Country Club Twenty-Ten (Private) Limited v The Country Club and Margoe Keenie

On 17 May 2017, the High Court granted an interim interdict in favour of the applicant, Country Club Twenty-Ten (Private) Limited, in Case Number HC 3855/17. The respondents, dissatisfied with the interim order, filed a Notice of Appeal to the Supreme Court on 29 May 2017 (SC 325/17) without first seeking leave from the High Court to appeal against what was an interlocutory order. In their Notice of Appeal, the respondents stated they did not need leave from the High Court and that execution of the judgment was suspended pending appeal. This prompted the applicant to file an urgent chamber application for leave to execute the order pending appeal. The respondents then raised preliminary points and applications for recusal, claiming institutional bias, and sought referral to the Constitutional Court. After the court dismissed these applications, the respondents' legal team walked out of the proceedings, and the matter proceeded unopposed.

• Whether the respondents' Notice of Appeal filed without first obtaining leave from the High Court was valid and effective to suspend execution
• Whether an application for leave to execute pending appeal was competent in circumstances where the Notice of Appeal was potentially a nullity
• Whether the judge who granted the initial interim order should recuse himself from hearing the application for leave to execute pending appeal on grounds of institutional bias
• Whether a constitutional issue arose warranting referral to the Constitutional Court under s 175 of the Constitution
• The appropriate test and factors to consider when granting leave to execute pending appeal

1. The preliminary point was dismissed with costs against the respondents. 2. The application for recusal was dismissed without an order as to costs. 3. The application for referral to the Constitutional Court was dismissed without an order as to costs. 4. Leave to execute pending appeal was granted as follows: (a) The operation of the provisional order granted on 17 May 2017 under HC 3855/17 shall not be suspended by reason of the appeal noted to the Supreme Court under SC 325/17 or any other appeals, and shall have full legal effect; (b) Respondents ordered to comply with all applicable provisions with immediate effect; (c) The 1st and 2nd Respondents and all people acting through them interdicted from interfering with or obstructing Applicant's commercial activities at The Country Club pending determination of the appeal; (d) The 1st and 2nd Respondents interdicted from collecting membership monthly subscriptions payable to the Applicant; (e) Respondents to pay costs on an attorney and client scale.

The binding legal principles established are: (1) A Notice of Appeal against an interlocutory order filed without first obtaining leave from the trial court, while of no force or effect, can only be formally declared null and void by the appellate court, not by the trial court in chambers. (2) The established practice that the judge who heard the original matter should hear the application for leave to execute pending appeal is sound and should be followed unless the judge is unavailable or deceased. (3) No institutional bias arises from a judge hearing an application for leave to execute his or her own judgment pending appeal because the legal test and considerations are entirely different: (a) potentiality of irreparable harm to the applicant if leave is denied; (b) potentiality of irreparable harm to respondents if leave is granted; (c) balance of convenience where both parties may suffer irreparable harm; and (d) prospects of success of the appeal. (4) As long as a Notice of Appeal has not been withdrawn from the appellate court and the Registrar has not been advised of its withdrawal, the applicant and Sheriff cannot enforce the judgment without leave to execute pending appeal, even if the Notice of Appeal is potentially invalid.

Tagu J made several non-binding observations: (1) The respondents contradicted themselves by filing a Notice of Appeal and then arguing it was a nullity, which conduct warranted a costs order. (2) There is a great likelihood that the Notice of Appeal filed without leave may be struck off the roll by the Supreme Court for failure to first seek leave from the High Court. (3) The court noted the "checked history" and "episodes of drama" in the proceedings, including the respondents' eventual walkout from court, suggesting disapproval of such conduct. (4) The court emphasized that once a person is appointed a judge, he or she is able to discharge duties fairly and without bias, referencing the South African case of President of the Republic of South Africa v South African Rugby Football Union. (5) The court characterized the application for referral to the Constitutional Court as "frivolous and vexatious," though this was part of the ratio in dismissing that specific application.

This case is significant in Zimbabwean civil procedure for several reasons: (1) It clarifies that a Notice of Appeal against an interlocutory order filed without first obtaining leave from the High Court is of no force or effect, though only the Supreme Court can formally declare it null and void. (2) It reaffirms the established practice that the judge who granted the initial order is the appropriate judge to hear an application for leave to execute pending appeal, absent special circumstances. (3) It establishes that no institutional bias arises from this practice because the judge applies entirely different legal tests and considerations in the leave to execute application. (4) It demonstrates the high threshold for recusal applications, particularly where no actual bias is alleged. (5) It illustrates the court's willingness to dismiss frivolous constitutional referral applications where no genuine constitutional issue arises. (6) It provides guidance on the proper procedure and factors to be considered in applications for leave to execute pending appeal in Zimbabwe.