Equity Properties (Private) Limited v Al Shams Global BVI Limited and Registrar of Deeds N.O.

The applicant was the respondent in HC 6264/21. When that matter was set down for hearing on 20 June 2022, the applicant raised a preliminary point that the respondent (applicant in the court a quo) had not filed its Heads of Argument within the time period ordered by Tsanga J on 4 February 2022. Tsanga J had directed that the applicant a quo file its Heads on 16 February 2022 and the respondent a quo file its Heads on 2 March 2022, with the hearing scheduled for 28 March 2022 at 10 am. The respondent opposed the preliminary point, claiming it had agreed with the applicant that both parties would file their respective Heads outside the court order. The respondent unsuccessfully applied to uplift the bar. Mangota J found that both parties had flouted the order of Tsanga J and were both barred and improperly before the court. The matter was struck off the roll with each party to meet its own costs. The applicant then filed this application for leave to appeal that decision, arguing it could not file its Heads without the respondent having filed its Heads first and that once the respondent was barred, it had no obligation to file Heads other than to apply for default judgment. The respondent opposed the leave application, arguing it had no reasonable prospects of success and was defective for non-compliance with Rule 94 of the High Court Rules, 2021.

• Whether the application for leave to appeal was defective for alleged non-compliance with Rule 94 of the High Court Rules, 2021
• Whether Rule 94(1) and (2) of the High Court Rules, 2021 are peremptory or discretionary
• Whether an applicant can apply for leave to appeal under common law without following Rule 94
• Whether the applicant had reasonable prospects of success on appeal
• Whether both parties were in contempt of court for failing to comply with the time limits set by Tsanga J's order
• Whether the issue raised regarding compliance with court orders versus compliance with rules of court warranted appellate consideration

The application for leave to appeal was granted as prayed.

1. Rule 94 of the High Court Rules, 2021, which governs applications for leave to appeal, is discretionary rather than peremptory, as evidenced by the use of the word "may" in sub-rules (1) and (2). 2. An applicant has a choice to apply for leave to appeal either orally under Rule 94(1) or by written application under Rule 94(2), but not both. Once a particular route is chosen, compliance with that sub-rule becomes peremptory. 3. Where an applicant does not pursue either sub-rule (1) or (2) of Rule 94, the applicant may still apply for leave to appeal under common law, and such an application is not defective merely for non-compliance with Rule 94. 4. Leave to appeal may be granted where the appeal raises jurisprudential issues that warrant clarification by the superior court for the development of the law and benefit of the court and litigants, even where the applicant's conduct may have been problematic.

The court made several non-binding observations: 1. An application for leave to appeal places the judge in an invidious position of reviewing his own decision, and the judge should endeavor to be as objective as humanly possible and not be tempted to agree with the respondent at the detriment of the applicant. 2. When a court order provides a time limit within which to do something, such time limits ought to be followed, and failure to comply leads to lapsing of the rights conferred therein. 3. It is a plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. Two consequences flow: (a) anyone who disobeys is in contempt and may be punished by committal or attachment or otherwise; and (b) no application to court by such person will be entertained unless he has purged himself of contempt. 4. The court found the conduct of both parties, who were ably legally represented, in failing to comply with the time limits set by Tsanga J to be "wanting in the extreme sense of the word." 5. The applicant's finger-pointing at the respondent was made without serious intention given that it did not make any effort to live within the four corners of the court order itself.

This case is significant in Zimbabwean civil procedure for clarifying that Rule 94 of the High Court Rules, 2021 (governing applications for leave to appeal) is discretionary rather than peremptory, and that an applicant may apply for leave to appeal under common law without following the procedures set out in Rule 94. The case also raises important jurisprudential questions about the relationship between compliance with specific court orders and compliance with rules of court, recognizing that these issues warrant appellate consideration for the development of the law. The judgment reinforces principles of contempt of court regarding non-compliance with court orders setting time limits, while also demonstrating that leave to appeal may be granted where the appeal raises important legal questions even where both parties were arguably in contempt.