Aepromm Resources (Pvt) Ltd v Samuel Mazowe and Others

The applicant company filed an urgent application on 12 August 2010 seeking to declare null and void a Notice of Extraordinary General Meeting issued by the first respondent for a meeting scheduled for 21 August 2010, and to interdict the respondents from acting as directors and interfering with the company's management. On 19 August 2010, Justice Hlatshwayo dismissed the application for lack of urgency. The same day, the applicant noted an appeal to the Supreme Court against this dismissal. On 20 August 2010, the applicant filed a fresh urgent application before Justice Mtshiya seeking the same interdict pending finalization of the appeal in the Supreme Court, to prevent the Extraordinary General Meeting scheduled for 21 August 2010 from proceeding.

• Whether leave to appeal was required from an interlocutory order refusing an interdict
• Whether the High Court had jurisdiction to grant the same relief that had been refused by another High Court judge after an appeal had been noted
• Whether the matter was res judicata
• Whether the general rule that an appeal suspends the operation of the decision appealed against applied where no operational order was ever granted
• Whether the court could grant relief that would effectively reverse an earlier decision of a coordinate High Court judge

Application dismissed with costs. The court refused to grant the interdict sought pending the appeal.

A High Court judge has no power to review or reverse the decision of a coordinate High Court judge. Where a party seeks identical relief that was previously refused by another High Court judge, and an appeal has been noted to the Supreme Court, the matter is res judicata and a coordinate judge lacks jurisdiction to grant that relief. The general rule that an appeal suspends the operation of a decision appealed against does not apply where no operational or executable order was ever granted by the court, but only a procedural ruling refusing to hear a matter on an urgent basis.

The court made observations on the jurisdiction of the Supreme Court, noting that unlike the High Court, the Supreme Court has no inherent jurisdiction as it is a creature of statute whose powers are clearly defined in the Supreme Court Act. The court also suggested that while it may be possible for the Supreme Court to grant an urgent hearing to an appeal already before it, this would be a matter for that court. Additionally, the court noted that the details of the business to be conducted at the Extraordinary General Meeting scheduled for 21 August 2010 were not provided in the application.

This case is significant in Zimbabwean civil procedure for clarifying: (1) that leave to appeal is not required from an interlocutory order granting or refusing an interdict per section 43(2)(d)(ii) of the High Court Act; (2) that a High Court judge cannot review or effectively reverse the decision of a coordinate High Court judge by granting the same relief that was previously refused; (3) the application of res judicata principles where identical relief is sought in successive applications; and (4) that the general suspensive effect of appeals does not apply where no executable operational order was ever made by the court below.