Judgment record
Edward Mark Warhurst N.O v Jacobus Kotze Carstens and The Sheriff of the High Court of Zimbabwe and The Zimbabwe Republic Police
HH 504-21HH 504-212021
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HH 504-21
HC 4529/21
EDWARD MARK WARHURST N.O
versus
JACOBUS KOTZE CARSTENS
and
THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
and
THE ZIMBABWE REPUBLIC POLICE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 13, 14 and 15, 17 and 22 September 2021
URGENT APPLICATION – LEAVE TO EXECUTE PENDING APPEAL
E. Mubaiwa, for the applicant
F. Munyamani with R Nyamutowa, for the 1st respondent
CHIRAWU-MUGOMBA: This matter was placed before me as an urgent application
for leave to execute pending appeal. The background is as aptly captured in HH 424-21. In
that matter, the court granted an interim order which for the sake of convenience is captured
hereunder.
INTERIM ORDER GRANTED
Pending finalisation of this matter an interim order be and is hereby granted in the following
terms:-
1. First respondent is directed to surrender the books of account, gold and assets of
Rolldice Mining Services (Pvt) Ltd to applicant within 24 hours of this order
consistent with applicant’s directive of 22 June 2021.
2. First respondent is barred from accessing Gloy Mine or any business premises or
place of business or place of operations of Rolldice Mining Services (Pvt) Ltd, and
from in any way interfering with applicant’s official duties and operations at the mine.
The first respondent has noted an appeal to the Supreme Court against the interim order and
has taken seven grounds as follows:-
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1. The court erred at law and in fact in its finding that the appellant enjoyed the right
of use and occupation of the house on Gloy Mine by reason of his employment by
Rolldice Mining Services (Pvt) Ltd when in fact the appellant is the owner of the
mining claims where the house is located and in turn owner of the house.
2. The court a quo erred at law and in fact in ordering the appellant to vacate from
his accommodation at Gloy Mine under circumstances where the first respondent
failed to show that he enjoys greater right to the accommodation than that of
appellant.
3. The court a quo erred in ordering the appellant to surrender gold to the first
respondent in a manner that offends the Gold Trade Act.
4. The court a quo erred at law and in fact in failing to consider that the matter was
already lis pendens between the parties by reason that a prior matter between the
same parties pertaining to the same matter in HC 3084/21 remains pending before
the court.
5. The court a quo erred in failing to consider that the non-joinder of the Master is
material to the matter.
6. The court a quo erred by failing to consider the legality of the first respondent’s
action when he delegated his functions as Judicial Manager to the deponent of the
founding affidavit and the effect of the delegation to the application.
7. The court a quo erred in failing to consider the effect of citing the third respondent
as such in circumstances where the third respondent does not exist as a party to
litigation.
CHIDYAUSIKU CJ, in Zimbabwe Mining Development Corporation and anor v African
Consolidated Resources plc and ors, 2010 (1) ZLR @ 37 E aptly stated that ,
“At common law the noting of an appeal against a judgment suspends the operation of that
judgment. It is also trite that at common law the court granting the judgment enjoys the
inherent jurisdiction to order the execution of the judgment despite the noting of an appeal”.
In my view, an application to execute a judgment pending appeal is one which must
be viewed from the background of the constitution. Section 56(1) states that all persons are
equal before the law. Section 69 makes provision for the right to a fair hearing. Potentially
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granting such an application may infringe the rights of a respondent in that their appeal to the
Supreme Court may end up being an academic exercise. The beauty of the law however is
that, there are specific considerations that a court must make in such matters. To that extent, I
can do no better than quote extensively from the judgment of CHAREWA J in Premier Medical
Aid Society v. Mandishona, HH 219-17 as follows.
“THE LAW
The requirements to succeed in an application for leave to execute pending appeal.
The Supreme Court has settled the law governing an application for leave to execute pending
appeal (in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S)
@281A-D) The markers laid down by the Supreme Court are that the court to which such an
application is made has a very wide discretion whether to grant or refuse such leave. In
exercising such discretion, the court must determine what is just and equitable having had
regard to the following requirements:
i. The potential for the appellant (respondent in the application) suffering irreparable
harm or prejudice should leave be granted;
ii. The other side of the coin being the potential for the respondent (applicant in the
application) to suffer irreparable harm or prejudice should the leave to execute be
denied;
iii. The balance of hardship or convenience should there be potential of irreparable harm
to either the appellant or the respondent; and finally
iv. The prospects of success on appeal. In this regard, the court must consider whether
the appeal is frivolous and vexatious, or is not bona fide, either because it is not a
genuine search to reverse the judgment but is meant to gain time or harass the other
party.
The requirements to withstand an application for leave to execute pending appeal
Therefore, in order to succeed against an application to execute pending appeal, the
respondent must show that
i. There are good or reasonable prospects of success on appeal,
ii. The potential harm in allowing execution pending appeal is irreparable; and/or
iii. The balance of hardship weighs in its favour”.
It seems to me, the proper approach will be to start with prospects of success on
appeal, an approach that the Constitutional Court adopted in Streamsleagh Investmensts (Pvt)
Ltd. v Autoband Investments (Pvt) Ltd, CCZ 45/14. Invariably the court is called upon to
reflect on the grounds of appeal filed before the superior court. In its opposing affidavit the
first respondent raised a point in limine to the effect that the deponent to the founding
affidavit has no right at law to do so on the basis of delegation. It is noted that this issue is
one of the grounds of appeal and will therefore be addressed accordingly. Although the issue
of urgency was raised in the first respondent’s opposing affidavit, it was not pursued at the
hearing. It is also recorded that the first respondent’s legal practitioner Mr Munyamani with
the concurrence of co-counsel Ms Nyamutowa, conceded that ground 4 of the appeal has no
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merit. This concession is well made since as stated in HC 3646/21 (HH 424-21), a notice of
withdrawal with costs tendered was placed before the court.
Mr Munyamani also conceded that grounds 1 and 2 of the appeal are interlinked.
These two grounds are premised on the contention by the first respondent that he did not
enjoy right of use and occupation of the house on Gloy Mine by reason of his employment by
Rolldice Mining Services (Pvt) Ltd but on the basis that he is the owner of the mining claims
where the house is located. It is noted that the first respondent was dismissed from the
employee of Rolldice Mining Services and further that the labour officers order stipulates that
having been suspended, the first respondent’s entitlement to such benefits as accommodation
ceases and he is required to vacate the house. Such order is still extant. With respect to
ground 2 specifically there is a further contention by the first respondent that the applicant
does not enjoy a greater right to the accommodation. The applicant in casu approached the
court in his capacity as a judicial officer and he is entitled to ensure that all the assets of the
company are preserved. More poignantly, the two grounds address issues that are not part of
the interim relief. As correctly submitted by Mr Mubaiwa, it is clear from the interim order
that there is no issue of vacation or ownership but a prohibition pending the return date of
accessing the place of business. The first applicant has therefore appealed against a non-
existing order.
On ground number 3, Mr Mubaiwa submitted that the issue of contravention of the
Gold Trade Act [Chapter 21:03] was never pleaded and only appeared in the first
respondent’s heads of argument in HC 3646/21. Mr Munyamani submitted that it is a
question of law that can be raised at any time. Mr Mubaiwa made reference to the decision
in T.N Harlequin Luxaire Ltd and anor v Quest Motors Manufacturing (Pvt) Ltd, 2018 (1)
ZLR 652 on the principles relating to the raising of a point of law. That case confirms the
long held position of the law that a question of law may be raised or advanced for the first
time on appeal and similarly in any matter before a court provided that it does not cause
prejudice. MAKARAU JA (as she then was) eloquently @ p 655 – C-D stated as follows:-
“The rationale behind allowing the introduction of a point of law on appeal for the first time is
that the appeal court is duty bound to always to always come to the correct position of the law
on the issues that were before the court a quo as covered by the pleadings. It is therefore
inimical or contrary to its very existence for such a court to overlook the correct application
of the law merely on the basis that it has been argued at a late stage in the proceedings”.
More critically, @ p 655-656 G-A that,
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“A reading of the decision in Cole vs Government Of the Union of SA(supra) seems to
suggest that the permissible point of law being raised for the first time on appeal must be fatal
to one or more of the contentions of the other party. Indeed, it would serve no purpose for the
appellant to raise a point of law that does not meet the respondent’s case in a material way. In
other words, it would be pointless to raise a point of law that is not dispositive of the whole or
part of the appeal”.
In my view, the issue of the Gold Trade Act is neither here nor there. The interim
order does not ‘award’ the gold to the applicant in his individual capacity but in his capacity
as the judicial manager. Therefore issues of contravening the Act do not arise. In any event
the interim order is very specific that the gold and other assets are of Rolldice Mining
Services (Pvt) Ltd.
Mr Munyamani was very forceful in advancing ground number 5 of the appeal
relating to non-joinder of the Master. On the other hand Mr Mubaiwa submitted that the issue
raised by that ground of appeal related to the non-consideration of the non-joinder and not
that the court erred in not ordering joinder. This is based on the words, “in failing to
consider”. The court as per 3 of the cyclostyled judgment did consider joinder but dismissed
the issue. In any event, non-joinder is not fatal. It all depends on the relief sought. The
application was filed and heard before the coming into effect on the twenty- third of July
2021 of the High Court Rules, 2021. In my view, ground 5 has no merit for the very reason
stated by Mr Mubaiwa. Order 13, r 87 (1) of the repealed High Court Rules, 1971 makes it
clear that non-joinder is not fatal to a cause or matter. It is trite that a provisional order is
granted on the basis of a prima facie case – see OR 32 r 246 (2) applicable at the time of the
hearing of the case and now also r 60 (9) of the High Court Rules, 2021. The relief sought in
the interim did not depend on the Master being a party. In any event, part of the duties of the
judicial manager is to report to the Master and hence no prejudice was suffered. See
Amalgamated Engineering v Minister of Labour 1949 (3) SA 637.
With regard to ground number 6, a reading of the first respondent’s notice of
opposition in HC 3646/21 reveals that only two points in limine were raised that the court
dealt with. The issue of delegation was as a matter of fact raised as part of the merits and was
linked to the fact that the Master ought to have been cited. The court noted on page 3 of the
cyclostyled judgment that the first respondent has since filed an application for the removal
of the applicant as judicial manager which is the proper forum for raising such issues of
delegation.
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Ground 7 of the appeal addresses the issue of citation of the third respondent as a
party. In my view, there was no need for the court a quo to consider it at all. This is as rightly
pointed out by Mr Mubaiwa, due to the fact that the third respondent is only relevant at the
confirmation stage as per paragraph 3 of terms of the final order sought.
It should be noted that the first respondent’s opposing affidavit is tantamount to
having another bite at the cherry without addressing the issue of prospects of success on
appeal. In the final analysis, there is very little prospect of success in the appeal and the
applicant cannot be faulted for holding the view that the appeal was filed solely to frustrate
the execution of the order. In other words that the appeal is frivolous and vexatious – see
Kyriakos and anor v Chasi and ors, 2003(2) ZLR 399(H).
Mr Mubaiwa submitted that the applicant will suffer serious prejudice and hardship
should the order not be granted. The first respondent has refused to surrender the assets of
the company. There is risk that he will sell the assets, destroy or manipulate books. He has
already been found in the labour disciplinary proceedings to have misappropriated funds of
the company. The applicant on the other hand is concerned about the survival of the
company. Mr Munyamani submitted that the first respondent will suffer undue hardship
since he will be evicted from a house that he owns. He contends that he has obtained a loan
from Fidelity Refiners Printers through a mortgage bond obtained in his personal capacity. In
support he attached an unsigned Notarial Special Covering Bond. As correctly pointed out by
Mr Mubaiwa, the first respondent unwittingly aided the case of applicant for seeking leave to
execute pending appeal. He ‘confessed’ that he intends to place assets of the company under
a notarial bond thus prejudicing it. He placed before the court in casu, information that was
not placed in HC 3646/21. Weighing the hardship and prejudice between the two parties, the
balance tilts in favour of the applicant.
The court also raised the issue of appealing against an interlocutory order without
leave – see Hunt v Hunt, 2000(1) ZLR 165 where it was held that a provisional order is an
interlocutory order. See also Total Marketing Zimbabwe (Pvt) Ltd v Pollylamp Investments
(Pvt) Ltd, 2007(2) ZLR 60 (S). This was after noting that the first respondent did not seek
leave to appeal against an interlocutory order. Let me hasten to state however that non-
suiting the first respondent is an issue that can only be dealt with by the Supreme Court.
Mr Mubaiwa made an application to the effect that should the court be inclined to
grant the application, it should also make an order that any appeal filed by the first
respondent shall be of no force or effect without leave of the court. An order granting leave to
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execute pending appeal is interlocutory and leave to appeal is required. See Gillespies
Monumental Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd, 1997(2) 436 (H).
There is therefore in my view no need to include this provision in the order.
Costs are at the discretion of the court. In my view, the first respondent has noted an
appeal solely to buy time. He should therefore meet the costs.
DISPOSITION
It is ordered that:-
1. Leave be and is hereby granted to applicant to execute the operative order granted in
HC 3646/21 under judgment HH 421-21 pending the appeal noted by the first
respondent to the Supreme Court in case number SC 301/21.
2. The first respondent shall pay costs.
Venturas and Samkange, applicant’s legal practitioners
T. Pfigu Attorneys, 1st respondent’s legal practitioners