Sibangani Mzizi v Effie Dewa and Others

The applicant and the second respondent (husband and wife) entered into a swap agreement with the first respondent on 24 August 2007, agreeing to exchange a restaurant for the first respondent's property, Stand 4458 Bulawayo Township (house number 12 Cromartu Road Queens Park East Bulawayo). The first respondent surrendered her ownership documents, but the applicant and second respondent failed to deliver the restaurant documents and allegedly had no rights in the restaurant. On 28 August 2007, they allegedly forged the first respondent's signature on a Power of Attorney and transferred the property without her knowledge. In May 2013, they sold the house to the third respondent. The first respondent discovered the fraud, reported it to police, and issued a summons on 29 May 2017 seeking to declare the transfer illegal and reverse all subsequent transfers. The applicant filed an exception and special plea (based on prescription), both of which were dismissed by the High Court on 19 August 2021. The applicant sought to appeal this decision one day out of time, bringing an application for condonation and extension of time to appeal without first seeking leave to appeal from the High Court.

• Whether leave to appeal is required before appealing against the dismissal of a special plea of prescription
• Whether the High Court's judgment dismissing the special plea is interlocutory or final in nature
• Whether condonation and extension of time to appeal can be granted in the absence of leave to appeal where such leave is required
• What constitutes an interlocutory order or judgment under s 43(2)(d) of the High Court Act

The application for condonation and extension of time to appeal was struck off the roll. The applicant was ordered to bear the costs on the ordinary scale (the first respondent's request for costs on a legal practitioner and client scale was refused).

The dismissal of a special plea of prescription is an interlocutory order, not a final order, where the case continues to trial and the party may re-argue the same points at trial, particularly where no evidence was taken on the substance of the plea. An order is interlocutory if it does not have the effect of finally determining the issue or cause of action between the parties. The test is whether 'the final word' has been spoken on the point in issue, or whether the order is reparable at the final hearing. Under s 43(2)(d) of the High Court Act, no appeal lies from an interlocutory order or judgment without first obtaining leave from the judge who made the decision or, if refused, from a judge of the Supreme Court. An application for condonation and extension of time to appeal against an interlocutory order is improperly brought without first seeking and obtaining the requisite leave to appeal.

The court observed that it is undesirable and clumsy for parties to skip up and down between two different courts in the middle of proceedings in the lower court, as such a state of affairs breeds uncertainty in the administration of justice and tends to bring the administration of justice into disrepute. The court noted that it is always slow to interfere with unterminated proceedings of a lower court except in rare instances of glaring injustice. The court also observed that no case had been made for costs on a legal practitioner and client scale, indicating that ordinary costs would follow the result.

This case is significant in Zimbabwean civil procedure for clarifying the distinction between interlocutory and final orders, particularly in relation to special pleas. It establishes that the dismissal of a special plea of prescription is interlocutory in nature where no evidence has been led on the substance of the plea and the matter continues to trial. The judgment reinforces the principle that appeals from interlocutory orders require leave of the court under s 43(2)(d) of the High Court Act. It also demonstrates the court's reluctance to interfere with unterminated proceedings in lower courts, promoting judicial economy and preventing parties from skipping between courts during ongoing proceedings. The case provides guidance on applying the test for determining whether an order is interlocutory (whether the final word has been spoken on the issue, or whether it is reparable at final hearing) versus final.