Judgment No. SC 27/18
Civil Appeal No. SC 173/17
On 2 March 2017, the High Court granted a provisional order, for the return of
all the goods that had been attached and removed in execution. The court also ordered first and
second applicants to refrain from selling the goods until the dispute between the parties had
been resolved.
On 3 March 2017 the second respondent filed an appeal against the judgment
of the court a quo. The applicants contend that the legal practitioners, should not have
successfully filed the appeal without the leave of the court. It was their contention that as the
order related to an interim order, the second respondent should have sought leave from the
court a quo in compliance with s 43 of the High Court Act [Chapter 7:06]. They thus sought
an order setting aside the decision of the registrar accepting the notice of appeal and an order
declaring the appeal that was before the Supreme Court a nullity.
The registrar filed a report in terms of r 12 of the Supreme Court Rules 1964
stating that they had accepted the notice of appeal as the order which had been granted was in
the form of a mandatory interdict and thus did not require the leave of the court a quo. The
second respondent denied that they required leave to appeal from the court a quo. He also
argued that the matter was not properly before the court as the order sought could not be granted
by a single judge in chambers. The second respondent also raised the point that the applicants
were in fact seeking a declaratur and this could not be granted.
It is trite that when the Supreme Court is seized with an appeal, such an appeal
cannot be struck off the roll by one Judge in Chambers. In the case of Blue Rangers Estates
(Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC), an applicant approached a single Supreme Court
judge in Chambers seeking the relief that the matter be struck off the roll. Applicant therein
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