This is an appeal against the judgment of the Fiscal Appeal
Court dismissing an application by the appellants to set aside a subpoena duces
tecum issued by the Registrar of that court on 9 February 2015.
The first appellant is Netone Cellular (Pvt) Ltd (Netone)
and the second appellant is its Managing Director (Reward Kangai), while the
first respondent is Econet Wireless (Pvt) Ltd (Econet) and the second respondent
is the Zimbabwe Revenue Authority (ZIMRA).
The subpoena in question was issued by the Registrar
pursuant to an order of the court in terms of section 6 of the Fiscal Appeal
Court Act [Chapter 23:05]. It directed Reward Kangai to testify and produce documents
relating to customs duty on certain base stations imported by Netone from
October 1998 to November 2013. This testimony was required by Econet for the
purpose of its appeal in the main case (FA 01/14) in which it had appealed
against the decision of the Zimbabwe Revenue Authority imposing retrospective
duty of US$15.8 million and a 300 per cent penalty of US$47.6 million on the
importation of base station components from 2009 to 2013. Econet had originally
intended to call a former clearing agent who had cleared components on behalf
of Netone to show that it was being discriminated against in the imposition of
duty by the Zimbabwe Revenue Authority.
Netone objected to this clearing agent being called to
testify, while the Zimbabwe Revenue Authority claimed taxpayer privilege and
that it was not the custodian of the documents required.
In their application to set aside the subpoena, the
appellants challenged its issuance on the grounds that it was invasive and also
incompetent in its scope and reach.
In a very detailed judgment, the court a quo ruled that the
requested documents were relevant to the determination of the real issues
between Econet and the Zimbabwe Revenue Authority in the main appeal. It
reasoned that the appellants were competent and compellable witnesses and that
their right to privacy was countervailed by Econet's right of access to
information and right to a fair trial. Moreover, although the collation of the
documents was arduous it was not an impossible task since the documents
required had been particularised. They were necessary to establish whether or
not the Zimbabwe Revenue Authority was treating Econet in a discriminatory
fashion. Consequently, the court dismissed the application and ordered each
party to bear its own costs.
The grounds of appeal herein may be summarised as follows:
(i) That the evidence in question could be obtained from the
Zimbabwe Revenue Authority itself;
(ii) That the subpoena issued was unduly oppressive and
invasive of Netone's right to privacy as well as being vexatious in its
specific identification of Reward Kangai; and
(iii) That the subpoena was too generalised and a trawling
retaliatory measure in abuse of court process and in breach of the right to
protection of the law.
The appellants pray that the judgment of the court a quo be
overturned and substituted so as to grant their application to set aside the
impugned subpoena with costs.
At the hearing of the appeal, and pursuant to his heads of
argument, counsel for the first respondent…, raised the point in limine that
the subpoena issued by the court a quo was purely administrative and
interlocutory in nature.
He cited several English cases in support of this position
and submitted that since no leave to appeal had been obtained, as required by section
11 of the Fiscal Appeal Court Act [Chapter 23:05] as read with section 43(2)(d)
of the High Court Act [Chapter 7:06], the present appeal was improperly before
the Court. It should therefore be struck off the roll with costs.
Counsel for the appellants countered that the judgment of
the court a quo was final and definitive in nature, and, as such, did not
require leave to appeal. He submitted that the dispute as to compliance with
the contested subpoena was res judicata and incapable of being revisited by
that court. The present dispute between the appellants and the first respondent
was divorced from the main matter between the first and second respondents. The
preliminary point should therefore be dismissed with costs.
After having adjourned to consider these submissions, the
Court took the view that the preliminary issue raised was of sufficient
procedural importance to merit further and fuller written argument focusing on
relevant statute law and decided cases on leave to appeal in England and South
Africa. Counsel for the appellants and the first respondent were accordingly
directed to file supplementary heads of argument on the subject within the
following four weeks. Judgment on the preliminary point taken by the first
respondent was reserved.
Applicable
Statute Law
As intimated at the outset, section 6 of the Fiscal Appeal
Court Act [Chapter 23:05] regulates the summoning and privileges of witnesses
and the production of documents:
“(1) The Court shall have power
to summon witnesses, to call for the production of and grant inspection of
books and documents and to examine witnesses on oath.
(2) A subpoena for the
attendance of witnesses or the production of books or documents shall be signed
by the Registrar of the Court and served in the same manner as if it were a
subpoena for the attendance of a witness at a civil trial in a Magistrates' Court.
(3) Any person subpoenaed to
give evidence or to produce any book or document or giving evidence before the
Court shall be entitled to the same privileges and immunities as if he were
subpoenaed to attend or were giving evidence at a trial in the High Court.”
Section 11 of the Fiscal Appeal Court Act [Chapter 23:05]
provides for appeals from decisions of the Fiscal Appeal Court to the Supreme
Court as follows:
“An appeal from any
decision of the Court shall lie to the Supreme Court in accordance with the law
and Rules of Court for the time being governing appeals from the High Court to
the Supreme Court in civil cases.”
Section 43 of the High Court Act [Chapter 7:06] governs
appeals from that court to this Court in civil cases. With specific reference
to interlocutory matters, subsection (2)(d) of section 43 of the High Court Act
[Chapter 7:06] stipulates that:
“(2) No appeal shall lie -
(a)…,.;
(b)…,.;
(c)…,.;
(d) From an interlocutory order or interlocutory judgment made or
given by a judge of the High Court, without the leave of that judge or, if that
has been refused, without the leave of a judge of the Supreme Court, except in
the following cases -
(i) Where the liberty of the
subject or the custody of minors is concerned;
(ii) Where an interdict is
granted or refused;
(iii) In the case of an order on
a special Case Stated under any law relating to arbitration.”
Also relevant for present purposes is section 6 of the
Supreme Court Act [Chapter 7:13]:
“In any matter relating to
records, practice and procedure for which no special provision is contained in
this Act or in Rules of Court, the matter shall be dealt with by the Supreme Court
or a judge thereof as nearly as may be in conformity with the law and practice
for the time being observed in England by the Court of Appeal.”
In South Africa, the position on appellate procedure at the
turn of the last century was regulated by section 22 of the Transvaal
Proclamation No.14 of 1902 which gave a right of appeal to the Supreme Court of
Transvaal from any final order granted or judgment pronounced by a judge siting
in chambers. This was repeated in Rule 4(a) of the Rules of the Supreme Court,
but Rule 91 provided that there could be no appeal, even with leave, from any
interlocutory order granted by a judge in chambers.
See Pretoria Racing Club v Van Pietersen 1907 TS 687…,.
The above position was later modified in the South African
Supreme Court Act No.59 of 1959. In terms of section 20(1)(a) as read with section
20(2)(b), in relation to appeals from a single judge of any Division to the
full court of that Division, an interlocutory order was not subject to appeal
save with the leave of the court which gave the order. As regards any final
order made by a single judge, no leave to appeal was required.
In contrast, by virtue of section 21(2)(a) of the Act,
all appeals to the Appellate Division from any decision given by any Divisional
Court required the leave of that court or, if such leave was refused, the leave
of the Appellate Division.
Therefore, it was not necessary to draw any distinction
between interlocutory and final orders appealable to the Appellate Division
insofar as leave to appeal was concerned.
The advent of the Appeals Amendment Act No.105 of 1982
effectively obliterated the distinction for all appeals, whether lodged with a Divisional
Court or with the Appellate Division. Sections 7 and 8 of the 1982 Act
substantially replaced sections 20 and 21 of the 1959 Act so as to render all
appeals subject either to the leave of the court whose judgment or order is
appealed against or to the leave of the Appellate Court. In effect, “all
judgments and orders, whether final in effect or not, are now appealable with
leave.”
See Priday t/a Pride Paving v Rubin 1992 (4) SA 541 (C)…,.
In England, the position that pertains in respect of leave
to appeal is markedly different from that which obtains in South Africa.
Before 1981, section 31(1)(i) of the Supreme Court of
Judicature (Consolidation) Act 1925 provided that no appeal would lie from any
interlocutory order or judgment made or given by a judge without the leave of
the judge or of the Court of Appeal. The 1925 Act, together with other
enactments relating to the Supreme Court, was amended and consolidated by the
Supreme Court Act 1981 [Chapter 54]. In terms of section 18(1)(h) of that
Act, no appeal lies to the Court of Appeal from any interlocutory order or
judgment made or given by the High Court or any other court or tribunal,
without the leave of the court or tribunal in question or of the Court of
Appeal – except in specified cases.
Two of the exceptions to the general rule are virtually
identical to the exceptions enumerated in section 43(2)(d) of our High Court
Act.
Relevant
Case Authorities
In South Africa, as I have already noted, there was
initially no right of appeal against interlocutory orders; that right being
confined to appeals against final orders or judgments only. In Pretoria Racing
Club v Van Pietersen 1907 TS 687, SMITH J observed…, that it was not possible
to lay down principles which will differentiate the one class from the other
under every state of facts and that the court must decide in each case what the
nature of a particular order is.
At 694-695, the learned judge noted that the distinction
between interlocutory and final orders, as giving a right of appeal, was
recognised in both England and South Africa. However, at 696, he opined as
follows:
“It must be borne in mind, in considering the view adopted
by the English courts, that the distinction is of importance under the English
rules with regard to the time within which an appeal should be brought, and
not, as here, whether an appeal lies at all. By adopting the same construction
here as has been placed on the words by the English courts, we should
materially restrict the number of orders from which an appeal could be brought,
and the result might be to create serious inconvenience.”
Relying on this dictum, counsel for the first respondent
argues that the South African emphasis on the finality or otherwise of an order
was necessitated so as to avoid the incidence of irremediable loss and the
injustice that could arise from a total denial of the right to appeal. The
position in England is different because the right of appeal against
interlocutory orders, albeit with leave, was never completely denied.
Accordingly, he submits that since the wording of section
18(1)(h) of the English Supreme Court Act 1981 is the same as that of its
predecessor as well as section 43(2) of our High Court Act, it is the English
position that should obtain in this jurisdiction. In this regard, he places
particular reliance on the decision of the Court of Appeal in Senior v
Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA).
The facts of that case are as follows.
The plaintiff, in an action in the County Court, sued the
police for damages for assault in the course of the dispersal of a three-day “pop”
festival. Before the trial, he sought by way of a witness summons, issued by
the Registrar under the County Court Rules, the production and exhibition by Independent
Television News Ltd of all film and video, both transmitted to the public and
untransmitted, taken by its camera crews of the dispersal. The summons was
defective and invalid, but, during the trial, the judge directed that a fresh
summons be issued requiring Independent Television News Ltd to produce all the
film negative of the events at the festival. Independent Television News Ltd,
through its Director, objected to produce the untransmitted film and asked for
leave to appeal. The judge refused to alter the order and refused leave to
appeal. He then concluded the trial in favour of the plaintiff - without having
seen the untransmitted film. On his direction after the trial, the Registrar
issued a summons under the County Court Act requiring Independent Television
News Ltd to show cause why a fine should not be imposed for not obeying the order.
On an ex parte application by Independent Television News
Ltd asking that the order be set aside, the Court of Appeal treated the
proceedings as an application for leave to appeal from the judge's order. The
court granted leave to appeal and then allowed the appeal. It was held that the
order to produce all film negative taken during the three days of the festival
was so wide as to be oppressive and should therefore be set aside. The only
point of dissent among the learned judges was whether or not the film was a
“document” for the purposes of a subpoena duces tecum within the prescribed
procedure for such a summons.
LORD DENNING MR perceived that there were two points to be
considered, to wit;
(i) The jurisdiction of the County Court to order the production
of the film and show it; and, if the court could order it,
(ii) What were the principles it should have applied.
On the jurisdictional point, the learned judge held that
both the High Court and the County Court had inherent jurisdiction to order or
decline and refuse the production of films and the necessary apparatus. He
proceeded to opine, at 32H-33B, as follows:
“If the judge makes an order with which the witness is
aggrieved, the witness will have an appeal to this court. Although he is not a
party to the suit, he is a person who is aggrieved by the order: and he is
entitled, by leave, to appeal against it….,. He must obtain leave either from
the judge or from this court: but he cannot appeal without such leave: see
section 31(1)(i) of the Supreme Court of Judicature (Consolidation) Act 1925.
…,. In my opinion, leave is required from the County Court
judge or this court for appeals from interlocutory orders - even on a point of
law.”
ORR LJ postulated that the first question on appeal was
whether any appeal lay in law against the judge's direction that a fresh
summons duces tecum should issue.
He answered the question, at 35G-H, as follows:
“[In] my judgment, it is clear that the remedy of a person
served with a witness summons or a summons duces tecum under Order 20, r. 8, of
the County Court Rules, the issue of which, in my judgment, is obligatory on
application duly made and is an administrative and not a judicial act, is to
apply to set it aside…, and not by way of appeal; there being, if the court
should refuse to set it aside, a right of appeal arising in the proceedings or
matter constituted by the summons itself.”
SCARMN LJ also addressed the nature of a summons duces
tecum under the County Court Rules and observed as follows, at 39E-40A, 40F-G
and 42H-43A:
“I think it is clear that the County Court Rule, upon its
true construction, requires of the Registrar an administrative, not a judicial
act….,. The County Court Rule (Ord. 20, r. 8) says that the Registrar shall
issue the summons: it does not require of him an order made judicially, but
lays on him a duty to be performed in the office upon production of certain
specified documents. This is a classic form of administrative duty.”
“In my view, therefore, the principle is the same in the County
Court and High Court. The subpoena or summons issues as of course without the
need for any order of the court: but the witness or person served has the right
to apply to set it aside.”
“The law, as it now stands, does not enable the court to
refuse to issue a witness summons (or subpoena) for the production of documents
upon due application. The remedy available to the person served is to move to
set the summons aside.”
Counsel for the first respondent…, anchors the bulk of his
argument in limine on what he perceives to be the gist of the above dicta.
He contends that the judgment of the court a quo was purely
interlocutory and therefore necessitated the leave of that court to appeal
against it.
Counsel for the appellants takes the view that the first
respondent's reliance on Senior v Holdsworth, Ex parte Independent Television
News Ltd [1976] 1 QB 23 (CA) is entirely misplaced for the following reasons.
(i) Firstly, the question of the nature of the order on
appeal was not argued in that case and the remarks of LORD DENNING on the need
for leave to appeal are obiter. That issue was not one of the two issues placed
before the court and does not form part of the ratio of the court's judgment.
Moreover, both ORR and SCARMAN LJJ simply conclude that the
order in question is appealable and do not even suggest that there is need for
leave to appeal.
(ii) Secondly, the judgment does not correctly reflect our
law in that it fails to consider that, insofar as the subpoenaed witness is
concerned, the question of whether he has to give evidence is the only issue
that arises between the witness and the party that has called him. Once that
question is resolved, the dispute between those parties comes to an end.
Instead of the dicta propounded in Senior v Holdsworth, Ex
parte Independent Television News Ltd [1976] 1 QB 23 (CA), counsel for the
appellants commends to this Court the approach enunciated by our courts in
Jesse v Chioza 1996 (1) ZLR 341 (SC) and in Mwatsaka v ICL Zimbabwe 1998 (1)
ZLR 1 (HC).
In Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC), the High
Court, in a civil case, took the view that there were material disputes of fact
which could best be resolved by hearing oral evidence and it made an order
referring the factual disputes to trial. The applicant appealed against the
order. The respondent argued that the order being appealed against was
effectively an interlocutory order which the applicant was not entitled to
appeal without first obtaining the leave of the court to do so. When the matter
came before the Supreme Court the appeal was struck off the roll without
argument being heard. The applicant then instituted a chamber application
before the High Court for leave to appeal. The court, per DEVITTIE J, dismissed
the application and later furnished a fully reasoned judgment to address what
the learned judge perceived to be an interesting question, i.e. “the utility of the distinction
between 'rulings' and 'simple interlocutory orders' in determining an
application for leave to appeal.”
The decision in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC)
may be garnered from the headnote. It was held that a distinction is to be
drawn between interlocutory orders having final effect, which orders are
appealable without leave, and those which do not have final effect, in the
sense that they do not irreparably preclude some of the relief which might be
granted in the main action. The latter are referred to as simple or purely
interlocutory orders. Such orders are further sub-divided into those that are
appealable before the completion of the trial with leave of the court and those
that are mere procedural rulings which are not appealable - even with leave of
the court.
The main reasons for disallowing appeals in respect of
procedural rulings are that, if they were to be appealable, this would lead to
a multitude of expensive and inconvenient subsidiary appeals; and that no
hardship is caused to the aggrieved party by disallowing an appeal, because he
can raise the issue of the erroneous ruling on appeal after completion of
trial. It was further observed that precluding an appeal in respect of a simple
interlocutory order that was a procedural ruling could lead to injustice, as in
some cases to allow such an appeal might result in a more expeditious and less
expensive determination of the dispute between the parties. A better approach
would be to decide whether or not the balance of convenience and expense lies
in favour of or against the granting of leave to appeal. The fact that the
order can be classified as a ruling should be merely one factor to be taken
into account in deciding this issue.
In the event, it was held that the order in question was an
interlocutory order as it did not have final effect. It was a procedural ruling
that was not appealable - even with leave.
Counsel for the first respondent criticises the reasoning
of the court in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC) on the basis that
some of its dicta are seemingly contradictory. He also argues that the views
expressed in the judgment are obiter in that, in the application for leave
before it, the court simply had to address the requirements for leave to
appeal, without having to delve into the question as to the necessity of
obtaining such leave. In any event, so he argues, the court relied upon case
authorities which had interpreted outdated South African statutes that had been
replaced.
Counsel for the appellants, on the other hand, fully
supports the reasoning in Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC) as being
in accord with the decision in Pretoria Racing Club v Van Pietersen 1907 TS 687
and consistent with established principle, viz. that interlocutory orders that are final in nature or effect are
appealable without leave.
With respect to the scope and application of this
principle, the decision of this court in Jesse v Chioza 1996 (1) ZLR 341 (SC)
is of particular significance.
In that case, the respondent, pursuant to an urgent chamber
application in the High Court, obtained a provisional order against the
appellant. The final order sought was to interdict the appellant and his
auctioneers from selling, disposing or dealing with the movable property in
dispute. On the return day, the court found that there were a number of issues
that it was unable to determine without the reception of viva voce evidence.
The Court accordingly ordered, inter alia, that the matter be referred to
trial. In relation to that part of the order, the question that arose, on
appeal, was whether or not it was an order or judgment that was appealable in
terms of section 43(1) of the High Court Act. After reviewing the relevant case
authorities, GUBBAY CJ crystallised the determinant test at 344F-345A:
“The question is whether the 'order' referring the matter
to trial for the hearing of oral evidence amounts to a 'judgment' (defined in s
2 of the Act to include 'a decision or order'), and is decisive or definitive
of the rights of the parties and has the effect of disposing of the whole, or
at least a portion, of the relief claimed by one of them….,. Or is it a mere
ruling which is a direction as to the manner in which the case should proceed?”
At 346 E-F, the learned Chief Justice answered the question
earlier posed as follows:
“[It] is clear that the directive given by SANDURA JP was
not a judgment. It did not decide the merits. It was merely a procedural ruling
that oral evidence was necessary before the factual disputes could be
determined. Consequently, and by virtue of s 43(1) of the Act, it was not
appealable.”
The decision of this court in ZFC Ltd v Geza 1998 (1) ZLR
137 (S) is also very pertinent.
After the holding of disciplinary proceedings, an employee
had been dismissed by the appellant, her employer. On review, the High Court
found that there were certain irregularities in the disciplinary proceedings
and ordered that the matter be remitted for a re-hearing. The appellant, who
was dissatisfied with this order as the respondent had sought an order that her
company reinstate her or pay damages, a remedy which was one that could only be
obtained on appeal and not on review, then appealed to the Supreme Court. At
the hearing of the matter, the point was raised whether or not the order
granted by the High Court was an interlocutory order. Applying the dicta cited
above from Jesse v Chioza 1996 (1) ZLR 341 (SC), McNALLY JA dealt with the
question, at 144A-E, as follows:
“There is a difference, of course, between referring a
matter to trial, and remitting a matter for rehearing. In the former case,
there is, in effect, a decision not to decide. The matter was unresolved when
it came before the court, and it remained unresolved. In the latter case, the
matter was resolved when it came before the judge. Miss Geza had been
dismissed. That dismissal has now, albeit not in so many words, been set aside.
In my judgment, this was not 'a mere ruling as to the
manner in which the case should proceed.' The case had been finalised. Miss
Geza had been dismissed and had not appealed beyond the General Manager. The
decision of the learned judge reversed that situation. It re-opened a matter
which was closed. Part of the relief sought, that her dismissal be set aside, was
granted….,.
Accordingly, I accept that the matter was properly before
us by way of appeal without leave.”
The critical criterion of the finality or otherwise of a
given order or judgment, in determining the need for leave to appeal, was also
reaffirmed and applied by MALABA DCJ in Blue Rangers Estates (Pvt) Ltd v
Muduviri & Another 2009 (1) ZLR 368 (S)…,; and, more recently, by CHIDYAUSIKU
CJ in Minister of Higher and Tertiary Education v BMA Fasteners (Pvt) Ltd &
Another SC33-17..,.
Analysis of
Case Authorities
Before analysing the case authorities on the subject, it
is necessary to address the import of section 6 of our Supreme Court Act.
Counsel for the first respondent submits that this
provision, in its express reliance on the prevailing law and practice observed
in England by the Court of Appeal, necessitates that it is English Law that we
must turn to for the determination of the procedural question presently under
review.
Counsel for the appellants takes a different view.
He contends that the practice observed in England is only
to be resorted to if there is no adequate provision on the matter in issue in
the Supreme Court Act or the Rules made thereunder. He further argues that the
point at hand is one which is governed by the High Court Act and not the
Supreme Court Act. Since section 43 of High Court Act makes specific provision
on the subject, there is no lacuna in our law. Therefore, so he submits, the
English position is of no application and there can be no justification for
resorting to the practice of the Court of Appeal in England.
I think that there is merit in both positions.
There obviously is no lacuna in our law relative to the
practice to be adopted on the question of leave to appeal against interlocutory
orders or judgments. Thus, section 6 of the Supreme Court Act [Chapter 7:13]
cannot be invoked to dictate slavish adherence to English practice in resolving
the question at hand. Nevertheless, I do not accept that prevailing English
practice and precedent can be dismissed as being entirely irrelevant to the
question. Given the self-evident similarities between the governing statutory
provisions in both jurisdictions, there can be no quarrel with the proposition
that English case authorities are highly persuasive in any meaningful analysis
of our procedural law.
Conversely, notwithstanding our affinity with English
rather than South African statute law governing civil procedure, I do not
perceive any cogent reason for disregarding the South African authorities on
the subject, inasmuch as the relevant principles to be applied are not
fundamentally dissimilar as between those two jurisdictions.
One of those principles, as articulated in Pretoria Racing
Club v Van Pietersen 1907 TS 687 is that it is not invariably possible to
differentiate between purely interlocutory orders and final orders. The court
must decide in each case what the specific nature or effect of the order is.
The erstwhile tendency in South Africa to lean in favour of findings of
finality, so as to avoid potential injustice or inconvenience, did not negate
the need to examine the nature and effect of the order in question. The need to
do so was also recognised and affirmed in England, in the earlier decision of
the Court of Appeal in Salaman v Warner [1891] 1 QB 734 per ESHER and FRY LJJ
(cited in Pretoria Racing Club v Van Pietersen 1907 TS 687…,.).
In my view, the finality or otherwise of an order or
judgment still remains the central and ineluctable consideration in determining
whether the order or judgment is appealable with or without leave.
Turning to Senior v Holdsworth, Ex parte Independent
Television News Ltd [1976] 1 QB 23 (CA), it is clear that the nature of the
contested order was not argued before or considered by the Court of Appeal.
Indeed, the court granted leave to appeal without deciding whether the order
appealed against was final or merely interlocutory. The questions to be decided
by the court and the rationes decidendi enunciated in the individual opinions
of the court were entirely unrelated to that issue.
Thus, the dicta propounded by LORD DENNING in that regard
were undoubtedly obiter.
As for the summons or subpoena in question, both ORR and SCARMAN
LJJ took the position that its issuance was an administrative and not a
judicial act. Both learned judges also agreed that the aggrieved party should
first apply to the issuing court to set it aside. But neither postulated that
leave to appeal was required against any decision of that court refusing to set
the subpoena aside.
Apart from these considerations, what emerges clearly from Senior
v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 (CA) is
that under the applicable County Court Rules a subpoena duces tecum is issued
not by the court but by its Registrar, who is under an obligation to issue it
upon application being made, as a matter of course and without the need for any
order of the court.
The critical distinction in the case before us is that it
is not the Registrar of the court, but the court itself, acting in terms of section
6 of the Fiscal Appeal Court Act [Chapter 23:05], which exercises the power to
order or direct its Registrar to issue the subpoena. In this instance, the
issuance of the subpoena is not a purely administrative but quasi-judicial act.
In Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC), the
principal issue for determination was the distinction between simple
interlocutory orders, which are appealable with leave, and mere procedural
rulings, which are not appealable at all - even with leave.
The dicta of the learned judge relative to interlocutory
orders having final effect were not central to his decision and were,
therefore, clearly obiter. However, I am unable to discern any contradiction in
those dicta and I consider them to be very relevant to the arguments in casu. I
also regard the court's observations pertaining to the balance of convenience
and expense, in deciding whether or not to grant leave to appeal, as being
equally apposite to the question as to whether or not leave to appeal is
necessary.
In any event, the court's analysis of the relevant case law
aptly elucidates the established principle that interlocutory orders which are
final in nature or effect are appealable without leave.
Jesse v Chioza 1996 (1) ZLR 341 (SC) was focused on section
43(1) of the High Court Act, i.e. the
right of appeal rather than leave to appeal. Nevertheless, the determinant test
expounded in that case is equally applicable to the interpretation of section
43(2)(d) of the High Court Act. That test is whether the order or judgment in
question is decisive or definitive of the rights of the parties and has the
effect of disposing of the whole or portion of the relief claimed by one of
them.
This principle was reaffirmed and applied in ZFC Ltd v Geza
1998 (1) ZLR 137 (S), where part of the relief sought by the respondent, i.e.
the reversal of her dismissal from employment, had been granted by the court a
quo. The appellate court found that this aspect had been resolved and finalised
by the lower court. That being so, the right of appeal against its decision
arose without the need for leave to appeal.
Disposition
In the instant case, the court a quo ordered its Registrar
to issue the impugned subpoena. Thereafter, on application having been made to
set it aside, the court delved fully into the substantive merits of the
application and delivered a very detailed judgment dismissing the application.
In my view, the court's judgment had a decisive and
definitive effect on the rights of the parties and disposed of the relief
claimed by both parties, i.e. either
the enforcement or the setting aside of the subpoena. It effectively disposed
of and finalised the only dispute between the appellants and the first
respondent. The subpoena issued by the court, through its Registrar, had to be
carried into effect, compelling the second appellant to appear in court to
testify and produce the requisite documents.
In the specific circumstances of this case, it is clear
that the judgment of the court a quo cannot be revisited by that court at any
stage. The appellants can only object, if so inclined, after they have complied
with that judgment. Insofar as that court is concerned, its decision on the
validity or enforceability of the subpoena is res judicata. Moreover, there
would be little point in the appellants mounting an appeal at the end of the
main case in the court below. It would undoubtedly be tantamount to a brutun
fulmen. Finally, having regard to the time and expense that would be involved
in complying with the terms of the subpoena, as was recognised by the court a
quo itself, it seems to me that the balance of convenience tilts in favour of
the appellants being allowed to appeal without leave on the particular facts of
this case.
In the result, I take the view that the point in
limine raised by the first respondent should be dismissed with costs. It be and
is hereby so ordered. The Registrar is directed to set the matter down for
hearing of the merits of the appeal on the earliest available date.
