not against the Bank but was against the liquidator as an administrative authority under the Administrative Justice Act [Chapter 10:28].

The court a quo refused to be drawn to consider the merits of the application. It reasoned, at paragraph 20 of its judgment:

“There are set procedures that are followed by a creditor to recover a debt from a company under liquidation.

Leave to sue is necessary for a party to show the court why its particular case needs a suit outside the normal procedures that are there for recovering a debt by creditors through the appointed liquidator.

It is the court that is tasked with assessing the merits of any application, including its prospects of success, based on the sufficiency of evidence placed before it. Indeed, it would have been under such an application for leave to sue that an issue such as that raised by respondents herein, that the company is not registered locally, would have been considered under prospects of success in determining whether or not that leave to sue should be granted.”

THE APPEAL

The appellant was thoroughly disgruntled by that outcome.

It launched this appeal on six (6) grounds, including an attack on the conclusion of the court a quo that leave to sue was required.

Although there are multiple grounds, the issue for determination is very narrow indeed.

It is whether there was need for leave to be sought and obtained before filing the application against the liquidator.

I should add, that, prior to the date of hearing of the appeal, the first and third respondents gave notice of objections in terms of Rule 51 of the Supreme Court Rules 2018.

After hearing counsel on the objections, this Court requested to be addressed on the merits while parking its decision on the preliminary objections.

This was done in the interest of expediency to avoid reconvening again depending on the outcome of the preliminary objections.

Accordingly, with the consent of the parties, the court heard the merits of the appeal on the understanding that they will only be related to in the event of the preliminary objections not being upheld.

I proceed therefore to consider those objections.

Counsel for the first and second respondents premised his objections on three (3) points:

(i) First, counsel submitted that the judgment of the court a quo sought to be impugned, to the extent that it merely struck the applicant's application off the roll for want of leave to sue the liquidator, is not appealable at all. It does not meet the requirements of a judgment that can be appealed against.

In advancing that argument, reliance was placed on two South African authorities. The first is the case of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) which set out three attributes of an appealable judgment. These are that;

(i) The decision must be final in effect and not susceptible to alteration by that court;

(ii) It must be definitive of the rights of the parties by granting definite and distinct relief; and

(iii) It must have the effect of disposing of at least a substantial portion of the relief claimed in the proceedings.

The first and second respondents case is that none of the foregoing three requirements of an appealable judgment exist in the impugned judgment because the court a quo deliberately refrained from delving into any of the merits of the dispute. Instead, it was content to strike off the application on the basis that leave was not obtained. The court a quo will still determine the merits once leave is obtained.

The other authority cited by counsel for the first and second respondents is Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A)…, where the following remarks were made:

“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.”…,.

Contesting that preliminary objection, counsel for the appellant submitted that whenever there is a sentence or judgment of the court that a litigant is unhappy with, there is a right to appeal.

In counsel's view, it would be a sad day indeed, were certain matters be made to end at the court a quo without testing their correctness on appeal.

(ii) Second, counsel for the first and second respondents submitted, that, the judgment of the court a quo, that the application was improperly before it for want of leave to sue the liquidator, and therefore striking it off the roll, was interlocutory in nature. For that reason, so it was argued, it could not be appealed without the leave of the court a quo.

In counsel's view, the striking off of the application was merely a procedural step which, at best, was merely interlocutory. To that extent, any challenge of the judgment is regulated by section 43(2) of the High Court Act.

Counsel for the third respondent also took a similar preliminary objection based on absence of leave to appeal.

She submitted, associating herself fully with submissions made on behalf of the first and second respondents, that, for all intents and purposes, the striking off was interlocutory.

Counsel maintained, that, the appeal is improperly before the court because leave to appeal was not sought.

In addition, counsel for the third respondent urged the court to take judicial notice of proceedings instituted by the appellant in case number HC6264/21.

According to counsel, it is an application, exactly the same as the one forming the basis of this appeal, brought by the appellant after its initial application was struck off the roll. It seeks the same relief, except that in it the appellant did not join the executor and its Company Secretary.

It was submitted that this was a clear case of peremption.

The right of an unsuccessful litigant to appeal, it was argued, is perempted when that litigant, at the same time, complies with the judgment.

By filing the same application, without citing the first and second respondents, the appellant should be taken as having accepted the correctness of the judgment a quo.

In response, counsel for the appellant did not directly address the question whether the judgment was interlocutory and therefore requiring leave of the court a quo before an appeal could be noted.

He submitted, that, in the body of the judgment, the court a quo commented on the merits of the matter. For that reason, the court is at liberty to entertain the appeal even though leave was not sought.

In making that argument, counsel for the appellant relied on the case of Portland Holdings Ltd v Tupelostep Investments (Pty) Ltd & Anor SC03-15 in which an application was adjudged by the court a quo as not urgent. The court a quo had however gone on to dismiss the application instead of striking it off the roll to enable the applicant therein, if it so wished, to proceed with the application as an ordinary application.

Apart from that, the court a quo had also made several comments on the merits of the matter and also overlooked most of the relevant evidence pointing to the urgency of the application.

This Court was clear that “the matter ought to have been dealt with on the basis of urgency.”

Taking all the mistakes made a quo into account and that the Appeal Court was in as good a position as the court of first instance to determine the matter and substitute its own discretion, this Court allowed the appeal. It granted the relief sought in the application.

Counsel for the appellant urged of this Court the adoption of the same approach because the court a quo, in the present case, also made comments on the merits of the matter.

He submitted that this Court should grant the full relief sought a quo even though the court a quo did not relate to the merits or the relief sought.

Regarding preemption, it was submitted on behalf of the appellant that its grief with the judgment a quo was recorded in the notice of appeal filed in this Court. In counsel's view, the fact that subsequent to the filing of that notice of appeal, the appellant saw it fit to return to the court a quo with another application did not signify satisfaction with the judgment appealed against.

This is so, so the argument goes, because the parties in the subsequent application are different from those in the present matter.

ANALYSIS

Regarding the issue whether the judgment of the court a quo is appealable: my view is that the procedure for appealing in this jurisdiction is heavily regulated.

As shall become apparent shortly, even the orders of the nature of the one which is the subject of the present appeal, are regulated by statute. As such, if the legislature intended to constrain any right of appeal it would have said so in specific terms.

Indeed, even the authority relied upon by counsel for the first and second respondents, Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) presupposes that the restrain from appealing certain court orders has to be imposed by the law-giver before the right of appeal can be restricted or prohibited.

I am therefore not persuaded by the first leg of the first and second respondents preliminary objection. It is accordingly rejected.

In my view, that position accords with the constitutional right of access to the courts for the resolution of any dispute enshrined in section 69(3) of the Constitution.

The question whether the judgment a quo is interlocutory or not is central in the resolution of the second leg of the preliminary objection.

Section 43(2) of the High Court Act [Chapter 7:06] governs appeals against interlocutory judgments or orders. It provides:

“(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.”

There is little doubt that the phrase “interlocutory order” is one that has vexed the legal mind for a considerably long time.

Its definition has eluded the courts, but, there is a very helpful discussion of it by DEVITTIE J in Mwatsaka v ILC Zimbabwe 1998 (1) ZLR 1 (H) where the learned Judge reviewed a number of authorities discussing the phrase “interlocutory orders”.

He referred to the reasoning of CORBETT JA…, in South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, where the court remarked:

“I think, nevertheless, the general effect of this series of decisions, together with consistent judgments of other courts, may be summarized as follows:

(a) In the wide and general sense, 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. But, orders of this kind are divided into two classes:

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

(ii) Those known as simple (or purely) interlocutory orders proper or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at p890; Steytler N.O. v Fitzgerald supra at pp303, 311, 325-6, 342; Globe & Phoenix Gold Mining Co. Limited v Rhodesian Corp Ltd 1932 AD 146 at pp153.”

The court went on, at p8C, relying on the authority of Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A), to make the point that the test as to whether an interlocutory order is one which is preparatory or procedural and therefore not appealable unless it is such that it disposes of any of the issues or any portion of the issue in the main action or suit or it irreparably anticipates or precludes some of the relief which would or might be given at the hearing.

As stated in Mwatsaka v ILC Zimbabwe 1998 (1) ZLR 1 (H), those interlocutory orders which do not meet the criteria of non-appealable orders set out in Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) are termed simple interlocutory and are appealable with leave in terms of section 43(2) of the High Court Act.

It occurs to me that the order striking off the appellant's application from the roll was interlocutory in the sense that it did not determine any issue which was the subject of the main suit.

It was, however, appealable in the sense that it brought the entire edifice of the application to a screeching halt.

The application would not proceed any further until such time that the appellant sought and was granted leave to sue.

The judgment left the entire dispute unresolved.

While the appellant was seeking an interdict, the interdict was neither granted nor refused thereby disqualifying the matter from one of the exceptions to the requirement for leave to appeal to be sought.

It being an interlocutory judgment or order which did not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act, it means that leave should be sought and obtained from the judge a quo, or a judge of this Court, before an appeal can be brought to this Court.

On the issue of pre-emption raised by counsel for the third respondent, while it is correct that generally the court is always entitled to make reference to its own records and proceedings, see Mhungu v Mtindi 1986 (2) ZLR 171 (S), and it is not disputed by the appellant that it filed another application which excluded the first and second respondents, my view is that the issue was raised mainly to buttress the objection on the need for leave. In addition, it was relied upon to justify the prayer for costs on the adverse scale.

Having arrived at the conclusion that leave of the court was required to lodge the appeal, I find it completely unnecessary to engage the aspect of peremption beyond what I have done. Clearly, it does not change the fact that the appeal is improperly before the court.

DISPOSITION

The judgment or order striking off the application, by reason of the failure of the appellant to obtain leave to sue the liquidator of Interfin Banking Corporation (Interfin), a company in liquidation, was interlocutory in nature.

The court a quo summarized the respective positions of the parties but simply did not engage the merits at all. It left all the issues in dispute unresolved, and, it is open to the court a quo to engage and determine all the issues once leave to sue has been sought and granted.

The nature of the judgment or order in question is such that it does not meet the criteria of a non-appealable judgment or order.

While it is a simple interlocutory judgment or order it is appealable, but, only with leave as required by section 43(2)(d) of the High Court Act. Such leave not having been sought and granted, it was incompetent for the appellant to purport to appeal to this Court.

As a corollary to that, the matter is improperly before the court. It ought to be struck off the roll....,.

1. The matter is struck off the roll.

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of ...

FACTUAL BACKGROUND

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

TERMS OF THE FINAL ORDER SOUGHT

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Interlocutory Judgments & Nature and Effect of Relief Granted

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CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC45-22 : RUTSATE RUTSATE vs NDAVENI WEDZERAI and OTHERS
Ruled By: GUVAVA JA, BHUNU JA and KUDYA JA

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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Law Portal Zimbabwe

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Interlocutory Judgments & Nature and Effect of Relief Granted

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU Ruled By: GWAUNZA JA

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST Ruled By: KAMOCHA J

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC45-22 : RUTSATE RUTSATE vs NDAVENI WEDZERAI and OTHERS Ruled By: GUVAVA JA, BHUNU JA and KUDYA JA

Appealed SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O. Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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Law Portal
Zimbabwe

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC45-22 : RUTSATE RUTSATE vs NDAVENI WEDZERAI and OTHERS
Ruled By: GUVAVA JA, BHUNU JA and KUDYA JA

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA