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

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries.

The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section 2 of the Zimbabwe Gender Commission Act [Chapter 10:31] (the “Act”).

Its functions are set out in section 246 of the Constitution as being:

“(a) To monitor issues concerning gender equality to ensure gender equality as provided in this Constitution;

(b) To investigate possible violations of rights relating to gender;

(c) To receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

(d) To conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender;

(e) To advise public and private institutions on steps to be taken to ensure gender equality;

(f) To recommend affirmative action programmes to achieve gender equality;

(g) To recommend prosecution for criminal violations of rights relating to gender;

(h) To secure appropriate redress where rights relating to gender have been violated; and

(i) To do everything necessary to promote gender equality.”

On 23 August 2019, the Zimbabwe Gender Commission (Commission) issued General Notice 1444 of 2019 which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse, generally, made against the appellant.

In response, on 3 September 2019, the appellant filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice.

He followed this up with an urgent chamber application in which he sought, by way of interim relief, an interdict against the conduct of the investigation by the respondent.

On 22 October 2019, the High Court dismissed the urgent chamber application with costs. This appeal is against that judgment.

PROCEEDINGS IN THE COURT A QUO

In seeking relief before the High Court, the appellant attached a draft order in which he sought the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;

1. General Notice No.1444 of 2019 published in the Gazette of 23 August 2019 be hereby declared null and void and of no force and effect.

2. That the intended investigations of the applicant, for sexual abuse by the Respondent, in terms of General Notice No.1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby permanently stayed.

3. Costs will be costs in the cause.

TERMS OF THE INTERIM RELIEF GRANTED

1. Pending the determination of this matter on the return day, the intended investigations of the Applicant, for sexual abuse by the Respondent, in terms of General Notice No. 1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby stayed.”

In his application for an interdict, the appellant averred that he had sought the review of the decision to cause an investigation against him on allegations of sexual abuse arising from complaints laid against him.

He contended, that, in the review, he sought to challenge the jurisdiction of the Zimbabwe Gender Commission (Commission) in respect of the General Notice as well as the intended investigation into the alleged complaints of sexual abuse.

He averred, that, the contemplated investigations were imminent, and that, by his reckoning, were due to commence, at the earliest, by 12 September 2019, by which date his application for review would not have been determined, and, that, the mere pendency of the application would not stop the Zimbabwe Gender Commission (Commission) from proceeding with the investigation of the alleged complaints of sexual abuse.

He contended, that, he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review.

His stance was that neither the Constitution nor the Zimbabwe Gender Commission Act [Chapter 10:31] afforded the Zimbabwe Gender Commission (Commission) the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality.

He contended further, that, what the Commission intended from the published notice was outside its statutory mandate, and, as a result, the appellant was entitled to the protection of the law which he was seeking from the court. Thus, it was only right that the court issue an interdict against the Zimbabwe Gender Commission (Commission).

Over and above the averments referred to in the aforegoing, the appellant contended, that, even if the Zimbabwe Gender Commission (Commission) had the authority to conduct an investigation, the methodology it had employed violated his constitutional rights and legal principles and rules governing evidence such as that which the Commission wished to gather. The methods adopted would lead to a compromised result which would cause him to suffer irreversible harm.

He averred that the balance of convenience was in his favour, and that, if he was not granted the relief sought, he would suffer unconscionable irreparable harm in that he would 'be put out of pocket and suffer permanent impairment of his personal dignity which no other process could remedy.' He did not have any other remedy that he could employ to stop the process which he considered illegal.

He opined, that, the Zimbabwe Gender Commission (Commission), on the other hand, would not suffer any prejudice if its intended investigation were halted.

The Zimbabwe Gender Commission (Commission) opposed the application.

It maintained, that, it had investigative functions in terms of the Constitution and its enabling Act. It contended, that, under the provisions of section 5 of the Zimbabwe Gender Commission Act [Chapter 10:31], an investigation is preceded by the promulgation of a notice in the Government Gazette and the publishing of such notice in one or more national newspapers informing the public of its intention to investigate a systemic barrier as provided in the Zimbabwe Gender Commission Act.

The Zimbabwe Gender Commission (Commission) contended, that, the notice it issued was lawful and provided for by law.

It averred, that, it had received numerous complaints of alleged sexual abuse from numerous quarters against the appellant which necessitated the issuance of the notice to facilitate the conduct of investigations into the said complaints.

It denied suggestions by the appellant that it had neither the mandate nor the authority to proceed as intended.

In so far as the prospects of success were concerned, the Zimbabwe Gender Commission argued that there were none.

It pointed to the averment by the appellant, that, there were numerous complaints against him, some of which were the subject of police investigations. The Commission averred, that, an investigation under section 5 of the Zimbabwe Gender Commission Act can only be possible where complainants and witnesses have come forward with allegations pointing to the possibility of the existence of alleged violations.

DETERMINATION BY THE COURT A QUO

The court a quo decided the application on the sole issue of whether or not the applicant's rights were likely to be violated. It said the following:

“I do not see how the applicant's rights may be violated by the investigation. He has a right to legal representation. The investigation itself is not of a criminal nature, in the sense that the respondent is not endowed with any power to impose any sanction consequent to an investigation.”

The court a quo concluded, that, the Zimbabwe Gender Commission (Commission), had, under section 7 of the Zimbabwe Gender Commission Act, the power to conduct an investigation, and, where the investigation reveals systemic barriers prejudicial to gender equality, etc, after informing the Minister, make a report to Parliament on its findings.

The court a quo found, that, there was no immediate impact on the appellant from the investigation as contemplated by the Zimbabwe Gender Commission.

THE APPEAL

The grounds of appeal are framed as follows:

“1. The court a quo misdirected itself in totally misconstruing the application before it as one for the setting aside of investigations and so erred when consideration is given to the fact that the application was actually meant to interdict the holding of unlawful investigations.

2. The court further erred in concluding, that, protection against harm to fama cannot, at law, be sought through urgent interdictory relief and so erred in arriving at a finding which is contrary to established and well-regarded authority.

3. Having found that respondent had instituted an investigation in terms of section 5 of the Gender Commission Act [Chapter 10:31] and having concluded that the issues it sought to investigate were outside the remit of the powers contained in that provision, the court a quo erred in not concluding that appellant had prospects of success in the review application and was consequently due the remedy of an interdict.

4. A fortiori, the court a quo erred in failing to appreciate that the principle of legality requires that when challenged, the exercise of public power must be justified on the basis upon which it has been specifically exercised, and that, for that reason, the notice impugned not having been properly given in terms of section 5 of the Act could not be held valid on the basis of constitutional provisions.

5. Having come to the conclusion that the process which had been instituted by the respondent was pointless and abortive, the court a quo erred in not concluding that appellant's rights were imperilled by having to be required to go through a sham and that he was consequently entitled to protection since the balance of convenience was in his favour.”

ARGUMENTS ON APPEAL

Counsel for the appellant commenced his argument by challenging the jurisdiction of the Zimbabwe Gender Commission (Commission) to conduct the investigation as set out in the General Notice.

He submitted that the General Notice had not been issued in terms of the Zimbabwe Gender Commission Act [Chapter 10:31].

He added, that, the court a quo had itself queried the necessity by the Commission to publish the General Notice, which it said was inconsistent with the Zimbabwe Gender Commission Act, and suggested that the court a quo had implied that section 5 of the Zimbabwe Gender Commission Act was inappropriately relied upon by the Commission.

Counsel for the appellant argued, that, before the court a quo, the appellant was called upon to establish a prima facie case.

He stated that the Zimbabwe Gender Commission (Commission) did not have jurisdiction to issue the General Notice.

He highlighted to this court, that, once the judge a quo made a finding that the investigation sought to be conducted by the respondent was not a section 5 process, it automatically followed that the court ought to have granted the relief sought by the appellant.

The court engaged counsel for the appellant to shed light on what he understood a General Notice to be.

To his credit, counsel accepted that a General Notice is in the nature of a statutory instrument and has the force of law.

The court also enquired from counsel whether it was possible, at law, for a court to grant an interdict the effect of which was to suspend the operation of a law that has legal force and effect.

In addition, the court directed counsel for the appellant, premised on the relief sought in the court a quo wherein the final order sought was the permanent stay of the investigations, and enquired of him whether the application for review was not a superfluous process given that the final order sought by the appellant was a permanent stay of the investigations.

Once granted by the court, in terms of the final order prayed for, the order would render the review application inconsequential.

Counsel for the appellant contended otherwise.

Per contra, counsel for the respondent submitted, that, owing to the exchange between counsel for the appellant and the court, the issue which arose for determination was whether or not a law can be set aside through an application for an interdict.

Counsel for the respondent contended, that, in view of the promulgation of the General Notice as a law, anything done pursuant thereto must be presumed to be valid.

She argued further, that, a court cannot interdict lawful conduct.

For this contention, she sought reliance on ZIMRA v Packers International SC28-16 and Mayor Logistics v ZIMRA CC07-14, which, according to her submissions, both underscored the principle that a challenge to law cannot be made in terms of an interdict.

She proceeded to argue that the Zimbabwe Gender Commission (Commission) had acted within the ambit of its powers as prescribed in terms of section 5 of the Zimbabwe Gender Commission Act in that systemic barrier to gender equality can emanate from the conduct of one person. In this regard, she argued, the appellant, being an influential leader of a great movement, it is that stature and influence that he seeks to protect.

Counsel went on to argue, that, the Constitution, in section 246, gave the Commission the mandate to carry out such investigations. She conceded, that, the functions stated in section 246 of the Constitution are not restated in the Zimbabwe Gender Commission Act but that this did not take away the Commission's authority to act in the manner that it did because the purpose of the Zimbabwe Gender Commission Act is not to restate what is in the Constitution but to augment the contents thereof.

Counsel for the respondent submitted, that, section 246 paragraphs (b) and (c) of the Constitution set out the investigative functions of the Zimbabwe Gender Commission (Commission). She also referred the court to section 2 of the Zimbabwe Gender Commission Act which defines “systemic barriers” and added that a reading of section 2 showed that the definition therein was not exhaustive, and, for that reason, the Commission took the view that organised worship is a sphere of activity as contemplated in the Zimbabwe Gender Commission Act.

In any event, counsel for the respondent argued, the Commission had decided not to proceed with the investigations and decided to await the outcome of the review application.

In response, counsel for the appellant indicated to the court, that, the authorities cited by counsel for the Commission were irrelevant and distinguishable to the present matter.

He argued, that, the General Notice was inconsistent with the Zimbabwe Gender Commission Act and this should have automatically translated to a prima facie case for the appellant enabling him to obtain relief from the court a quo.

He submitted, that, section 5 of the Zimbabwe Gender Commission Act does not allow the Commission to exercise the powers it purported to have exercised in terms of the General Notice.

He argued, that, there was no systemic barrier involved in casu that prejudiced gender equality or gender equity.

Also, the Commission was said to have failed to indicate the section of society that was to be investigated as envisaged by section 2(1) of the Zimbabwe Gender Commission Act.

In closing his submissions, counsel for the appellant stated, that, the methodology employed by the Commission was inappropriate and not in conformity with relevant provisions of the Zimbabwe Gender Commission Act.

Having said that, he prayed that the appeal be allowed and the decision of the court a quo be set aside.

ISSUE FOR DETERMINATION

The facts of the matter are not in dispute and the appeal falls for determination on the basis of the ratio decidendi of the court a quo.

Although the appellant raised numerous grounds of appeal, there is only one issue that arises for determination and is capable of disposing of this whole appeal.

The only issue is whether or not the court a quo was wrong in refusing the application for an interdict.

STATUS OF THE GENERAL NOTICE

The Zimbabwe Gender Commission (Commission) is imbued with an investigative mandate, both in terms of the Constitution and the enabling Act. It issued a General Notice, and the appellant seeks to challenge the decision to publish the Notice through the review that he has filed.

What is a General Notice?

A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.

It can also be viewed as a document that has legislative character, and, like any other law, it has legal force and effect.

It is an essential element of due process, and, therefore, once it is issued it must be complied with unless set aside. As a consequence, until and unless it has been set aside, anything done under or pursuant to such General Notice is lawful.

It is not necessary in this appeal to determine whether or not the Zimbabwe Gender Commission (Commission) exceeded its powers in issuing the General Notice. Whether or not the Notice is in accordance with the powers bestowed on the Commission is for the court hearing the application for review to decide.

WHETHER THE COURT A QUO MISDIRECTED ITSELF IN REFUSING THE INTERDICT

What was before the court a quo was an application for a temporary interdict and that is the issue before the court on appeal.

In determining the issue, it would be prudent to start by looking at what the appellant purported to do.

The appellant applied for an interdict through which he sought to set aside the General Notice.

The premise of the interdict was that the intended investigation was illegal from several bases, the first being the want of jurisdiction to conduct an investigation and the alleged illegal exercise of that jurisdiction by the Zimbabwe Gender Commission (Commission).

It was the intention of the appellant to subject the decision to issue the Notice to a review process.

It is pertinent to point out, that, for every law that is gazetted there is a presumption of validity and appropriate legal mechanisms have been put in place, in terms of the law, where one intends to challenge the validity of a legal instrument.

Until it has been set aside, the General Notice has the force of law, and, anything done under it is presumed to be lawful and valid.

An application for an interdict is not, and cannot, by any stretch of the imagination, be considered as one of those mechanisms.

In casu, a case has not been made for the granting of the relief sought for the following reasons:

The appellant has not yet successfully impugned the legal status of the General Notice. That can only be determined after the review is decided.

Clearly, in such circumstances, the legality of the Notice itself is not in issue. It still stands as law.

In Mayor Logistics v ZIMRA CC07-14, the court said:

“The applicant seeks an order suspending the statutory obligation to pay the amount of the tax it was assessed to be liable to pay to the Fiscus pending the hearing and finalization of the appeal in the Fiscal Appeal Court. It is in the heads of argument that the applicant reveals that the relief sought is an interim interdict. There is need to have regard to the substance and not the form of the relief sought. The fact that the applicant calls the order sought an interim interdict does not make it one.

The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with.

An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a prima facie right, pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right.

It is axiomatic that the interdict is for the protection of an existing right.

There has to be proof of the existence of a prima facie right. It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it.

An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct: Airfield investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S); Stauffer Chemicals v Monsato Company 1988 (1) SA 895; Rudolph & Anor v Commissioner for Inland Revenue & Ors 1994 (3) SA 771.”

The view I take is that the lawfulness of the intended investigation is established by the General Notice. It is a legislative instrument with the force and effect of law.

As noted above, a General Notice has the force and effect of law; therefore, there is always a presumption of validity on that Notice and the validity thereof cannot be questioned through an application for an interdict. The appellant cannot seek to interdict lawful conduct.

The court, in Mayor Logistics v ZIMRA CC07-14, at page 11 of the cyclostyled judgment, went on to say:

“There is no basis on which the interim order sought may be granted except the possibility relied on by the applicant that the existing legislation would be held unconstitutional. Any court faced with an application challenging the constitutionality of a statutory provision is required to proceed on the presumption that the legislation is constitutionally valid until the contrary is clearly established.

The principle of presumption of constitutional validity of legislation pending determination of the main application is an important limitation to the exercise of judicial power: Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S) at 382B-D.

By observing the principle, due respect is accorded to the legislative branch of Government consistent with the fundamental principle of separation of powers.”

It is correct that the court a quo did not determine the matter on the basis that lawful conduct cannot be interdicted.

This is an issue of law that the court can raise mero motu.

The court did raise the issue with counsel.

In my view, once the concession is made that the Notice is a law, there is no issue. The contemplated investigation having been preceded by the promulgation of the Notice cannot, by any stretch of the imagination, be referred to as a violation of the appellant's rights.

The court a quo disposed of the matter based on the principle enunciated in Masedza & Ors v Magistrate Rusape & Anor 1998 (1) ZLR 36. I am not convinced that the authority is of any assistance in the determination of this appeal.

What is at issue is a prayer for an interdict pending the determination of a review.

There were no proceedings that were sought to be stayed. In as much as the court a quo made its determination based on the principle in Masedza & Ors v Magistrate Rusape & Anor 1998 (1) ZLR 36 it misdirected itself. The authority was not applicable to the dispute before the court.

DISPOSITION

In my view, the concession that the General Notice has the force of law is dispositive of the appeal.

A General Notice is a legal instrument that has the force and effect of law: and, like any other law, there is a presumption of validity upon it until it has been validly set aside through the appropriate legal procedures. Therefore, a litigant cannot, through an application for an interdict, seek to police lawful conduct given that the validity of the General Notice has not yet been determined by a court. As far as the law is concerned, the Notice is law. It, therefore, stands to reason that an interdict cannot lie against lawful conduct.

In the premises, the appeal is devoid of merit and is dismissed with costs.

PATEL JA: I have read the lead judgment of my learned sister GOWORA JA and consider it necessary to briefly analyse and address the nature of the relief sought by the appellant in the proceedings a quo.

As regards this aspect, GOWORA JA quite correctly observes, that, in the review application the principal relief sought is that the decision of the Zimbabwe Gender Commission, in issuing the General Notice, be set aside. Again, the provisional order sought in the urgent chamber application simply prays for the intended investigation of the appellant by the Commission, in terms of the General Notice, to be stayed. It is only in the final order sought that the appellant prays that the General Notice be declared null and void and of no force or effect.

Consequently, my learned sister concludes, that, the appellant cannot seek to police lawful conduct through an interdict, given that the validity of the General Notice, which is presumed to be valid until it is set aside, has yet to be determined.

In keeping with the case authorities cited and relied upon by GOWORA JA, I fully agree that an interdict cannot ordinarily be granted against conduct that is prima facie lawful.

Regrettably for the appellant, he has tactically mis-calculated the nature of the relief that he sought in the urgent chamber application before the court a quo. He has also failed to correlate and align the draft order in the chamber application with the relief sought in the application for review pending before the High Court.

In the final analysis, the applicant has failed to take into account the formidable hurdle presented by the rule that an interdict cannot, in principle, be granted against conduct that is prima facie lawful and carried out in terms of an extant statutory instrument that is presumed to be valid until it is duly set aside by a competent court that is properly seized with the question of its validity.

In any case, as a matter of procedural correctness, the validity of the impugned General Notice could not properly have been an issue before the court a quo until the return day had arrived.

By the same token, it cannot be properly ventilated before and determined by this Court on appeal against the judgment a quo.

For these essentially technical reasons, I would agree with GOWORA JA that the present appeal should not be allowed.

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

Alleging trademark infringement, the appellant brought an application to the High Court (the court a quo), in terms of section 9A(2) of the Trade Marks Act [Chapter 26:04] against the respondent. What was sought was an interdict against the use of the offending mark and ancillary relief.

On 23 October 2019, the court a quo handed down judgment dismissing the application with costs.

This appeal is against that whole judgement of the court a quo.

FACTUAL BACKGROUND

The appellant and the respondent are companies registered in Zimbabwe and involved in the business of producing and marketing food products. In particular, they are both in an endeavour of packaging and retailing fruit jam. On 10 October 1995, the appellant successfully registered the word “SUN” with device of various fruits under it as its trade mark for fruit jam.

The certificate of registration issued by the Registrar of Trademarks reads in part;

“The Trade Mark shown above has been registered in Part A of the Register in the name of CAIRNS FOODS LIMITED, a Zimbabwean company, of Upton Road, Ardbennie, Harare, in Class 29 under No. 1479/95 as of the 10th October 1995 in respect of jams.

Registration of this trade mark shall give no right to the exclusive use of the device of various fruits except in the precise relation and association on the representation hereon.”…,.

From then, the appellant has continued to use the mark on its package of “sun jam.”

On 9 March 2011, the respondent also successfully registered its own trademark which consists merely of the words “ROYAL SUN.” It has no fruits and sun devise accompanying it.

The respondent's own certificate of registration reads in relevant part thus;

“The Trade Mark shown above has been registered in Part A of the Register in the name of Netrade Marketing (Private) Limited, a company incorporation according to the laws of Zimbabwe whose legal address is No.23 Kenilworth Road, Newlands, Harare, Zimbabwe in Class 29 under no. 288/2011 as of the 9th March 2011 in respect of meat, fish, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats.

Registration of this mark shall give no right to the exclusive use of the word 'ROYAL' separately from the mark.”…,.

In its business venture, the respondent also packages and markets fruit jam.

For purposes of putting that product on the market, the respondent came up with a logo or appellation containing its trademark 'Royal Sun' with a variety of fruits under it and the words 'Mixed Fruit Jam' at the bottom of it all.

I mention, in passing, that, the said logo is not registered as part of the respondent's trade mark apart from the words “Royal Sun.” It is, however, common cause, that, its mixed fruit jam is marketed under that logo.

It is the use of the logo, together with the respondent's registered trademark 'ROYAL SUN' which irked the appellant.

PROCEEDINGS IN THE COURT A QUO

The appellant filed an application in the court a quo on 7 August 2017. The application was made in terms of section 9A(2) of the Trademarks Act [Chapter 26:04] for an interdict against what it regarded as an infringement of its trade mark by the respondent. It also sought to interdict the respondent from passing off its products as those of the appellant by the use of a trademark or words nearly resembling the appellant's trade mark registration number 1479/95.

The appellant's case was that it has been marketing its fruit jam under the word 'Sun' and the device mark for over fifty (50) years. As a result, it has secured and acquired reputation and goodwill for its sun jam. According to the appellant, the respondent started promoting and selling its fruit jam under the name 'ROYAL SUN' thereby causing confusion.

As proof of such confusion, the appellant cited a case in which one wholesaler which distributes the appellant's sun jam product mistakenly placed the respondent's royal sun jam in its catalogue promoting the appellant's sun jam. To the appellant, this was enough proof that the packaging of the two products is strikingly similar.

It is on that basis that the appellant alleged a trademark infringement.

Regarding the delict of passing-off, the appellant's case was that its 'SUN' mark is distinctive, has been in use for over fifty (50) years, and, as such, it is well known to members of the public. Having gained a lot of goodwill, which the respondent is riding on, a case of passing off was made. In the appellant's view, the use of 'ROYAL SUN' is calculated to deceive the transacting public, cause confusion and injury to the goodwill.

In opposing the application, the respondent's case was that having registered its trademark in Class 29 under number 288/2011 in respect of jams and other goods, such registration was of full force and effect. It entitled the respondent to use the registered trade mark, and, as such, it could not be interdicted from doing that which is permitted by law.

Further, the respondent insisted, that, it has been marketing a broad range of products under its 'ROYAL SUN' get up. Its goods are well recognised throughout the country. Jam was only added into the mix later as there was no desire to set up a new mark for only jam.

In any event, so the respondent argued, its mark is distinct from and cannot possibly be confused with that of the appellant as the visual get up of its mark is very distinct from and cannot possibly be confused with that of the appellant. Consumers cannot be deceived or confused.

The respondent insisted, that, there was no likelihood of confusion created in the mind of customers, because, unlike the appellant, it uses its logo on a wide range of products. The customers are very familiar with its products and know very well they do not originate from the appellant.

FINDINGS OF THE COURT A QUO

The court a quo undertook a comparison of the two marks. It found that the respondent's mark is the words 'ROYAL SUN' which extends to jams while that of the appellant is “a representation or a design.” For that reason, the court a quo reasoned;

“…, it is apparent that the parties respective trademarks are far from identical neither does the respondent's mark so nearly resemble applicant's registered trade mark as to be likely to deceive. Clearly, the applicant's mark is a design while the respondents mark are the words 'ROYAL SUN.'”

It was the court a quo's finding, that, the appellant had incorrectly pleaded “its causa” because there is no trade mark in respect of the word 'Sun' independently of the representation. In the court a quo's view, the appellant's trademark was not the word 'Sun'. What was registered as a trade mark was the representation or device and not the word 'Sun'.

The court a quo concluded, that, the appellant had failed to establish any infringement of its trademark.

Regarding passing off, the court a quo agreed with the respondent, that, the evidence of the wholesaler who mistook the respondent's royal sun jam for the appellant's sun jam could not be introduced in the answering affidavit.

It accordingly found, that, the appellant had failed to demonstrate any actionable passing off. That way, the application was dismissed with costs.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo and launched the present appeal on five (5) grounds, namely:

1. The court a quo erred and grossly misdirected itself in its finding that the appellant had only registered a representation or device and not the word SUN when in fact the appellant's mark consists of both the word SUN and a device/representation of fruits.

2. The court a quo erred at law in failing to consider that the dominant/distinctive feature of the appellant's mark is the word SUN and the respondent did not need to reproduce the appellant's trade mark as a whole for there to be a trademark infringement - the use of the word SUN in itself amounted to trade mark infringement.

3. The court a quo erred and grossly misdirected itself in its interpretation of the disclaimer on the appellant's mark when the appellant's claim pertained to the unauthorised use of the dominant part of its mark being the word SUN and not the representation of the fruits which was disclaimed.

4. The court a quo erred and grossly misdirected itself in its finding that the appellant had failed to prove that its mark had acquired goodwill and reputation when in fact the particulars of the reputation and goodwill were canvased in the appellant's founding affidavit and were not disputed by the respondent in its opposition.

5. The court a quo grossly misdirected itself in comparing the two logos of the appellant and the respondent when the appellant's claim was not about the respondent's logo but the use of the words Royal Sun.

These grounds of appeal zero in on one main issue for determination in this appeal: it is whether the court a quo erred and misdirected itself in making a finding that the respondent did not infringe the appellant's trademark.

Counsel for the appellant submitted, that, the court a quo misdirected itself by not applying the test used to determine the existence or otherwise of a trade-mark infringement as set out in the case authorities made available to it. Instead, so it was argued, the court a quo embarked on an unnecessary forensic examination of how the two trade marks looked like. In this process, the court a quo identified six (6) differences in the two thereby arriving at the erroneous conclusion that there was no infringement.

It was further submitted on behalf of the appellant, that, the court a quo was under the mistaken view that the word 'Sun' was not a registered trademark and concerned itself with the design accompanying that word. In counsel's view, the true nature of a trade mark goes beyond the design but encompasses the word 'Sun' as well.

Counsel for the appellant went on to submit, that, regarding passing off, all its requirements were established in this case. This was moreso regard being had that the same product marketed by the appellant under its registered trade mark, that is fruit jam, was being sold by the respondent under a confusing and deceptive banner. The appellant had shown that goodwill of its product had been acquired over a lengthy period. There was also evidence of confusion created by the respondent's use of a strikingly similar name and logo for its own jam.

Per contra, counsel for the respondent submitted, in the main, that, the respondent was not guilty of un-authorised use of a registered trade mark. Quite to the contrary, the respondent registered its own trademark and used it lawfully. Once the 'Royal Sun' trade mark was registered, the respondent was lawfully entitled to its use in its business endeavour.

It was therefore incompetent, so it was argued, for the appellant to seek to interdict the use of a registered trade mark because a court of law cannot interdict what is lawful.

Counsel for the respondent suggested, that, the appellant should have sought the remedy of the expungement of the offending trademark from the register of trade-marks. For that reason, the appeal ought to fail.

In addition, it was argued on behalf of the respondent, that, the word 'Sun' being generic in nature, cannot be subject of exclusive use unless it is used in a way that causes confusion.

According to counsel for the respondent, the appellant pleaded confusion on the part of customers when the Trade Marks Act talks of deception before an infringement could be said to exist.

In any event, there was no evidence of confusion.

It was submitted for the respondent, that, the two marks are not similar, and, as such, the notional customer cannot make a mistake between them. In counsel's view, the court a quo's decision should be upheld.

THE LAW

Perhaps the starting point in examining the law governing trademarks is the effect of registration itself.

A trademark is defined in the interpretation provision, namely, section 2 of the Trade Marks Act [Chapter 26:04] (the Act), in the following words:

“Trade mark means a mark which is used or proposed to be used in relation to goods or services for the purpose of:

(a) Indicating a connection in the course of trade between the goods or services and some person having the right either as proprietor or as a registered user to use the mark whether with or without any indication of the identity of that person; and

(b) Distinguishing the goods or services in relation to which the mark is used, or proposed to be used, from the same kind of goods or services connected in the course of trade with any other persons, but, does not include a certification mark.”…,.

In terms of section 5(4) of the Trademarks Act, the register of trade marks is prima facie evidence of any matter required or authorised by or under the Act to be entered therein.

In resolving the dispute between the parties, therefore, the contents of, and what appears in the register, is critical.

The provision governing infringements of trademarks is section 8(1) of the Trade Marks Act [Chapter 26:04] which reads;

“(1) Subject to this section and sections ten and eleven, a registered trade mark shall be infringed by any unauthorised use in the course of trade, whether as a trademark or otherwise of a mark that is identical to the registered trade mark or so nearly resembling it as is to be likely to deceive or cause confusion, where that mark is used in relation to the same or similar goods or services as those in respect of which the trade mark is registered.”…,.

Subsection (3) of section 8 makes it clear, that, the right to the use of a trade mark given by registration in Part A or Part B of the Register shall be subject to any conditions or limitations entered on the Register.

The application before the court a quo was made in terms of section 9A of the Trademarks Act. It provides for entitlement to and the nature of civil remedies for infringement in the following:

“(1) Subject to this Act, an infringement of a registered trade mark shall be actionable at the suit of the proprietor and any registered user of the mark.

(2) Subject to this Act, in any proceedings for an infringement of a registered trademark, there shall be available to the plaintiff all such remedies by way of damages, interdict, attachment, the rendering of account, the delivery of improperly marked goods or of articles used or intended to be used for marking goods or otherwise as are available in respect of the infringement of any other proprietary right.”

The provisions relating to trade mark infringement have been the subject of a number of judicial pronouncements in both this jurisdiction and South Africa. Generally, authorities are agreed, that, in infringement proceedings, what the court is required to do is to consider the notional use to which the party seeking to enforce registration puts its trademark and protect the monopoly created by the terms of registration: see Bata Ltd v Face Fashions CC & Anor 2001 (1) SA 844 (SCA).

The test for infringement was eminently stated in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)…, relied upon by counsel for the appellant in advancing the argument that there exists the likelihood of deception or confusion. The court stated:

“…, a comparison between the mark used by the defendant and the registered mark, and, having regard to the similarities and differences in the two marks, an assessment of the impact which the defendant's mark would make upon the average type of customer who would be likely to purchase the kind of goods to which the marks are applied.

The notional customer must be conceived of as a person of average intelligence, having proper eyesight and buying with ordinary caution. The marks must be viewed as they would be encountered in the market place and against the background of relevant surrounding circumstances. The marks must not only be considered side by side, but also separately…,. If each of the marks contain a main or dominant feature or idea the likely impact made by this on the mind of the customer must be taken into account.

As it has been put, marks are remembered rather by general impressions or by some significant or striking feature than by photographic recollection of the whole.”…,.

It has been accepted, that, one should not peer too closely at the mark and the alleged infringement to find similarities or differences but merely at the dominant impression given by the appearance of the mark: see Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum 1990 (1) ZLR 67; Puma AG Rudolf Dassier Sport v Global Warming (Pty) Ltd 2010 (2) SA 600 (SCA).

As for passing off, this court, quoting with approval a number of South African authorities, succinctly set out the basic principles which apply to it, in the case of Woolworth & Co (Zimbabwe) (Pvt) Ltd v The W Store & Anor 1998 (2) ZLR 402 (S)…, where GUBBAY CJ stated:

“These principles are lucidly identified, with reference to leading authorities in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) where, at 947E-948B, HARMS JA said:

'The essence of an action for passing off is to protect a business against a misrepresentation of a particular kind, namely, that the business, goods, or services of the representor is that of the plaintiff or is associated therewith…,.: in other words, it protects against deception as to a trade source or to a business connection….,.

Misrepresentation of this kind can be committed only in relation to a business that has goodwill or a drawing power…,.

Goodwill is the totality of attributes that lure or entice clients, or potential clients, to support a particular business…,. The components of goodwill are many and diverse…,. Well recognised are the locality and the personality of the driving force behind the business…,.

These components are not necessarily all present in the goodwill of any particular business. The only component of goodwill of a business that can be damaged by means of a passing-off is its reputation, and, it is for this reason, that, the first requirement for a successful passing off action is proof of the relevant reputation.”

It is apparent that passing off seeks to protect a product from the deceptive tendencies of a competitor who represents its product as that of the other. As a result of such deception or misrepresentation there should be injury or damage to reputation. Therefore, proof of reputation is a pre-requisite for passing off to be established: see also Zimbabwe Gelatine (Pvt) Ltd v Cairns Foods (Pvt) Ltd 2003 (1) ZLR 352 (S)…,.

APPLICATION OF THE LAW TO THE FACTS

Earlier on, I made reference to the specific trade mark registered for protection against use by any other party by the appellant as appears on the certificate of registration issued to it by the Registrar. By virtue of the trademarks register, the mark that is registered consists of the word 'SUN' a depiction of a Sun and various fruits underneath.

It is clear from the conditions of registration endorsed on the certificate that the appellant has no right to exclusive use of the device of various fruits except when they are used in the precise relation and association on the representation embodying the entire mark.

My understanding of that condition is that, while the various fruits may be used by any other party, their combination with the word 'SUN' and/or the picture of a sun will constitute an infringement.

This is so, because, by virtue of the definition of trade mark in section 2 of the Trade Marks Act [Chapter 26:04], the mark consisting of the word 'SUN' the picture of the sun and the fruits device qualifies as the appellant's registered trademark. The acceptance of that mark, in its form, and the issuance of a certificate of registration, triggered the protection accorded to a registered proprietor by section 8(1) of the Trademarks Act.

I entertain no doubt whatsoever, that, the court a quo fell into grave error in finding that the word 'SUN' was not registered and that what was registered “was the representation or device and not the word Sun.”

In fact, such a factual finding could not possibly be made by a court applying its mind to the facts. It is so grossly unreasonable in its defiance of logic as to attract interference on appeal. It is irrational.

Having said that, it follows, that, any use of a mark which so nearly resembles that registered by the appellant or one which is likely to deceive or cause confusion constitutes an infringement which is actionable in terms of section 9A of the Trade Marks Act.

As already pointed out, the respondent registered a trademark consisting merely of the words 'Royal Sun'. It did not register a device or representation of various fruits or a combination of fruits and the words “mixed fruit jam”. Therefore, the respondent's protected mark is only 'Royal Sun' and nothing more.

More than five (5) years after registering its 'Royal Sun' trade mark, precisely in December 2016, the respondent commenced using, not just the trademark, but a combination of it and the various fruits as well as the words “Mixed Fruit Jam” to sell jam.

The effect of such invention, if that it may be called, is that the respondent commenced selling “Royal Sun mixed fruit jam” using a logo which also contains various fruits.

The question which then arises is whether that was an infringement of a trade mark as to entitle the appellant to the relief provided for by section 9A of the Trademarks Act.

I totally agree with counsel for the appellant, that, the court a quo misdirected itself by undertaking a forensic audit of the two marks.

The law does not require the court to closely peer at the mark and the offending mark to find similarities and differences.

The proper test to be applied is an assessment of the impact which the respondent's mark would have on the average customer leisurely doing shopping at a supermarket, for instance. Would such a customer likely know the difference? This is so because marks are generally remembered by their general impression and not the details the court a quo looked for.

It occurs to me, that, had the court a quo applied the proper test, it would no doubt have come to the conclusion, that, the notional customer encountering Royal Sun Mixed fruit jam with the visual get up of the mark used on the respondent's logo would be deceived or confused into believing it is that of the appellant.

Deception or confusion is a matter of first impression not an outcome of a study.

The respondent cannot, in all fairness, suggest that the use of the words 'Royal Sun' in conjunction with the various fruits and the words 'Mixed fruit jam' was a mere coincidence.

Regarding the reputation of the appellant's product, it was not disputed that it has been on the market for a lengthy period, it was well known by consumers, and has acquired reputation. The word Sun has nothing to do with fruit jam. It was already in use in that class of products when the respondent chose to deploy it for the sale of jam as well.

While no case was made for expunging the respondent's trade mark from the register, the evidence before the court a quo established both an infringement and passing off in the use of its trademark with the fruits and the words mixed fruit jam on the logo.

To that extent, the relief provided for by section 9A(2) of the Trade Marks Act, which, inter alia, is an interdict against the use of the logo and its delivery, was available and should have been afforded the appellant. I am aware that the respondent's trade mark is used in respect of other products. That is well and good, but, an infringement was established only in the category of jams.

DISPOSITION

The law protects the proprietor of a registered trade mark against the use of a mark similar to or closely resembling the proprietor's trademark.

The combination of the respondent's registered trade mark, with other objects, was actionable at the instance of the appellant.

The appellant was entitled to interdict the use of the logo because it creates a deception or confusion between the appellant's jam product and that of the respondent.

The appeal has merit and should be upheld, but, the relief to be accorded to the appellant should be limited; firstly, to jam products, and, secondly, to the offending logo and not the trademark per se.

Regarding the issue of costs, the appellant has been substantially successful. It is entitled to its costs in the usual way wherein costs follow the result.

In the result, it be and is hereby ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside and substituted with the following;

“(a) The respondent be and is hereby interdicted and restrained from infringing the applicant's Trade Mark Number 1479/95 in Class 29 by the use of a logo with a combination of the words 'ROYAL SUN' together with a device or representation of various fruits and the words 'Mixed Fruit Jam' or any other words which nearly resemble the appellant's Trademark Number 1479/95 for its jam product to deceive or cause confusion in relation to the appellant's sun jam products.

(b) The respondent be and is hereby interdicted and restrained from using any mark, trade name, label, or get up likely to result in its jam products being taken to be those of the applicant without clearly distinguishing such jam products from those of the applicant.

(c) The respondent be and is hereby interdicted from passing off its jam products as those of the applicant registered under Trade Mark Number 1479/95.

(d) The respondent shall deliver to the applicant, or the Sheriff, for destruction, all packaging, labels, posters, wrapping, advertising matter, documents and other material in its possession bearing the ROYAL SUN MIXED FRUIT JAM which resembles the applicant's registered trademark.

(e) The respondent shall bear the costs of the application.”

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1....,.

2. Whether the court a quo erred in granting an interim interdict prohibiting the appellant from administering the deceased estate....,.

On the merits, counsel for the appellant submitted, in the main, that, the court a quo dealt with an application for an interdict which was based on a past infraction which the appellant had corrected.

In his view, the appellant's decision to issue an interim liquidation account dealing only with the Lamborghini motor vehicle and to attempt to release the vehicle to “Kit Kat” had been reversed following the intervention of the fourth respondent.

It was submitted further, that, the court a quo erred in granting an interdict based on what had already transpired.

Apart from that, so it was argued, there is a procedure to be followed by a person aggrieved by the decision of the Master of the High Court. The procedure was not engaged by the respondents who obviously had other remedies available to them.

In conclusion, counsel for the appellant submitted, that, there were triable issues which could not be resolved on the affidavit and documents filed by the parties.

In counsel's view, the circumstances relating to the drafting of the unsigned will, its acceptance by the respondents themselves at the edict meeting, and the allegations of duress were all disputed facts which the court could not resolve on the papers.

In response, counsel for the respondents maintained, that, the respondents made a case for the grant of an interim interdict which is the sole subject of this appeal. Until such time that the validity of the unsigned will has been interrogated, the court a quo had to interdict its use in the administration of the estate.

He craved the dismissal of the appeal with costs on the admonitory scale....,.

On the merits, I do not agree with counsel for the appellant, that, the judge a quo granted an interdict solely on the past infraction of the attempted release of the Lamborghini motor vehicle. Of course, that conduct served as a sharp warning of what the appellant was capable of and the need to protect the deceased estate.

However, this is a case in which an unsigned document, purportedly prepared on the instructions of the deceased, was being used to administer a huge estate straddling the borders of three countries.

Its authenticity has to be investigated.

The beneficiaries questioned its origins and the involvement of the appellant as executrix of the estate. If indeed the appellant was administering the estate for the benefit of none other than the beneficiaries, surely, she should not have any problems submitting herself to judicial scrutiny.

The fact that the respondents initially accepted the unsigned document as the Will and the appointment of the appellant as executrix is of no moment in the inquiry on the authenticity and validity of that document.

This is not a “touch-is-a-move” game of draft in which the stakes turn against the player once he or she touches the lid. Where new facts have emerged, the court should be engaged to solve the issues.

I also do not agree that there was another effective alternative remedy available to the respondents other than interdicting the administration of the estate until the validity of the unsigned will has been dealt with.

Accordingly, the judge a quo cannot be faulted for finding, that, all the requirements for the grant of a temporary interdict were satisfied.

The appeal has no merit.

Regarding the question of costs, no foundation was laid for an award of costs on an admonitory scale of legal practitioner and client. However, there is no reason why costs should not follow the result as usual.

It is for these reasons that this Court dismissed the appeal with costs.

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.”

Appealed
SCSC87-22 : FISANI MOYO and VALENTINE MINE vs BLANKET MINE (1983) (PVT) LTD and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 31 August 2021, and ordering the eviction of the appellants and all those claiming occupation through them from a mining claim labelled Valentine 56.At the end of the hearing, the court dismissed the ...

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 31 August 2021, and ordering the eviction of the appellants and all those claiming occupation through them from a mining claim labelled Valentine 56.

At the end of the hearing, the court dismissed the appeal with costs and indicated that full reasons for the judgment would follow in due course. These are they.

BACKGROUND FACTS

The first respondent applied to the High Court for a spoliation order on the basis that it had been in peaceful and undisturbed possession of a mining claim known as Valentine 56 before being despoiled of it by the second appellant, a company registered in terms of the laws of Zimbabwe.

The deponent to the appellants joint opposing affidavit, one Thomson Moyo, averred that the second appellant was claiming mining rights through the first appellant.

The appellants opposed the application on the basis that the first appellant was the registered owner of the mining claim.

Per contra, the respondents case was that the appellants, sometime in May 2021, took unlawful occupation of the mining claim and began mining activities thereon. The first respondent had been conducting exploration on the same mining claim in the form of diamond drilling from 2020 until May 2021.

It was its case, that, valuation of the drilling results was underway and while awaiting these, they had temporarily ceased drilling activities on the claim. The results were required in order to determine how best to proceed with the diamond drilling.

During this temporary cessation of drilling, the appellants had taken occupation of the disputed mine and started conducting mining activities thereon. This led to a dispute between the first appellant and the first respondent as they both claimed they had mining claims to the property.

As a result of the dispute, the assistance of the third respondent (Provincial Mining Director) was sought, leading to the issuance by him of an injunction ordering all parties to cease mining at the mining location.

The third respondent also summoned the parties for purposes of negotiating a settlement of the dispute.

At the meeting, the second appellant, through Thompson Moyo, refused to sign the settlement consent form. The first respondent sought the assistance of the police to no avail, prompting it to file an urgent chamber application in the High Court for a spoliation order against the appellants.

It was the first respondent's case, that, despite the third respondent issuing an injunction in terms of section 354(5) of the Mines and Minerals Act [Chapter 21:05], and the dispute not having been resolved, the appellants continued to be in occupation of the mine, carrying out mining activities thereon.

In their defence, the appellants argued that there was never any forceful occupation of the disputed mine as the mining activities were being conducted on the first appellant's duly registered claim.

It was their view, that, the injunction in question was irregularly issued, which is why it was under challenge before the courts in case number HC731/21.

The appellants argued further, that, the application for spoliation was fatally defective since it was a disguised application for eviction and could, accordingly, not be heard on an urgent basis. This was because, so the argument went, the courts have held that eviction should always be by way of action.

They further argued, that, there were material disputes of fact that could not be resolved on the papers before the court a quo.

They also argued, that, a juristic person was incapable of despoiling anyone.

The third respondent, in his supporting affidavit, submitted that the records in his office confirmed the first respondent as the registered holder of Valentine 56 mining claim. This was supported by the ground verifications of the mining claims that his office had conducted.

The court a quo found, that, the argument that the application ought not to be heard on an urgent basis was a sterile argument which sought to emphasise form over substance. It found that the application was for a spoliation order and that the dispute as to who owned the mining claim was a matter for another day.

The court a quo further found, that, the fact that restoration of possession entailed removing the appellants from the mining claim did not make the application any less spoliatory in nature. It found that the first respondent was in undisturbed and peaceful possession of the claim before it was despoiled of it by the appellants.

Consequently, the court granted the order sought by the first respondent.

Disgruntled by the judgment of the court a quo, the appellants filed the present appeal on the following grounds:

(i) The court a quo grossly erred at law in granting an application for eviction on an urgent basis.

(ii) The court a quo misdirected itself in granting relief against the first appellant without any averment that it had unlawfully dispossessed the first respondent.

(iii) The court a quo grossly erred in granting relief when it was not shown that the first respondent was in physical control of the mine in dispute.

(iv) The court a quo misdirected itself by granting relief on an urgent basis when it had not been shown that the first respondent had treated the matter with urgency.

ISSUES FOR DETERMINATION

(i) Whether the court a quo misdirected itself by granting relief on an urgent basis; and

(ii) Whether the court a quo erred in granting the application in favour of the first respondent.

Whether or not the court a quo misdirected itself by granting relief on an urgent basis

The appellants further argue, that, the court a quo misdirected itself by granting relief on an urgent basis when it had not been shown that the first respondent had treated the matter with urgency. In other words, the appellant appeals against the finding of the court a quo that the matter was urgent.

This court, in a number of decisions, has ruled that the finding of urgency, on its own, cannot constitute a substantive ground of appeal: see Nyakutombwa Mugabe Legal Counsel v Mutasa & Others SC28-18…,.

This is because that finding has no bearing on the merits of the application or judgment.

The latter can thus not be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application: see Constantine Guvheya Dominic Chiwenga v Marry Mubaiwa SC86-20…,.

In any case, as emphasized by this Court in Equity Properties (Pvt) Ltd v Ashanti Global BVI Ltd & Anor SC101-21…, the decision as to whether an application is urgent, is a matter in the discretion of the court a quo. Such a decision cannot lightly be interfered with by this Court except on grounds of gross misdirection or irregularity.

No such grounds have been advanced nor proven in casu: see, among others, Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13.

It follows from this, that, ground number 4 of the appellant's grounds of appeal is ill-conceived and lacks any merit.

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

In JC Conolly and Sons (Private) Limited v RC Ndhlukula and Anor SC22-18, GARWE JA said:“The law is settled that an order of spoliation is final in nature and that it determines the immediate right of possession of a particular res. It is frequently followed by further proceedings between the ...

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:“IT IS ORDERED THAT:1. The appeal succeeds with costs.2. The judgment of the court a quo is set aside and substituted with the following:'The application is hereby granted in terms of ...

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:

“IT IS ORDERED THAT:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

'The application is hereby granted in terms of the draft order.'”

We intimated that our reasons would follow in due course. These are they.

The appellant (hereinafter referred to as 'Portland') and the second respondent (hereinafter referred to as 'Bak Logistics') are private companies duly registered as such under the laws of this country. Portland is a producer of cement which is sold both locally and externally. Bak Logistics provides warehousing and bulk storage services to the general public.

The first respondent (hereinafter referred to as 'Tupelostep') is a company registered under the laws of South Africa. It has its headquarters in that country. It provides extensive haulage freight services throughout Southern Africa.

At the beginning of 2012, Portland obtained orders for the export of cement to Mozambique. Sometime in February or March 2012, Portland engaged Tupelostep to arrange the transportation of cement into Mozambique on its behalf.

The terms of the contract obliged Portland to convey the cement to Tupelostep by rail. In turn, Tupelostep would arrange for the storage of the cement pending receipt of export documents from Portland.

In order to comply with its obligations under this contract, Tupelostep entered into an agreement with Bak Logistics for storage and warehousing of the cement pending its conveyance to Mozambique.

On receipt of clearance documents from Portland, Tupelostep would then arrange for the transportation of the cement by road. The process would, on occasion, entail the hire of vehicles from third parties. There was, however, no contract between Portland and Bak Logistics, and Portland was not privy to the contract between Tupelostep and Bak Logistics.

In September 2012, Portland transported a consignment of 1,270 tons of cement to Tupelostep by rail. It was stored with Bak Logistics.

A dispute then arose between Portland and Tupelostep regarding charges claimed by the latter in the discharge of its obligations and services under the contract. The parties attempted to settle the dispute but failed.

In December 2012, Tupelostep advised Portland that it would no longer allow movement of stock from the warehouse unless it was paid certain sums of money being claimed by it for demurrage and transportation costs.

On 16 January 2013, Portland gave notice to Tupelostep of its intention to terminate the mandate for storage and transportation of the cement.

On 29 January 2013, Portland addressed an email to Tupelostep demanding the release to it of documentation availed to Tupelostep in respect of the consignment of cement under its control and in the possession of Bak Logistics.

In turn, Tupelostep responded by refusing to release the documents in its custody for a number of reasons which are not germane to the resolution of this dispute.

On 4 February 2013, Portland filed an urgent application with the High Court in respect of which it sought relief expressed as follows:

“INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief;

1. That 1st and 2nd Respondent be and are hereby ordered to release to applicant the applicant's cement being 1,270 tons of cement held by 1st and 2nd respondent at 2nd respondent's premises at 106 Dartford Road, Willowvale Industrial Area, Harare.

2. That the proceeds of sale of the cement be held at a trust account in the law firm of Messrs Gill, Godlonton & Gerrans of 7th Floor, Beverly Court, 100 Nelson Mandela Avenue.

TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms:

1. That the proceeds of the cement held by Messers Gill, Godlonton & Gerrans in their trust account be disbursed in terms of an order of this Honourable Court confirming the entitlement of either party to such proceeds.

2. That the costs of this application be borne by the party succeeding in the anticipated litigation between the parties. (sic)”

The application was opposed by both respondents.

The High Court heard the parties on the question of urgency and decided that the application was not urgent.

The court then dismissed the application with costs on the basis of lack of urgency.

This appeal is against that decision.

It was contended that the High Court erred in the exercise of its discretion, and that, to that extent, it had misdirected itself.

Portland approached the High Court for urgent relief on the premise that Tupelostep was holding on to cement which belonged to the former and that its actions were illegal and unjustified.

It was also alleged, in the certificate of urgency, that, cement, by virtue of its hygroscopic nature, had a limited lifespan and that any continued delay in its release to Portland would result in financial loss to Portland.

Whilst accepting that commercial interests can be advanced as a basis for urgency, the learned judge in the court a quo found that the urgency in the matter before him was self-created. This is what the learned judge stated:

“I am however persuaded by counsel for respondents argument, that, the urgency pleaded by the applicant is self-created. In the first place, it was not denied that the cement has been with the respondents since September 2012. If, therefore, cement has a short shelf life, why did the applicant not seek its release much earlier? Secondly, the argument that it tends to attract moisture is as relevant now as it was from the onset of the rainy season. The need to act was ever present from the onset, taking into account the nature of the product that is in dispute. In other words, the matter cannot assume more urgency towards the end of the shelf life of a product whose delicacy has never been in doubt.”

It seems to me that the court a quo determined the matter on facts which were not before it.

The consignment of cement was sent to the warehouse in September 2012, but, the record shows that there was movement of stocks from the warehouse without hindrance. The problem arose on 16 January 2013 when Tupelostep wrote an email to Portland advising that a halt had been placed on the movement of the product from the warehouse on its instructions.

That is when in fact the need to act arose and not in September 2012 as stated by the learned judge in the court a quo.

This fact is confirmed by the opposing affidavit filed on behalf of Tupelostep in which the statement is made that:

“Up until 15 January 2013, the first respondent never prevented the removal of cement.”

It is therefore accepted by Tupelostep that cement was being moved up until that date.

If Portland had the right to remove cement up until that date, it follows that the need to act cannot, by any stretch of the imagination, have arisen prior to that date.

In its judgment, the court accepted that what triggered the application was the negation, on 31 January 2013, of an agreement by the parties allowing the removal of the cement by Portland.

The application was filed on 4 February 2013 - a mere four days after the agreement was negated by Tupelostep.

The suggestion that the cement should have been removed in September 2012 is therefore not supported by the record, as, the storage in September was for purposes of facilitating its transportation. The storage was part and parcel of the modus operandi of the contract by the parties.

I am satisfied that the matter ought to have been dealt with on the basis of urgency. No delay had been established on the respondents papers.

Portland also alleged urgency on the premise that cement had a limited shelf-life and that any delay in access to the product, for purposes of sale, would result in economic loss.

Whilst accepting that the law recognised economic loss as a factor for urgency, the court rejected an argument for the granting of relief on this basis on the grounds that the cement had been with Tupelostep and Bak Logistics since September 2012 and that its release should have been sought earlier.

Again, the learned judge fell into error in his assessment of the evidence before him.

The Court placed reliance on the date when the consignment was sent to Bak Logistics and fell into the error of regarding that date to be the time at which it should have sought its removal from storage. The court a quo failed to appreciate, that, the cement was destined for export orders and that any failure on the part of Portland to deliver would cause it harm in the eyes of its external customers.

In addition, the refusal to release export documents would place Portland at cross purposes with the exchange control authorities through its failure to acquit CD1 export forms.

These factors, although adverted to in the application, were not dealt with by the court a quo.

Tupelostep is a peregrinus, a fact which was not disputed before the court a quo.

It was contended on behalf of Portland, that, the fact that Tupelostep is resident in South Africa would tend to complicate issues as the suit would have be instituted in that country. It was contended further, that, in the event that it was sued in this country, any judgment obtained as a result would have to be registered there.

All this entails a lot of litigation and the remedy of damages then becomes theoretical.

The court a quo however felt persuaded that there was an alternative remedy available to Portland, and, consequently, there was no urgency to the application.

The practical difficulties attendant upon such a process for recovery should have been obvious to the court. The failure by the court to appreciate these factors was a clear misdirection warranting the interference by this Court with the exercise of its discretion.

However, over and above these criticisms, the High Court, having decided to determine the matter on the issue of urgency, dismissed the application on the basis that it was not urgent.

This was not the proper course to follow.

Instead, it should have removed the matter from the roll on the basis that it lacked urgency.

Such a course would have left the door open for the appellant to place the matter before the court for determination as an ordinary court application.

In Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust SC71-14, ZIYAMBI JA remarked as follows:

“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.

I respectfully associate myself with the dicta by her Ladyship. It follows, that, the dismissal of the application for want of urgency is improper....,.

It is also contended on behalf of Portland, that, in addition to this, the court fell into further error by commenting on the merits of the case....,.

Although purporting to dismiss the application on the basis that it lacked urgency, the court a quo did make pronouncements on the merits of the application. At p2 of the judgment, the learned judge states:

“A perusal of the papers convinced me that there was no basis for granting the interim relief sought and I declined to set the matter down.”

Later on in the judgment…, the learned judge again comments on the merits of the application and states:

“I would have held the same in the present case, save that the reasons advanced for seeking interim relief cannot be sustained.”

And later at p3:

“If the respondents are owed substantial sums of money by the applicant, they would be entitled to a right of retention over the applicant's goods. There is nothing unlawful about such retention as claimed by the applicant. It seems the applicant is basing illegality on the respondents refusal of the security that is being offered. But, as contended by Mr Uriri, no adequate security arrangements have been made by the applicant. For example, he highlighted that security equivalent to the value of the goods is far less than what is owed to the respondents. He further pointed out that there has not been payment of transport costs acknowledged by the applicant.”

As a consequence of the comments by the learned judge as to the merits of the dispute, I am not persuaded by the argument advanced by counsel for the respondents, that, the learned judge in the court a quo did not deal with the matter on the merits.

The judgment has specific findings on the merits of the application, which findings are not confined to the issue of urgency.

The judgment speaks to the security being offered by the applicant being less than what is allegedly owed as transport costs. It mentions that no costs had been paid even though the sum due was acknowledged by the applicant.

It is for the above reasons that the court determined that the appeal had merit and granted the same with costs.

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for direct access to this Court made in terms of section 167(5) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicant intends to approach the Court, in terms of section 85(1) of the Constitution, seeking an order that his rights, as enshrined in the Constitution, were infringed by the first respondent's Non-Executive Board members, its Board, the arbitrators awards, Labour Court judgments, and the Supreme Court.

The rights so infringed being:

(i) The right to equal protection of the law in terms of section 56(1) of the Constitution;

(ii) The right to privacy in terms of section 57(c) and (e) of the Constitution;

(iii) The right to access information in terms of sections 62(2) and 62(3) of the Constitution;

(iv) Labour rights in terms of sections 65(1) and 65(4) of the Constitution;

(v) The right to administrative justice in terms of sections 68(1) and 68(2) of the Constitution;

(vi) The right to a fair hearing in terms of sections 69(2) and 69(3) of the Constitution; and

(vii) The right to property in terms of sections 71(3) and 71(4) of the Constitution.

At the commencement of the hearing, counsel, on behalf of the Attorney-General, took a preliminary point regarding the citation of the Attorney General as a party to these proceedings.

It was her view, that, there was no law being impugned in the application, and that, as a consequence, the joinder of the Attorney-General as a party was irregular. She applied for his removal as a party to the proceedings.

The applicant was of the view that the Rules required his citation, but, was constrained to concede that the citation had been done in error. Counsel, on behalf of the first respondent, did not object to the application, which was granted by consent.

The Attorney General was, therefore, removed from the proceedings and excused from further participation.

This left one respondent as a party, and, any reference to the respondent will be in respect of the first respondent herein.

FACTUAL BACKGROUND

The applicant was formerly employed by the respondent as its General Manager cum Chief Executive Officer. On 26 February 2009, he was sent on special leave, and, on 19 May 2009, he was notified by the respondent of its decision to terminate his employment.

Aggrieved by the decision to terminate his employment, the applicant filed a complaint of unfair dismissal. The matter proceeded to arbitration. The arbitrator found in his favour, set aside the dismissal, and ordered the reinstatement of the applicant with effect from the date of his dismissal.

Thereafter, negotiations for reinstatement having failed, the matter was, again, referred to the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator quantified his award for damages in lieu of reinstatement and ordered the respondent to pay the same.

The applicant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the applicant and challenged the arbitrator's award of punitive damages, and, further to this, his failure to deduct certain amounts allegedly owed by the applicant to the respondent.

The Labour Court dismissed the appeal and partially allowed the cross appeal to the extent of setting aside the arbitrator's award of punitive damages.

Consequently, the applicant appealed to the Supreme Court, and, the Court ordered a minor favourable adjustment to the contractual benefits that the applicant was entitled to. The matter was thereafter remitted to the arbitrator to deal with the adjustment.

Before the arbitrator, the applicant raised several preliminary issues, which were dismissed. The applicant proceeded to appeal against that interim award to the court a quo.

That appeal was struck off the roll on the basis that he had improperly appealed against an interim order.

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

On 25 July 2011, the High Court at Harare granted an order in the following terms:“FINAL RELIEF SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. Pending the determination of the dispute between the parties by the process of ...

On 25 July 2011, the High Court at Harare granted an order in the following terms:

“FINAL RELIEF SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. Pending the determination of the dispute between the parties by the process of Arbitration in terms of the provisions of the Arbitration Act, the first respondent shall not take any steps neither shall it act in any such manner as is inconsistent with the rights of the applicants arising from the agreement between the parties (as amended), and shall not act in such a way unless entitled to so act in terms of any Arbitral Award that may be handed down.

2. The costs of this application shall be costs in the envisaged arbitration proceedings.

INTERIM RELIEF GRANTED

That pending determination of this matter on the return date, applicants are granted the following relief:

1. The first respondent is directed to restore to the first applicant the internet based reporting links and all access to Trustco mobile hardware and software, thus enabling it to monitor and process airtime purchase transactions and otherwise perform its obligations in terms of the agreement; and

2. The first respondent be directed to refrain from undertaking and implementing a competing, infringing service to that provided by the first applicant in terms of the agreement.”

Dissatisfied with the order, the appellant filed a notice of appeal with this Court.

In essence, the appellant seeks an order setting aside the decision of the court a quo and substituting it with one dismissing the application with costs.

BACKGROUND

Econet Wireless (Pvt) Ltd (“the appellant”) is a mobile network operator carrying out its operations in Zimbabwe. On 17 August 2010, the appellant concluded an agreement with Trustco Mobile (Proprietary) Ltd (“the first respondent”), a Namibian based company and subsidiary of Trustco Holdings, whose core business is micro-insurance, financial services, and the provision of various wireless application services through mobile telephony.

In terms of the agreement, the first respondent was to provide certain software and support services to facilitate the provision of free life cover to Zimbabwean cellular phone users and customers of the appellant against the purchase of cellular airtime from the appellant.

In terms of the agreement, life cover was to be underwritten by First Mutual Life Assurance Company of Zimbabwe (“First Mutual”) at no cost to the appellant's customers but against payment of a fee by the appellant, to the first respondent, calculated in terms of the agreement.

First Mutual was to underwrite life cover against payment of a premium which was to be subtracted from the amounts due to the first respondent by the appellant.

The project came to be known in Zimbabwe as “Ecolife”.

The project was to be facilitated by a transaction facilitation system, which allowed communication between users seeking insurance, their mobile service provider, and insurance underwriter.

The system would record all the transactions that took place.

A subscriber would only be entitled to life cover if he purchased airtime in excess of three dollars over a period of a month. For life cover to be retained, further airtime of more than three dollars had to be purchased. All subscribers who spent more than three dollars would then be accepted for insurance by First Mutual.

The project was presented on the basis, that, it would result in a substantial increase in the appellant's airtime sales.

It was a term of the agreement, that, the same was to endure for an initial period of eighteen months and that the appellant was to refrain from performing an act contesting, impairing any part of the rights and infringing, copying, duplicating, or passing off any of the first respondent's rights.

It was also a term of the agreement, that, in the event of a breach not remedied within fourteen days of notice of such breach, the innocent party was entitled to cancel the agreement without prejudice to any other rights it may have had.

In February 2011, a dispute arose in regard to the first respondent's entitlement to certain royalties. Whilst the appellant agreed to pay a portion of the royalty fee, it however maintained that no fees would be paid in respect of customers whose details were not completely captured.

On 26 May 2011, the appellant wrote to the first respondent also expressing its concerns over what it regarded as violations of the agreement by the first respondent.

What happened thereafter is what gave rise to the proceedings the subject of this appeal.

On 31 May 2011, the first respondent sent a letter to the appellant, the contents of which triggered the dispute that is the subject of this matter. That letter reads, in relevant part:

“The current situation is unbearable. Econet, as a registered insurance broker, is holding out to 1.85 million subscribers that they in fact have life insurance while the true state of affairs is that the insurer is not obliged to pay any claim while its premiums are outstanding. Trustco cannot be associated with such a state of affairs.

Therefore, be advised that all obligations of Trustco will be suspended 3 June 2011 at 12h00 Namibian time if all overdue payments are not received by then.…,.

Kindly be further advised that if all overdue amounts, of which you have been advised, are not received within 14 days from date hereof, Trustco will deem the contract cancelled in terms of Clause 17.1 of the agreement.”…,.

The appellant responded the following day, 1 June 2011, in the following terms:

“We acknowledge receipt of your letter dated 31st May 2011 regarding the above. Your intention to terminate the agreement has been noted and accepted.

Econet maintains that it has discharged all its obligations under our agreements with you. We repeat our averment, that, royalties are only payable in respect of subscribers who buy airtime of a value exceeding $3 per month. Those subscribers who buy airtime amounting to $3, but do not buy any additional airtime are not entitled to cover. Consequently, no royalties are payable in respect of such subscribers….,.”…,.

In a letter dated 3 June 2011, the day it had threatened to suspend all obligations if all overdue payments were not received, the first respondent wrote in the last paragraph thereof:

“Legal advice received indicated that we are not entitled to switch off the system until 14 working days have lapsed since 31 May 2011. Hence, the system will remain operative until then.”

The appellant, in a letter dated 5 June 2011, stated:

“We refer to your letter of 3 June 2011 and advise that we stand by our letter of 1 June 2011 in terms of which we accepted your notice of termination of our agreement. Therefore, we consider the agreement terminated. We shall proceed to make arrangements to ensure that our subscribers are not prejudiced by the termination of the agreement that was initiated by you….,.”

The appellant further advised, that, in view of the decision it had taken on the matter, it had commenced the steps necessary to discontinue the use of the Trustco Mobile Concept and would not use the system with effect from 14 June 2011.

On 5 June 2011, the appellant severed links with the first respondent's system.

By letter dated 8 June 2011, the first respondent's lawyers, Messrs Rudolph Bernstein & Associates wrote to the appellant advising that the letter of 31 May 2011 indicating an intention to cancel the agreement was never intended to constitute an invitation to the appellant for the consensual termination of the agreement, and that, by purporting to accept such termination, the appellant's conduct constituted an attempt to repudiate the agreement.

The letter further made it clear, that, the first respondent would not accept such repudiation and that it had no intention of cancelling the agreement pending the resolution of the dispute between the parties.

The letter further gave the appellant until 9 June 2011 to restore all links failing which urgent injunctive relief would be sought.

As a result of this impasse, the first respondent filed, on 24 June 2011, an urgent chamber application in the High Court in which it sought the relief in the terms already indicated.

After hearing argument, the court a quo made the following findings:

(a) That, a reasonable explanation had been tendered for the delay in the filing of the application and that the matter was urgent.

(b) That, the relief sought in the interim was restoration of the status quo ante, and, on the return day, a show cause why the first respondent's rights should not be preserved pending determination of the dispute by arbitration. In other words, the relief sought on the return day was dis-similar to the interim relief sought.

(c) That, the requirements for an interdict had been met, and, in particular, the balance of convenience favoured the respondents.

(d) That, the notice to terminate issued by the first respondent was in the future and not ex nunc and therefore invalid. In the circumstances, there was no cancellation which the appellant could note and accept, and, consequently, the agreement remained valid.

Consequent to the above findings, the court a quo granted an order in terms of the draft filed.

That order is the subject of the present appeal.

It is perhaps pertinent to mention at this juncture, that, the first respondent thereafter successfully applied for an order allowing execution notwithstanding the noting of the appeal.

From the submissions made by counsel, it is apparent that the parties have been engaged in arbitration proceedings pursuant to the order granted by the court a quo.

The appellant has attacked the decision of the court a quo on several bases.

Since a point in limine has been taken in respect of the propriety of the Notice of Appeal itself, it becomes necessary to quote the grounds of appeal in toto. The appellant's grounds of appeal are:

“1. The learned Judge in the court a quo erred in fact, and at law, by finding that the matter was urgent and in so finding, failed to pay due regard to the background to the matter, the activities of respondents prior to the filing of the application, to the submissions made, and numerous authorities cited by appellant and to the matters raised by appellant in its opposing papers.

2. The learned Judge in the court a quo erred in fact and at law in finding that the relief sought in the amended provisional order did not suffer from the same defect as the provisional order originally filed and erred in finding that the interim and final reliefs prayed were not the same or not substantially similar.

3. The learned judge in the court a quo erred in failing to appreciate, that, by granting the interim relief as amended, the order granted has the effect of a final order.

4. The learned judge in the court a quo erred in fact, and at law, by failing to appreciate, and disregarding case authorities drawn to his attention that the process of arbitration to which the final relief prayed for refers relies (sic) on an arbitration clause in the agreement which does not oblige the parties to have any dispute determined by the process of arbitration, and, in so finding, took away the appellant's discretion to adopt other dispute resolution methods that are permissible at law, and under the agreement.

5. Having regard to the hostility between the parties that was evident on the papers, the protests by appellant's subscribers over abuse of appellant's system through unsolicited messages sent by the respondents, the fixed term nature of the contract between the parties, and the declaration by respondents herein that they did not wish to honour their side of the contract, the learned judge in the court a quo erred in finding that respondents had established all requirements for the grant of a temporary interdict, and, in particular, erred in finding:

5.1 That respondents fear that appellant had infringed its concept was well grounded, such finding having been erroneously arrived at in view of appellant's averment that such infringement was not in fact possible because appellant does not have access to the source code of respondents system.

5.2 That the balance of convenience favoured the granting of the interdict; and

5.3 That no other adequate remedy was available to the respondents.

6. Having regard to the same factors referred to in paragraph 5 above, the learned Judge in the court a quo erred in exercising his discretion to grant specific performance of the agreement in all the circumstances.

7. Generally, the learned judge in the court a quo did not apply himself to the facts of the matter before him as a result of which he made the following findings of fact that are not supported by the facts of the matter before him, namely:

7.1 That the agreement between the parties required first respondent to procure free life cover for the appellant's subscribers from First Mutual Insurance Company when the agreement contained no such requirement at all, and the facts before the judge showed that the first respondents would not have been able to do so as it was appellant that sought and obtained approval from the Commissioner of Insurance to obtain insurance cover for its subscribers and pay for such cover on behalf of its qualifying subscribers.

7.2 That the “business model for the provision of free life cover as against the purchase of airtime amounts to an intellectual property” when the agreement between the parties did not so provide.

7.3 That “copyright and international patent had been applied for” when the agreement stipulated, falsely, that first respondent already was a holder of International patent over the “Trustco Mobile Concept” and the undisputed facts on record showed that such patent had been sought and declined on the basis the Trustco Mobile Concept was not novel and was thus not patentable, facts that first respondent kept hidden from appellant.

7.4 That “substantial revenue, running into millions of US dollars, was reaped from it (the system) to the benefit of the three parties to the agreement” thereby adopting first respondent's bald and disputed assertions without question and in the absence of evidence to that effect.

8. More specifically, the learned judge in the court a quo based his judgment on the letter dated 31 May 2011 written by the first respondent and found that the contents thereof was a mere expression of an intention to terminate the agreement after 14 days, which intention first respondent was entitled to withdraw on the following selective quotation of the first respondent's letter of 31 May 2011:

“Therefore, be advised that all obligation of Trustco will be suspended on 3 June 2011 at 1200 hours Namibian time if all overdue amounts, of which you have been advised, are not received by then…,. Kindly be further advised that if all overdue amounts, of which you have been advised, are not received within 14 days from the date hereof Trustco will deem the contract cancelled in terms of clause 17.1 of the main agreement.”

Had the learned judge a quo considered the full text of the relevant part of the letter, which reads as follows:

“Therefore, be advised that all obligations of Trustco will be suspended on 3 June 2011 at 1200 hours Namibian time if all overdue amounts, of which you have been advised, are not received by then.

We expect yourselves to appraise the Postal & Telecommunications Regulatory of Zimbabwe (Potraz), the Insurance and Pension Commission as well as the Reserve Bank of the status quo of Eco Life with immediate effect. On Monday 6 June 2011, Trustco will advise the Zimbabwean Press and its shareholders via SENS of the status quo of Ecolife as required by the regulatory environment Trustco operates in.

Kindly be further advised that if all overdue amounts, of which you have been advised, are not received within 14 days from the date hereof, Trustco will deem the contract cancelled in terms of clause 17.1 of the main agreement.”

he would have come to the inevitable conclusion:

(a) That, the letter was an unequivocal expression by first respondent of an intention not to discharge its obligations under the agreement with effect from 3 June 2011 prior to the expiry of the 14 days; and

(b) That such conduct, at law, constitutes anticipatory breach of contract, or repudiation of contract from which first respondent was not entitled to approbate particularly as such repudiation was accepted and acted upon by appellant in notifying the regulatory authorities and its subscribers of the situation before the 3 June 2011, and proceeding to disconnect first respondent's system from its network.

(c) That such repudiation had been accepted by appellant in writing, or by the appellant's conduct in disconnecting first respondent's system from its network.

The learned judge in the court a quo thus erred both in fact and in the application of the law.

9. The learned judge in the court a quo erred in fact, and at law, by rejecting the submission that the facts of the matter before him related to repudiation of contract, or anticipatory breach, and was thus distinguishable from the case of Waste Management Services (Pvt) Limited that he relied upon in his judgment.

10. The learned judge in the court a quo erred in fact and law in failing to attach weight to various threats by first respondent to suspend its obligation under the contract and by creating the impression that the Trustco Mobile Concept worked flawlessly for nine months when the facts on the record showed repeated failures that were well documented and were not disputed.

11. In any event, the learned judge in the court a quo erred in granting relief to the second respondent in the absence of a finding that second respondent has a substantial interest in the matter particularly as the second respondent was not a party to the agreements between the parties in this matter.”

In their heads of arguments, the respondents also took a number of points in limine. Most were not persisted in save for two. These are:

(1) Whether the grounds of appeal are concise, and, if not, whether the appeal is fatally defective for that reason.

(2) That the appeal is not directed at the order but the reasoning of the court a quo.

I turn to deal with the above issues as well as the others that arise from the papers.

WHETHER THE INTERIM AND FINAL RELIEF SOUGHT ARE THE SAME

It is important at this stage to highlight the fact, that, the appeal to this Court is against the provisional order sought and granted by the court a quo.

The agreement between the parties has since run its course, and, therefore, the order sought on the return day no longer arises.

It is the appellant's submission, that, the court a quo erred in finding that the relief sought in the amended provisional order did not suffer from the same defect as the provisional order originally filed, and, further, erred in finding that the interim and final reliefs sought were not the same or substantially the same.

In particular, the appellant has submitted that the court a quo erred in granting a provisional order which is final in effect, and that, consequently, the respondents lost the incentive to have the provisional order so granted confirmed as it gave them final relief.

It is correct, that, in general terms, a court should not grant interim relief which is similar to or has the same effect as the final relief prayed for.

The reason for this is obvious.

Interim relief should be confined to interim measures necessary to protect any rights that stand to be confirmed or discharged, as the case may be, on the return date.

Indeed, in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H), the High Court slammed the tendency by some litigants to seek the same relief both as a provisional and final order. The court stated at p193A-C:

“The practice of seeking interim relief, which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole object of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case.

If the interim relief sought is identical to the main relief, and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case.

This, to my mind, is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day. The point I am making will become clearer if I put it another way.

If, by way of interim relief, the applicant had asked for a postponement of the election pending the discharge or confirmation of the provisional order she would not, in that event, gain an advantage over the respondents, because the point she wanted decided would have been resolved before the election was held. But, if the interim relief were granted in the form in which it is presently couched, she would get effective protection before she proves her case and the election will be conducted on the basis that is unlawful to wear T-shirts emblazoned with party symbols and slogans. Thereafter, it would be fruitless for the respondents to establish their entitlements to wear such T-shirts.

Care must be taken in framing the interim relief sought as well as the final relief so as to obviate such incongruities.”

I would certainly agree with the above remarks.

Although the learned judge in that case did not suggest that such a defect renders an application a nullity, it seems to me, that, whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application.

There may also be cases where the court itself, as it is empowered to do, may amend the relief sought in order to make it clear that what is granted is interim protection whilst the final order sought would be the subject of argument on the return date.

Rule 240 of the High Court Rules permits a court, after hearing argument, to vary an order sought.

It is this power to grant an order that is consistent with the facts which a court can use in order to obviate a situation where final relief is granted by way of a provisional order.

The order granted in the interim was to restore the internet links and to ensure the protection of the respondents rights in the concept. The order obliges the parties, during that limited time, to perform in terms of the contract.

In other words, the provisional order merely restored the status quo ante.

On the other hand, the order to be confirmed or discharged on the return date was to operate in contemplation of and pending the process of arbitration. It also sought to cast a broad obligation on the appellant not to conduct itself in a manner inconsistent with the agreement.

In other words, on the return date, the respondent would have been required to show not only why the status quo ante should be confirmed but also that it was entitled to interdict the appellant from acting in a manner which might interfere with the broader demands of the agreement.

In my view, the situation can be described in a more succinct manner.

In the interim, the status quo ante was to be restored. On the return day, and only if the respondent proved that there was a binding agreement still in force, and, consequently, that the parties were obliged to go for arbitration, would the order be confirmed.

In other words, if, on the return day, the appellant proved that the agreement had terminated or that the dispute was not subject to arbitration, the provisional order would be discharged.

The mere restoration of the links was not to be panacea for the respondents problems. At the end of the day, the agreement was about the payment of money, and, this was not going to happen if the respondent sat back in the hope that it had achieved, through the provisional order, what it required by way of final order - the very situation which Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) cautions against.

In all the circumstances, therefore, I am of the view that the interim relief prayed for did not have the same effect as the final order sought.

Accordingly, this ground of appeal must fail.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Whether the court a quo correctly determined that the matter was urgent...,. An order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment.This is akin to a Bank ...

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court granting a spoliation order in terms of which the appellants were ordered to restore possession of Danga 16442, Oceana 5545, Reedbuck 25535BM, Reedbuck 15535BM and Lucky 8260BM mining claims (hereinafter referred to as “the mining claims”) to the ...

FACTUAL BACKGROUND

The facts on which the court a quo granted the spoliation and contempt of court orders are as follows:

The first appellant (Peter Valentine) and Tapiwa Gurupira, a director and owner of the entire shareholding in the first respondent, have been having disputes concerning the ownership and possession of the above-mentioned mining claims. They litigated in the High Court over the ownership and/or control of the (five) 5 mining claims by the first respondent.

On 24 March 2022, with the authority of the first appellant, the second appellant (Allen Sibanda) invaded the first respondent's five (5) mining claims.

The first appellant claimed, that, he was authorised to do so by the order of the High Court under HC3419/20.

The first respondent filed an urgent application before the court a quo seeking an order for a mandament van spolie against the appellants. It sought the restoration of its access to, possession, and occupation of the (five) 5 mining claims located in Shurugwi District in the Midlands Province.

In its founding affidavit, deposed to by Tapiwa Gurupira, the first respondent submitted, that, it is the registered owner of the (five) 5 mining claims which the appellants invaded on 24 March 2022. It stated, that, the second appellant sent his people to forcefully take over the (five) 5 mining claims from it and ordered its workers to leave the claims.

He alleged, that, they came with all sorts of fighting tools and took possession of the five (5) mining claims. The first respondent's employees attempt to resist the taking over of the mines was subdued by threats of violence and the death of a resident of the area who was found hanging on a tree in what appeared to them to be a murder disguised as suicide.

The first appellant's challenge to Tapiwa Gurupira's ownership of the first respondent was resolved in HC119/18 in which the High Court ordered as follows:

“1. A final interdict is granted barring first, second, and third respondents, their employees, assigns, associates, affiliates, and any other persons acting under their authority from entering all mining locations owned by first applicant which are, namely: Impaluli 4 Mine Shurugwi; Danga 3 Mine Shurugwi; Sheba 2 Mine Shurugwi; Jasper 4 Mine Shurugwi; Paradox Mine Shurugwi; Matebele Mine Shurugwi; Lucerne Mine Shurugwi; Johanna's Luck Mine Shurugwi; Lucrative Mine Shurugwi; Ocean Mine Shurugwi; Reedbuck 1 Mine Shurugwi; Reedbuck 2 Mine Shurugwi; Lucky Mine Shurugwi; Cav Mine Shurugwi.

2. First respondent's appointment as an accredited agent of the first applicant be and is hereby declared null and void of all force and effect and is hereby set aside.

3. Fourth respondent be and is hereby ordered to restore second applicant as an accredited agent in respect of the mines named in para 1 of this order.

4. First, second, and third respondents shall pay costs of this application on the higher scale of legal practitioner and client.”

The first appellant was the first respondent in HC119/18 against whom the final interdict was granted and whose accredited agency over the first respondent was set aside. Tapiwa Gurupira was the second applicant whose accredited agency over the mines named in paragraph 1 was restored by paragraph 3 of HC119/18.

After the granting of the orders in HC119/18, the first appellant did not enter the mining claims mentioned in paragraph 1 of HC119/18 nor cause anyone to do so.

In HC308/20, the first respondent, and a company called Reytalon, at the instance of the first appellant, applied for the nullification of Tapiwa Gurupira's acquisition of 100 per cent of the first respondent's shares.

The application was dismissed by the High Court in HH01–21.

The first respondent submitted, that, pursuant to the order granted by the High Court in HC119/18, it had been in peaceful and undisturbed possession of its mining claims until 24 March 2022 when the second appellant, under the first appellant's authority, invaded the mining claims and chased away its employees. The appellants demanded that the first respondent's workers vacate the mines and proceeded to take them over.

Tapiwa Gurupira reported the invasions to the police which referred him to the Provincial Mining Director.

The Provincial Mining Director, on 4 April 2022, wrote a letter instructing the police to help the first respondent to regain possession of the mining claims. However, on 6 April 2022, the Provincial Mining Director withdrew the letter of support. This prompted the first respondent to immediately apply for a spoliation order against the appellants and a contempt of court order against the first appellant.

The first respondent contended, that, the court orders in HC119/18 and HC308/20 are still extant, and, as such, the first appellant, by defying the order in HC119/18 is in contempt of court. The first respondent sought an order for the restoration of the status quo ante. It also sought an order for contempt of court against the first appellant.

On the other hand, the appellants opposed the application and raised preliminary points to the effect, that, the matter was not urgent since the first respondent had not approached the court immediately after 24 March 2022 when the alleged invasions occurred. The appellants also challenged Tapiwa Gurupira's authority to act on behalf of the first respondent, and argued that he was misrepresenting himself before the court since there was no valid resolution before the court. They also contended, that, Tapiwa Gurupira had dirty hands because he had not complied with an extant order of the High Court in HC4092/20 directing him to serve the first respondent's shareholders and directors in Israel.

On the merits, the appellants argued, that, the mining claims in question had been forfeited for non-payment of inspection fees, and, the first appellant, as one of the directors of the first respondent, proceeded to pay the inspection fees. He therefore contended, that, he did not commit acts of spoliation as he was in lawful occupation of the mining claims. The first appellant submitted, that, he is the rightful owner of the mining claims since he paid the inspection fees, and, as such, his possession of the mining claims could not be faulted.

The appellants also argued, that, they had not invaded the mining claims as there had been a voluntary surrender by the first respondents employees. They, therefore, sought the dismissal of the first respondent's application.

The court a quo held, that, the matter was urgent since the first respondent had acted when the need to act arose, on 6 April 2022, when the Provincial Mining Director withdrew his letter of support to the police, leaving the first respondent with no other option besides having to apply for a spoliation order against the appellants and contempt of court order against the first appellant. It found, that, the first respondent treated the matter with the urgency it deserved and filed the application after exhausting alternative remedies.

The court further held, that, Tapiwa Gurupira had the requisite authority to represent the first respondent as evidenced by the resolution filed on record and the previous court orders between the same parties which conferred him with the necessary authority.

On the issue of dirty hands, the court a quo found, that, an application for a spoliation order cannot be challenged on the basis of the dirty hands doctrine.

On the merits, the court a quo held, that, the application for a spoliation order had been proved as the appellants had not denied invading and taking over the first respondent's mining claims. It held, that, the appellant's taking-over of the mining claims, and demand that the first respondent's workers leave the claims, constituted spoliation. It also held, that, the fact that the appellants were armed vitiated consent and was a clear act of spoliation.

In respect of the appellants reliance on the High Court's order in HC3419/20 the court a quo held, that, the order that the appellants sought to rely on did not give them any right to occupy the mining claims without relying on a warrant of execution, and, in any event, the order did not allow them to illegally occupy the (five) 5 mines. It only ordered the Provincial Mining Director and the Minister of Mines to allow the first appellant to resume mining at the Impaluli claim.

That order could only be executed through due process in respect of the Impaluli claim.

No similar order was made in respect of the (five) 5 claims the appellants invaded. HC3419/20 only ordered the Provincial Director of Mines and the Minister of Mines to allow the first appellant to pay inspection fees for the mines they invaded.

The court a quo held, that, the first respondent had proved that it was in peaceful and undisturbed possession of the mining claims when the appellants despoiled it. The court further found, that, the first appellant was in contempt of court for failing to obey an extant court order in HC119/18.

It therefore granted a spoliation order against the appellants and a contempt of court order against the first appellant.

It is against these orders that the appellants appealed to this Court. The appeal is premised on the following grounds of appeal:

“1. The High Court grossly erred in finding, that, the application before it was urgent in the face of evidence showing, that, the first respondent had not acted when the need to act arose on the 16th of March 2022.

2. The High Court further grossly erred in finding, that, Tapiwa Gurupira had the authority to represent the first respondent and institute proceedings on its behalf when he had placed before the court an invalid instrument of authority; a resolution bearing a date which had not yet arrived as the date of a meeting authorising him to act on its behalf.

3. The High Court further grossly erred in failing to find, that, the founding affidavit of Tapiwa Gurupira, in para 11, contained an alteration which rendered it invalid.

4. The High Court further grossly erred in finding, that, the first respondent was in peaceful and undisturbed possession of the mines in issue in the face of evidence showing, that, Chamunorwa Daniel Gozhora was in possession of Lucky Mine as an independent actor, and with his own assets and equipment, and in the absence of any evidence of the possession of any other mine.

5. The High Court further grossly erred in failing to find, that, there was a peaceful handover by the said Chamunorwa Daniel Gozhora of Lucky Mine to the second appellant, and, therefore, there was no justification for the grant of a spoliation order.

6. The High Court further grossly erred in failing to find, that, the appellants, acting in accordance with a court order in case number HC3419/20, had renewed the mining certificates in respect of the relevant mines and therefore were in peaceful and undisturbed possession of the mines.

7. The High Court further grossly erred in finding, that, the first appellant had been served or was otherwise aware of the terms of the court order in case number HC119/18 and therefore that a requirement for contempt of court had been established.

8. The High Court further grossly erred in finding, that, the first appellant had intentionally acted in any manner as to violate the terms of an extant court order when he had not presented himself at any of the mines and it had not been established that any other person had acted on his behalf.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the court a quo misdirected itself in holding that the matter was urgent and that Tapiwa Gurupira had authority to represent the first respondent.

He asserted, that, the resolution submitted on behalf of the first respondent was forged as it had a future date, which meant that it was passed after the proceedings had already been instituted. He submitted, that, Tapiwa Gurupira, being one of the directors of the first respondent, could not have given himself the authority to represent the first respondent, and, as such, he was not properly before the court.

On the merits, he argued, that, the first respondent was not in peaceful and undisturbed possession of the property in question given the fact that Tapiwa Gurupira was not in possession of the mines in issue since he was not physically present at any of the mines. He further contended, that, the takeover was not forceful since the first respondent's manager negotiated with the persons taking over the mines.

Counsel for the appellant submitted, that, there was no act of spoliation and there was, therefore, no justification for the orders granted by the court a quo.

Per contra, counsel for the first respondent argued, that, the first respondent had been in peaceful and undisturbed possession of the (five) 5 mining claims pursuant to the extant court order which clearly stipulated that the first respondent was the owner of the mining claims. He further submitted, that, to prove its peaceful possession, the first respondent had renewed its mining certificates over the mining claims and the appellants unlawfully dispossessed it of the claims.

Although the appeal is premised on eight grounds, only four issues arise for determination. These are:

1. Whether or not the court a quo correctly found that the application was urgent.

2. Whether or not the court a quo correctly found that Tapiwa Gurupira had authority to represent the first respondent and that his founding affidavit was valid.

3. Whether or not the court a quo erred in granting the first respondent a spoliation order.

4. Whether the court a quo correctly found that the first appellant was in contempt of court.

I now turn to deal with each of these issues, taking into consideration the submissions made by counsel for the parties.

WHETHER OR NOT THE APPLICATION WAS URGENT

The appellant's counsel raised the issue of urgency on appeal in spite of this Court's decision in C.G.D Chiwenga v M. Mubaiwa SC86-20 where this Court held, that, the hearing of a matter on an urgent basis is not appealable as it does not affect the correctness of a judgment arrived at after a litigant is allowed to be heard ahead of other litigants. At p10 of the cyclostyled judgment, the court said:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason, that, the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is rightly or wrongly allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors (SC28-18…,.) this Court held, that, a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal. Thus, the appeal against urgency was ill conceived and misplaced.

The court therefore finds no merit in the appellants complaint that the matter was improperly heard as an urgent matter.”

I therefore need not determine this issue as it is a mere complaint which should not have been raised as a ground of appeal.

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

This is an appeal against the entire judgment of the High Court (“the court a quo”) wherein it dismissed the appellants point in limine, that, the respondents application before it was a nullity for non-compliance with Rule 59 of the High Court Rules 2021 (“the Rules”).

At the hearing of the appeal, counsel for the first and second respondents (Lorraine Elizabeth Heyns and Kurt Louis Heyns) raised a point in limine to the effect, that, the present appeal was fatally defective for the reason, that, it had been noted without the leave of the court a quo, as the appeal is against an interlocutory order.

This judgment will thus be confined to the determination of this point in limine.

FACTUAL BACKGROUND

The parties are embroiled in a dispute over ownership of an immovable property known as a Certain Piece of Land Situate in the District of Hartley, called the Remainder of Westhey of Sabonabon Estate measuring 97,0653 hectares and held under Deed of Transfer Number 4110/92 (“the property”).

The first and second respondents approached the court a quo by way of an urgent court application for an order declaring certain court applications, instituted under the various case numbers, stated in their draft order, to be null and void ab initio; a declaration, that, the company known as Balwearie Holdings (Private) Limited, registered under Company Number 45/77, is the legitimate owner of the property; and, an order that the first, second and twelfth respondents have no enforceable rights or interests in the property.

They also sought a declaration, that, the first to eighteenth respondents have acted in common purpose to illegally acquire title in the above-described immovable property.

Further, there was consequential relief which was being sought as detailed in the draft order.

The application was opposed by the appellants as well as the third to the eighteenth respondents.

Following indications from some of the parties that they had preliminary objections to raise, the court a quo directed that the parties file their opposing papers.

The appellants (Gaynor Chitsaka, Herbert Mawema, Bherebende Law Chamber and W.O.M. Simango and Associates) in their opposing papers, raised two preliminary points, namely;

(a) Whether the application was fatally defective and therefore invalid for non-compliance with Rule 59 of the High Court Rules 2021; and

(b) Whether the matter was urgent.

PROCEEDINGS BEFORE THE COURT A QUO

The appellants submitted, that, the court application was fatally defective for non-compliance with Rule 59 of the High Court Rules 2021, in that it was not in the prescribed form.

They further submitted, that, the form used did not contain the mandatory plethora of procedural rights which are designed to inform them of their rights and obligations in relation to the application.

In response, the respondents submitted, that, the form used substantially complied with the requirements of Rule 59 of the High Court Rules 2021.

In the alternative, they argued, that, the court could invoke its inherent powers to deal with the application notwithstanding the failure to comply with the exact form required by the Rules.

The appellants further challenged the hearing of the application on an urgent basis mainly on two grounds:

(i) Firstly, they contended that the certificate of urgency did not show that the certifying legal practitioner applied an independent mind to the matter.

(ii) Secondly, they argued that the circumstances of the matter did not reveal any form of urgency.

FINDINGS OF THE COURT A QUO

The court a quo found, that, the current Form 23 is what used to be Form 29 of the now repealed High Court Rules 1971.

It does not contain the dies induciae. This is provided for in Rule 59(6) of the High Court Rules 2021.

Contrary to the submission made on behalf of the appellants, the period of ten days is not a mandatory requirement. The Rules refer to a dies induciae of “not less than ten days”. It further found, that, the Rules allowed a court application to specify a shorter period of a dies induciae, if the court, on good cause shown, agrees to such a shorter period.

Whilst the court a quo agreed that the form used by the first and second respondents was defective because it did not inform the appellants of the nature and scope of the notice of opposition; the consequences of a failure to file opposing papers within the dies induciae specified in the court application; and the failure to specify the High Court station at which the opposing papers were to be filed, the court found that such defects were not fatal to the application and did not prejudice the respondents in any manner.

Consequently, it dismissed the point in limine challenging the validity of the application.

In relation to the issue of urgency, the court a quo held, that, there was no requirement for a certificate of urgency in an urgent court application. The court stated, that, the certificate of urgency was only required in urgent chamber applications, in line with the provisions of Rules 60(4)(b) and 60(6) of the High Court Rules 2021.

The court further made a finding, that, the application before it did not specify when the need to act arose and, on this point alone, it held that the matter before it was not urgent.

The court further held, that, the irreparable harm which the first and second respondents would suffer had not been established.

The court also ruled, that, the declaratory and consequential relief being sought by the first and second respondents did not qualify for an urgent hearing.

As a result, the court a quo ordered that the matter be struck off the roll of urgent matters. It also ordered, that, the respondents file opposing papers, on the merits of the matter, within ten days of the order.

THE APPEAL

Dissatisfied by the decision of the court a quo, the appellants noted the present appeal on the following single ground:

GROUND OF APPEAL

The proceedings in the court a quo were void ab initio for the reason, that, the purported application by the first and second respondents was a nullity for non-compliance with Rule 59(6) of the High Court Rules 2021, with the result that the court a quo erred in law in not so finding and in:

1.1 Striking off the matter from the roll of urgent matters as there is no such roll for urgent court applications; and

1.2 Ordering the appellants to file opposing papers to a nullity.

The appellants pray that the appeal be allowed with costs and that the judgment of the court a quo be set aside and substituted with an order upholding the point in limine regarding the invalidity of the application and that the application be struck off the roll.

SUBMISSIONS BEFORE THIS COURT

Counsel for the first and second respondents submitted, that, the appeal was invalid as a result of the appellants failure to seek leave to appeal. He argued, that, the judgment which was being appealed against was an interlocutory order; as such, in terms of section 43(2)(d)(i) of the High Court Act [Chapter 7:13] (the Act), the appellants ought to have obtained leave to appeal before lodging their appeal.

Counsel for the first and second respondents prayed for costs de-bonis propriis on the basis, that, the first and second respondents had written a letter to the appellants advising them of the need to seek leave before noting the appeal, which letter the appellants ignored.

He further added, that, the appellants failed to address the case authorities that the respondents had highlighted in their letter and in their heads of argument.

He further contended, that, amongst the appellants were legal practitioners who should know the law.

He further argued, that, the appellants counsel was not new to the issue of seeking leave in relation to interlocutory orders.

He submitted, that, counsel for the appellants argued the matter in Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20 where the matter was struck off the roll on account of failure to seek leave.

In the event that the court was not inclined to award costs de bonis propriis, counsel sought costs on a higher scale for the reason, that, the appeal was lodged mainly to frustrate the proceedings a quo.

Per contra, counsel for the appellants, argued, that, the dismissal of the preliminary point which they had raised before the court a quo resulted in a decision which was final and definitive. He submitted, that, the preliminary point went to the root of the application that was before the court a quo, hence, the decision was not interlocutory.

Counsel contended, that, the dismissal of the preliminary point yielded an automatic appeal, thus, there was no need to seek leave to appeal.

Regarding costs, counsel for the appellants stated, that, both costs de bonis propriis and costs on a higher scale were unwarranted.

THE ISSUE

The present appeal can be disposed of by the determination of the question whether the order granted by the court a quo, dismissing the appellants preliminary point regarding the invalidity of the application before it, was an interlocutory order.

THE LAW

The question whether an order is interlocutory or not is a well-trodden path within and outside this jurisdiction.

In the locus classicus, South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, the court, in defining what an interlocutory order is, stated the following:

“(a) In a 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:

1. Those which have a final and definitive effect on the main action; and

2. Those known as 'simple (or purely) interlocutory orders' or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at pp.890-1; Steytler N.O. v Fitzgerald supra at pp.303, 311, 325-6, 342; Globe and Phoenix Gold Mining Co. Ltd v Rhodesian Corporation Ltd 1932 AD 146 at pp.153, 157–8, 162-3; Pretoria Garrison Institutes v Danish Variety Products supra at pp.850, 867.

(b) Statutes relating to the appealability of judgments or orders (whether it be appeal ability with leave or appealability at all) which use the word 'interlocutory' or other words of similar import, are taken to refer to simple interlocutory orders.

In other words, it is only in the case of simple interlocutory orders that the statute is read as prohibiting an appeal or making it subject to the limitation of requiring leave, as the case may be.

Final orders, including interlocutory orders having a final and definitive effect are regarded as falling outside the purview of the prohibition or limitation: see, generally, Steytler's case supra at pp.304, 312,326, 345-6;

(c) The general test as to whether an order is a simple interlocutory one or not was stated by SCHREINER JA in the Pretoria Garrison Institutes case, supra, as follows (at p.870):

'…, a preparatory or procedural order is a simple interlocutory order, and, therefore, not appealable, unless it is such as to 'dispose of any issue, or any portion of the issue, in the main action or suit' or which amounts, I think, to the same thing, unless it 'irreparably anticipates or precludes some of the relief which would or might be given at the hearing.'"

The above position of the law has been followed in this jurisdiction as enounced in a number of cases: see Gillespies Monumental Works P/L v Zimbabwe Granite Quarries P/L 1977 (2) ZLR 436 (H); Mwatsaka v ICL Zimbabwe 1988 (1) ZLR 1 (H); Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20; Al Shams Global BVI Limited v Deposit Protection Corporation & Ors SC52–22.

In Trust Merchant Bank Limited v Mako Properties (Pvt) Ltd t/a Musuna Safaris & Travel SC73–02 CHIDYAUSIKU CJ restated the applicable test on whether an order is interlocutory as follows:

“It is clear from its form and effect, that, the order made by the learned judge is an interlocutory order within the meaning of section 43(2)(d) of the Act. In Steytler N.O. v Fitzgerald 1911 AD 295, at 305, LORD de VILLIERS CJ said, that, the test whether or not an order was interlocutory was:

'Whether on the particular point in respect of which the order is made the final word has been spoken in the suit, or whether in the ordinary course of the same suit, the final word has still to be spoken.'”…,.

MALABA DCJ…, in the case of Blue Ranges Estates (Pvt) Ltd v Muduviri and Anor 2009 (1) ZLR 368 (S)…, further elaborated on the test as follows:

“To determine the matter, one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect to which relief is sought from the court.

An order for discovery or extension of time within which to appeal, for example, is final in form but interlocutory in nature. The reason is that it does not have the effect of determining the issues or cause of action between the parties.”…,.

The learned authors, HERBSTEIN and Van WINSEN, in their book Civil Practice of the High Courts of South Africa, 5th ed, Juta…, define an interlocutory order as:

“…, an order granted by a court at an intermediate stage in the course of litigation, settling or giving directions with regard to some preliminary or procedural question that has arisen in the dispute between the parties.”

The essential elements of an interlocutory order that are coming out of the above authorities can be summarized as follows:

(i) It is an order granted at an intermediate stage in the course of litigation of the dispute between the parties.

(ii) It could relate to a preliminary or procedural question that would have arisen in the course of dealing with the main dispute.

(iii) The final word still has to be spoken in the suit.

(iv) Its an order pronounced upon matters incidental to the main dispute, preparatory to, or during the progress of litigation.

(v) It can be final in form but interlocutory in nature, in that, it does not have the effect of determining the cause of action between the parties.

It is a settled principle of law, and is statutorily provided for, that, no appeal lies against an interlocutory order without the leave of the court which gave that order, or, where it is refused, without the leave of this Court.

This is laid out in section 43(2)(d) of the High Court Act [Chapter 7:06] in the following manner:

“43 Right of appeal from High Court in civil cases

(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….,.”

Nevertheless, there are three instances in which an appeal against an interlocutory order may be noted without the leave of court. These three exceptions are provided for in the aforementioned section as follows:

(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.

APPLICATION OF THE LAW TO THE FACTS

In their heads of argument, the first and second respondents contend, that, the court a quo's judgment was not a final and definitive judgment as it did not bring the dispute between the parties to finality.

The appellants, on the other hand, insist that the court a quo's failure to hold, that, the proceedings before it were void ab initio resulted in a judgment which was final and did not require leave to be appealed against.

The court a quo was called upon to determine, in limine, whether or not the application before it was a nullity.

It determined that the application was valid.

Such a judgment is appealable without leave for the simple reason, that, it is not covered by any of the three prohibitions in section 43(2) of the High Court Act [Chapter 7:06].

A judgment that refuses to find that proceedings before a court are void ab initio cannot be interlocutory as it goes to the root of the litigation and has far reaching consequences as to fall outside the contemplation of the word “interlocutory” as used in section 43(2) of the High Court Act [Chapter 7:06].

Such a judgment forces a respondent to participate in subsequent proceedings that may be a nullity. This creates an absurdity not contemplated by the legislature in enacting the prohibition relating to 'interlocutory' orders.

In the circumstances, leave to appeal was not required.

In my view, the order granted by the court a quo fits squarely into the essential elements of an interlocutory order such as I have alluded to above in paragraph 25.

The court a quo dismissed the point in limine raised by the appellants, regarding the validity of the application before it, and gave an order striking the application off the roll of urgent matters.

In so doing, the court did not make a determination on the merits of the dispute between the parties. At the time the court a quo made the order “the final word has still to be spoken” regarding the cause of action between the parties.

The decision did not bring the rights of the parties, in relation to the dispute between them, to a final and definitive determination.

This is fortified by the fact, that, the court a quo went further and directed the respondents, before it, to file notices of opposition to the application on the merits. The main dispute between the parties was referred to the roll of ordinary court applications for a resolution.

This part of the order undoubtedly indicates, that, the dispute between the parties had not been resolved. It was still awaiting final determination.

The decision of the court a quo, although final in form, is purely interlocutory in nature, and would certainly require the leave of the court a quo.

Whilst counsel for the appellants was correct, that, the order issued by the court a quo was final, it is only final in form, but, interlocutory in nature, and does not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act.

In my view, litigants need to understand, that, finality of the order is not the determinant factor. One needs to go further and examine the nature of the order. The question that one must ask oneself is whether the order, though final, disposes of the main dispute between the parties. If it does not, then, it is an interlocutory order.

No absurdity will be created by the main matter proceeding as the appellants can appeal the decision - with the leave of the court a quo.

This appeal, having been filed without the leave of the court a quo, is improperly before the court. Consequently, I uphold the point in limine raised by the first and second respondents.

There is one issue which has caused me some disquiet, which issue, in my view, might have taken this matter this far. It concerns the manner in which the court a quo handled the urgent court application before it.

When seized with an urgent court or chamber application, and points in limine are taken, including that the matter is not urgent, the first point to be determined is whether the matter meets the requirements of urgency. If the court determines that the matter is urgent it then goes on to deal with the other points in limine, starting with those that have the potential to terminate the proceedings.

If the court a quo had adopted the correct approach and found, as it did, that the matter was not urgent, it should have ended there. The issue whether the application before the court was valid or not would then have been properly dealt with on the ordinary roll.

One can understand the appellants confusion.

When the matter comes up on the ordinary roll for determination, they can no longer raise the issue, regarding the validity of the application, lest they are confronted with a special plea of res judicata.

That, however, in my view, does not change the character of the order. It remains interlocutory in that it determined a procedural issue....,.

DISPOSITION

In light of the foregoing analysis, the point in limine, that, leave to appeal should have been sought, must be upheld. The order granted by the court a quo has all the attributes of an interlocutory order.

Accordingly, it is ordered as follows:

1. The matter be and is hereby struck off the roll.

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Zimbabwe

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

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

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

Appealed
SCSC87-22 : FISANI MOYO and VALENTINE MINE vs BLANKET MINE (1983) (PVT) LTD and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA 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

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

Appealed SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

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

Appealed SCSC87-22 : FISANI MOYO and VALENTINE MINE vs BLANKET MINE (1983) (PVT) LTD and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

View Appeal HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: KABASA J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

View Appeal SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

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Law Portal
Zimbabwe

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

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

Appealed
SCSC87-22 : FISANI MOYO and VALENTINE MINE vs BLANKET MINE (1983) (PVT) LTD and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA