Judgment No. CCZ 7/2014 8
Const. Application No. 41/2014
There is no doubt that a judge of the Constitutional Court may grant interlocutory
relief by way of an interim order pending determination of a constitutional matter by the full
bench of the court. Section 166(3) of the Constitution provide for interlocutory matters to be
heard by one or more judges of the court. See Williams & Anor v Msipha N.O. & Ors 2010(1)
ZLR 552(S) at 562H-563A.
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