Estate Late Dereck Ronald Hill v Rutendo Chasi and Others

The applicant (Estate Late Dereck Ronald Hill) held title to property at 37 Sturton Drive, Richmond, Bulawayo by Deed of Transfer number 268/78 registered on 8 February 1978. The applicant obtained an eviction order against the respondents from the magistrates court. After the respondents withdrew their appeal, they were lawfully evicted by the messenger of court on 20 April 2017 with police assistance due to their hostile attitude. However, the respondents resorted to self-help and unlawfully moved back into the property, threatening the caretaker. The applicant obtained a provisional spoliation order (HC 1206/17) on 18 May 2017 from Takuva J ordering restoration of possession and eviction. The order specifically stated it would remain valid even if the respondents appealed. When the sheriff attempted to execute this order on 30 May 2017, the respondents produced a notice of appeal (SC 312/17) against the provisional order, filed without obtaining leave to appeal. The respondents did not file opposition to the provisional order or attend court hearings, instead sending their elderly mother to seek postponements.

• Whether leave to appeal was required before appealing against the provisional spoliation order
• Whether the provisional order was interlocutory in nature requiring leave under s43(2)(d) of the High Court Act
• Whether the appeal noted without leave was valid
• Whether the respondents' conduct amounted to contempt of court and abuse of court process
• Whether the execution of the provisional order should be allowed pending the purported appeal

The provisional order sought by the applicant was granted in terms of the draft order. The court granted leave to execute judgment under HC 1206/17 pending finalization of appeal SC 312/17, and ordered the respondents to pay costs on a legal practitioner and client scale.

A provisional spoliation order is generally interlocutory in nature as it grants interim relief pending final determination on the return date. Under s43(2)(d) of the High Court Act, no appeal lies from an interlocutory order without first obtaining leave from the judge who made the order (or from a Supreme Court judge if refused), unless the matter falls within the specified exceptions (liberty of subject, custody of minors, interdict, or arbitration). An appeal filed against an interlocutory order without obtaining the required leave is invalid and of no legal effect. Litigants who are in contempt of court and who file appeals under dishonest circumstances with dirty hands cannot benefit from such appeals, even if procedurally valid.

The court observed that while s85(2) of the Constitution allows even a person who has contravened a law to approach court alleging infringement of fundamental rights, this has no application where the party has not actually approached the court making such allegations. The court noted that the respondents' conduct exhibited "a regrettable disregard for the law" and their filing of the appeal was characterized as method meant to frustrate execution - "a thoroughly contemptuous lot which has no respect whatsoever for the process of the court." The court commented that the respondents' harvest from their misadventure would only be "a harvest of thorns."

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the requirement to obtain leave before appealing interlocutory orders under s43(2)(d) of the High Court Act; (2) the classification of provisional orders as generally interlocutory in nature; (3) the courts' intolerance of abuse of process and contempt of court orders; (4) the principle that litigants must come to court with clean hands; and (5) the futility of using invalid appeals to frustrate execution of valid court orders. The judgment demonstrates the court's willingness to prevent manipulation of appellate procedures to delay or avoid compliance with lawful eviction orders.