Movement for Democratic Change-Alliance and Others v Tendai Muchekahanzu and Others; Washington Gaga and Others v Commissioner General of Police N.O. and Others

The appellants were in peaceful and undisturbed possession of property known as Stand 856 Salisbury Township (No. 44 Nelson Mandela Avenue Harare), also known as Harvest House or Morgan Richard Tsvangirai House, a six-floor building occupied by officials and employees of the first appellant, a political party (MDC-Alliance). On the night of 4 June 2020, the appellants were dispossessed of these premises by the respondents who allegedly used the coercive force of military men and police officers to forcibly eject the appellants. The appellants brought two urgent chamber applications (HC 2811/20 and HC 2813/20) in the High Court seeking spoliation orders to restore possession. The High Court dismissed both applications with costs on 26 June 2020, and the appellants appealed to the Supreme Court.

• Whether the notice of appeal complied with the mandatory requirements of Rule 37(1)(e) of the Supreme Court Rules, 2018, specifically whether it stated the exact relief sought
• Whether the appellants had established the requirements for a spoliation order
• Whether the appellants had locus standi to sue for spoliation
• Whether costs on a higher scale (legal practitioner and client scale) should be awarded

The appeal was struck off the roll with costs on the ordinary (party and party) scale.

A notice of appeal must comply with the mandatory requirement of Rule 37(1)(e) of the Supreme Court Rules, 2018, by stating the exact relief sought. The "exact relief sought" means the operative part of the order that could have been granted in the court a quo, not merely a general statement that "the application be granted." Failure to specify the exact relief renders the notice of appeal fatally defective and warrants striking the appeal off the roll.

The court provided guidance on when costs on a higher scale may be awarded, citing Herbstein and Van Winsen and Mudzimu v Chinhoyi Municipality. The court noted that such costs will not be granted lightly and require proof of dishonesty, fraud, vexatious, reckless and malicious or frivolous motives, grave misconduct, or other special circumstances. The court's discretion is not restricted to cases of dishonest, improper or fraudulent conduct but includes all cases in which special circumstances justify such an order. The court did not express any view on the merits of the spoliation applications, including the nine grounds of appeal raised relating to whether the requirements for spoliation were met, the relevance of legalities of occupation, the identity of the political parties, locus standi, or the involvement of police and military forces.

This case reinforces the strict compliance required with the Supreme Court Rules regarding notices of appeal. It emphasizes that Rule 37(1)(e) requires the exact relief sought to be specified in the notice of appeal, meaning the actual operative part of the order sought, not merely a general statement that the application be granted. The case also confirms the principles governing when costs on a higher scale may be awarded, requiring proof of dishonesty, fraud, vexatious conduct, or other special circumstances as set out in Mudzimu v Chinhoyi Municipality 1986 (3) SA 140 (ZH) and Herbstein and Van Winsen. The case demonstrates that procedural defects in appeals can be fatal regardless of the potential merits of the underlying case.