Charles Dumisani Dube v Maxine Marian S Mugodo N.O and City of Harare and Saltana Enterprises (Pvt) Ltd

The applicant had instituted proceedings under HC 4773/18 seeking a declaratory order that he was the lawful owner or holder of rights in Stand 7863 Warren Park, Harare, and an order compelling the second respondent to transfer rights to him. On 14 February 2019, Kwenda J ordered the matter to be referred to trial, directing that the applicant commence the process by way of summons and that Phillipah Rambanepasi be cited as fourth defendant. The applicant was aggrieved by this interlocutory order and sought leave to appeal. Meanwhile, Mrs Phillipah Rambanepasi, who was in occupation of the property, had instituted separate proceedings (HC5759/18) seeking to be declared owner of the same property. A letter dated 15 August 2011 from the third respondent invited Mrs Rambanepasi to collect a refund pursuant to a court order, but there was no evidence she had accepted it.

• Whether leave to appeal against an interlocutory order should be granted
• Whether the court properly exercised its discretion in ordering the matter to trial rather than determining it on the papers
• Whether the court was entitled to order fresh summons to be issued when referring a matter to trial
• Whether the court properly exercised its power under Rule 87(2)(b) to order joinder of a party (Mrs Rambanepasi) mero motu
• Whether there was a material dispute of fact that could not be resolved on the papers
• Whether the proper judge to hear an application for leave to appeal from an interlocutory order is 'that judge' who made the order under s 43(2)(d) of the High Court Act

1. Application for leave to appeal is refused. 2. There shall be no order as to costs.

When a court finds material disputes of fact that cannot be resolved on application papers and refers parties to trial, it has discretion to direct how proceedings should commence, including ordering that action proceedings be instituted by fresh summons rather than recasting existing application papers as pleadings. A court may exercise its power under Rule 87(2)(b) to order joinder of a party mero motu at any stage of proceedings where such person ought to have been joined or where joinder is necessary to ensure all matters can be effectively and completely determined. Leave to appeal from an interlocutory order will only be granted where the applicant demonstrates reasonable prospects that another court may come to a different conclusion and that the matter is of substantial importance. Under s 43(2)(d) of the High Court Act, leave to appeal from an interlocutory order must be sought from "that judge" who made the order, though another judge may hear the application where circumstances dictate.

The court observed that the appeal appeared to be motivated solely by the desire to obtain an order adverse to Mrs Rambanepasi without her knowledge, which would be inappropriate. The court noted it was difficult to understand why the applicant wished to exclude someone who had made her interest known by both issuing summons and taking occupation of the property. The court also commented that Mrs Rambanepasi would not be seeking to be declared owner seven years after the refund letter if she had actually accepted the refund, making the assertion improbable. The court remarked that the Legislature's use of the determiner "that judge" in s 43(2)(d) (as opposed to "the High Court or the judge" in s 43(2)(c)) indicated an intention that the judge who made the order should be preferred to hear leave applications unless circumstances dictate otherwise.

This case clarifies important principles of Zimbabwean civil procedure regarding: (1) the proper interpretation of s 43(2)(d) of the High Court Act concerning which judge should hear applications for leave to appeal from interlocutory orders (preferably "that judge" who made the order); (2) the court's discretion when referring matters to trial to order fresh summons rather than simply recasting application papers as pleadings; (3) the proper exercise of the court's mero motu power to join parties under Rule 87(2)(b) where necessary to ensure all matters can be effectively determined; and (4) the requirements for granting declaratory orders, including that all interested parties must be before the court. The case reinforces that leave to appeal will only be granted where reasonable prospects of success are demonstrated and the matter is of substantial importance.