Nyasha Chikafu v Dodhill (Pvt) Ltd and Others

Dodhill farm was originally owned by Dodhill (Pvt) Ltd (first respondent) and Simon Donald Keevil (second respondent). Following Constitutional Amendment No. 17/05, the farm was acquired by the government and subsequently allocated to Nyasha Chikafu (applicant). While the original owners were still carrying out agricultural activities on the farm, the applicant occupied the farm. This prompted the first and second respondents to apply for a spoliation order. On 16 March 2009, Bere J granted a provisional order restoring the respondents' possession, use and occupation of the farm and directing the applicant to vacate. The applicant then sought leave to appeal against this provisional order. The applicant conceded that she and her counsel had not read the reasons for the court's decision at the time the application for leave to appeal was filed and heard.

• Whether leave to appeal should be granted against an interim/interlocutory order
• Whether the applicant has reasonable prospects of success on appeal
• The proper interpretation of section 43(2)(d) of the High Court Act - which judge should hear an application for leave to appeal from an interlocutory order
• Whether the provisional spoliation order was correctly granted

The application for leave to appeal was dismissed with costs.

Under section 43(2)(d) of the High Court Act [Chapter 7:06], an application for leave to appeal from an interlocutory order or interlocutory judgment must be made to "that judge" who made the order, meaning the specific judge who initially heard the matter, not any other judge of the High Court. To obtain leave to appeal from an interlocutory order, the applicant must demonstrate on a balance of probabilities that there are reasonable prospects of success on appeal. A litigant seeking leave to appeal should first acquaint themselves with the reasons for the judgment, as those reasons invariably form the basis for any appeal.

The court observed that the approach of filing an application for leave to appeal without first reading the reasons for judgment is cause for concern as it has the potential of encouraging frivolous appeals. The court noted there have been conflicting signals from the High Court regarding the interpretation of section 43(2)(d), with some expressing the view that any judge can entertain such applications while others hold that only the judge who heard the main case can do so - the court expressed preference for the latter view. The court also commented that it would be "a sad day" if the court were to make orders which would aid litigants to subvert full compliance with its own orders.

This case is significant for its interpretation of section 43(2)(d) of the High Court Act [Chapter 7:06] regarding which judge should hear applications for leave to appeal from interlocutory orders. The judgment clarifies that "that judge" refers specifically to the judge who initially heard the matter, not any judge of the High Court. The case also emphasizes the importance of litigants familiarizing themselves with the reasons for judgment before filing appeals, and reinforces that applications for leave to appeal must demonstrate reasonable prospects of success rather than merely serve as delaying tactics to avoid compliance with court orders.