Rita Marque Mbatha v Confederation of Zimbabwe Industries and The Sheriff of Zimbabwe

Rita Marque Mbatha obtained a Supreme Court judgment ordering the Confederation of Zimbabwe Industries (CZI) to pay her USD 41,161.30 plus interest. On 13 January 2020, she caused a writ of execution to be issued and the Sheriff attached CZI's property. CZI deposited RTGS$43,495.37 to her account in purported settlement. Mbatha rejected this payment, insisting on US dollars, and directed the Sheriff to continue execution. CZI then filed an urgent application (HC 377/2020) before Dube-Banda J, seeking suspension of the writ. The court granted interim relief suspending execution, finding that the debt pre-dated February 2019 and was subject to Finance Act No. 2 of 2019, which mandated a 1:1 conversion rate between US dollars and RTGS dollars. Mbatha then filed this urgent application seeking leave to appeal against that interlocutory order.

• Whether leave to appeal should be granted against an interlocutory order
• Whether the court erred in finding CZI had established a prima facie case for interim relief
• Whether the High Court had jurisdiction to regulate execution of a writ emanating from a Supreme Court judgment
• Whether refusal of leave to appeal violates the constitutional right of access to courts under section 69(3) of the Constitution
• The proper interpretation and application of section 4(1)(d) of SI 33/19 and section 22(1)(d) of the Finance Act 2019 regarding currency conversion for pre-existing debts
• The proper test for granting leave to appeal against interlocutory orders under section 43(2)(d) of the High Court Act

The application for leave to appeal was dismissed with costs on an attorney-client scale.

An interlocutory order that is subject to confirmation or discharge and does not have a final and definitive effect on the main action is a simple interlocutory order requiring leave to appeal under section 43(2)(d) of the High Court Act. Leave to appeal will only be granted where there is a reasonable prospect of success, the amount is not trifling, the matter is of substantial importance to the parties, and a practical result can be achieved. Leave should not easily be granted where the order is interim and final relief is still pending confirmation. The High Court has inherent jurisdiction to regulate its own processes, including writs of execution issued from it. The refusal of leave to appeal does not violate the constitutional right of access to courts under section 69(3) where the applicant can petition a Supreme Court judge for leave. Pre-February 2019 judgment debts are subject to the 1:1 currency conversion rate under section 4(1)(d) of SI 33/19 and section 22(1)(d) of Finance Act No. 2 of 2019.

The court observed that leave to appeal should not easily be granted where the order sought to be appealed is interim and the final relief is still pending confirmation or discharge on the return date. The court noted that while applicants are self-represented litigants who may be afforded some leniency, there is a limit to such protection, and punitive costs may still be warranted where litigation is vexatious and unmeritorious. The court emphasized that the purpose of interim relief is to interdict prima facie illegal activities, and applications must be competently drafted to achieve this purpose. The court stated that costs on an attorney-client scale are not merely for punishment but arise from circumstances giving rise to the case or the conduct of the losing party, and such costs should be awarded to discourage similar vexatious conduct in future and protect respondents from being out of pocket.

This case clarifies several important principles in Zimbabwean law: (1) it confirms the distinction between simple interlocutory orders and final orders disguised as interlocutory orders, and the appealability of each; (2) it affirms the test for granting leave to appeal against interlocutory orders under section 43(2)(d) of the High Court Act; (3) it demonstrates the application of the Finance Act No. 2 of 2019 currency conversion provisions to pre-February 2019 judgment debts, following the Zambezi Gas precedent; (4) it clarifies that the constitutional right of access to courts is not violated by requiring leave to appeal interlocutory orders, given the availability of petitioning the Supreme Court; (5) it illustrates when costs on a punitive/attorney-client scale are appropriate for vexatious and unmeritorious litigation, even for self-represented litigants; and (6) it confirms the High Court's inherent jurisdiction to regulate its own processes, including writs of execution.