RioZim Ltd v Maranatha Ferrochrome (Private) Ltd (HC 4241 of 2020; HH 623 of 2020; Ref HC 6774 of 2018; REF HH 482 of 2020) [2020] ZWHHC 623 (2 October 2020)

RioZim Ltd v Maranatha Ferrochrome (Pvt) Ltd HH 623-20 HC 4241/20 Ref HC 6774/18 Ref HH 482-20 RIOZIM LIMITED versus MARANATHA FERROCHROME (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MAFUSIRE J HARARE, Interlocutory application – leave to appeal Date of written judgment: 2 October 2020 Adv T. Zhuwarara, for the applicant Adv F. Girach, for the respondent MAFUSIRE J [1] This is an interlocutory application. The applicant seeks leave to appeal my judgment delivered under the reference no HH 482-20. My judgment under the reference no HH482-20 was on an application for absolution from the instance made by the applicant at the close of the respondent’s case in a civil trial under the case reference no HC 6774/18. In the civil trial under the case reference no HC 6774/84 the respondent herein is the plaintiff, and the applicant herein the defendant. Therein the respondent claims payment of certain sums of money as compensation or as unjust enrichment. The details are unimportant. In any case, they appear fully in judgment no HH482-20 aforesaid. In that judgment, I refused the applicant’s application for absolution from the instance. Now in this application the applicant seeks leave to appeal to the Supreme Court against my refusal. Leave is necessary because HH 482-20 was an interlocutory judgment on an interlocutory matter. Section 43(2)(d) of the High Court Act, Cap 7:06, provides that such interlocutory judgments are not appealable unless with the leave of the judge. Towards e-justice RioZim Ltd v Maranatha Ferrochrome (Pvt) Ltd HH 623-20 HC 4241/20 Ref HC 6774/18 Ref HH 482-20 [2] In judgment no HH 482-20 aforesaid I gave reasons why absolution from the instance at the close of the respondent’s case was not available to the applicant. In brief, I said I was satisfied that the respondent’s evidence had established such a prima facie case against the applicant as would warrant the applicant taking the witness’ stand. In this application, the applicant says by that ruling I erred in a number of respects, hence the application for leave to appeal. [3] The respondent opposes the application. Firstly, it raises two preliminary points to show that the application is fatally defective for want of compliance with the Rules of this court and should therefore not be entertained on the merits. The one defect raised is that the format used by the applicant to launch its application for leave to appeal is not one prescribed by the Rules, more particularly r 263. The respondent says, contrary to the peremptory direction in r 263, the applicant has not, on the face of the application itself,  stated the reasons why the application for leave to appeal was not made in terms of r 262;  listed the proposed grounds of appeal, and  listed the grounds upon which leave to appeal should be granted. [4] For support, the respondent relies on cases such as Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited HH 667-151 and Zimbabwe Open University v Mazombwe & Anor 2009 (1) ZLR 101(H). In both these cases, and several others, chamber applications were dismissed, or struck off the roll, for failure by the applicants to invoke the correct Form to accompany the applications. [5] The respondent’s second preliminary objection is that there was an inordinate delay in serving the application after it had been issued, contrary to another peremptory direction in r 264, as read with r 269. Rule 264 requires that a copy of the application for leave to appeal must be served on the respondent immediately after it has been filed. In this case, the application was filed on 7 August 2020. However, it was not until 12 August 2020 that it was 1 A judgment by myself published in 2015 (2) ZLR 343 (H) Towards e-justice RioZim Ltd v Maranatha Ferrochrome (Pvt) Ltd HH 623-20 HC 4241/20 Ref HC 6774/18 Ref HH 482-20 served on the respondent. The respondent argues that “immediately” means “without delay” or “at once”. It submits that the application should have been served on it on the same day that it was issued. [6] Rule 262 reads: “Subject to the provisions of rule 263, in a criminal trial in which leave to appeal is necessary, application for leave to appeal shall be made orally immediately after sentence has been passed. The applicant’s grounds for the application shall be stated and recorded as part of the record. The judge who presided at the trial shall grant or refuse the application as he thinks fit.” [7] Rule 262 applies to appeals in criminal proceedings. But by virtue of r 269 its provisions, and those of the other rules on the point, also apply to civil proceedings where leave to appeal, as in the present case, is required. Rule 263 then goes on to say: “Where application has not been made in terms of rule 262, an application in writing may in special circumstances be filed with the registrar within twelve days of the date of the sentence. The application shall state the reason why application was not made in terms of rule 262, the proposed grounds of appeal and the grounds upon which it is contended that leave to appeal should be granted.” [8] Therefore, where one intends to appeal a judgment in circumstances in which leave to appeal is required, one must make an oral application for that leave immediately after the judgment has been delivered. In the present case, that did not happen. The applicant explains in the founding affidavit by its legal practitioner why it did not happen. The affidavit says my judgment dismissing absolution from the instance was handed down in motion court. The presiding judge in motion court, in terms of a rule of practice, only read out the operative part of the judgment, not the whole judgment. The legal practitioner had to obtain the whole judgment only after motion court had ended. Even then, he had to study the judgment and obtain further instructions from the applicant on whether or not to appeal. [9] With regards the first preliminary objection, I consider that the respondent has confused the requirements of r 241(1) with those of r 263. The respondent also seems to have misconstrued the ratio decidendi of cases such as Marick Trading and Mazombwe above. These cases interpreted r 241(1). The rule reads: Towards e-justice RioZim Ltd v Maranatha Ferrochrome (Pvt) Ltd HH 623-20 HC 4241/20 Ref HC 6774/18 Ref HH 482-20 “241. Form of chamber applications (1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a chamber application is to be served on an interested party, it shall be in Form No. 29 with appropriate modifications.” [10] This rule prescribes, in mandatory language, the format a chamber application should take. There are four peremptory directives. The first is that the chamber application must be entered in the chamber book. The second is that it must be accompanied by Form 29B duly completed. The third is that it must be supported by an affidavit, or affidavits, of facts. The fourth is that if the chamber application is one to be served on interested parties, then it must be accompanied by Form 29 (as opposed to 29B), with appropriate modifications. [11] The one mistake the respondent is making in its first preliminary objection is the failure to appreciate that r 241(1) is the general rule governing chamber applications in general. But r 263 is the specific rule for a specific instance, namely leave to appeal. Rule 263, and the several others on the point, constitute a self-contained code on what a chamber application for leave to appeal should contain and how it should be dealt with. While r 241(1) directs, among other things, that a chamber application shall be accompanied by Form 29B, there is no similar direction in r 263. It is Form 29B, not r 241(1), that r