Erica Ndewere v Judicial Service Commission

The appellant was a former High Court judge removed from office by the President on 17 June 2021 for gross misconduct in terms of s 187(8) of the Constitution. During her tenure, she was issued with a Mercedes Benz E300 (registration ADY4743) as a condition of service for personal and official use, registered in the name of the Master of High Court. After her removal, the respondent (Judicial Service Commission) demanded return of the vehicle by letter dated 19 April 2022. The appellant refused, claiming entitlement to purchase the vehicle under the Judges' Conditions of Service. The respondent then brought a rei vindicatio application (HC 3117/22) for recovery of the vehicle. While that application was pending, the respondent approached the High Court on an urgent basis seeking interim relief to place the vehicle under judicial attachment, arguing it faced irreparable harm as the vehicle was uninsured under Government policy. The High Court granted the provisional order placing the vehicle under judicial attachment and interdicting both parties from using it pending the return day. The appellant appealed this decision without seeking leave to appeal.

• Whether leave to appeal was required before noting an appeal against an interim interdict
• Whether the interim order granted by the court a quo was final in effect or interlocutory in nature
• The distinction between final orders and interlocutory orders for purposes of the right to appeal
• The proper interpretation and application of s 43(2)(d) of the High Court Act regarding appeals from interlocutory orders

The matter was struck off the roll with each party bearing its own costs.

An interim interdict granted to preserve the status quo pending final determination of the parties' rights is interlocutory in nature and requires leave to appeal under s 43(2)(d) of the High Court Act [Chapter 7:06]. The test for determining whether an order is final or interlocutory requires examination of the terms of the order made: for an order to have the effect of interim relief it must be granted in aid of, and as ancillary to, the main relief which may be available on final determination of the rights in the proceeding. An order that merely preserves property pending final determination, without awarding it to either party or finally determining their rights, is interlocutory. The fact that an order is labeled as 'interim' or 'provisional' is not determinative - the court must look at the substance and effect of the order.

The Court clarified that Chiwenga v Mubaiwa SC 68/20 is distinguishable as it involved a final spoliation order (mandamus van spolie), which by operation of law is always final and cannot be granted on an interim basis. The Court noted it is an established principle that an order for mandamus van spolie is final and cannot be granted on an interim basis (citing Blue Rangers Estates, Gateway Primary School v Marinda Fenesy, and Bhadella v Bhadella). The Court also observed that the purpose of an interim interdict is for 'the preservation or the restoring of the status quo pending the final determination of the rights of the parties. It does not affect or involve the final determination of such rights' (quoting Herbstein & van Winsen). The Court noted that while the refusal of an interim interdict is appealable as of right (because it irreparably anticipates or precludes relief that might be granted at ultimate hearing), the grant of an interim interdict requires leave to appeal.

This case clarifies the important distinction in Zimbabwean civil procedure between final orders and interlocutory orders for purposes of the right to appeal. It establishes that interim interdicts granted to preserve the status quo pending final determination of rights are interlocutory in nature and require leave to appeal under s 43(2)(d) of the High Court Act. The judgment provides important guidance on how to determine whether an order is final or interlocutory by examining the terms and effect of the order itself, rather than its form or label. The case also clarifies the scope of the Chiwenga v Mubaiwa precedent, confirming it applies only to orders that are truly final in effect (such as spoliation orders which cannot be granted on an interim basis), not to genuine interim orders. This decision reinforces proper appellate procedure and the gate-keeping function of leave to appeal requirements for interlocutory matters.