Sikona Farm (Private) Limited and Girdlestone Engineering (Private) Limited v Carey Farm Private Limited and Newton Madzika

The applicants sought leave to appeal against an order granted by Chigumba J on 24 January 2014. The first respondent (Carey Farm) had filed an application for rescission of default judgment under HC 10178/13 through Messrs Manase & Manase. The applicants opposed this application on 12 December 2013, arguing that Messrs Manase & Manase were not the first respondent's legal practitioners of record, as Messrs Mambosasa Legal Practitioners had previously filed a notice of entry of appearance to defend on 11 September 2012. On 20 December 2013, the first respondent filed a chamber application under Order 32 to strike out the notice of opposition. The applicants opposed this, raising points including that Messrs Mambosasa had not renounced agency and Messrs Manase & Manase had not assumed agency as required by Order 2 rule 5. On 24 January 2014, the court granted the order striking out the notice of opposition. The applicants were served with this order on 29 January 2014 and filed an application for leave to appeal on 6 February 2014. The first respondent opposed the application, stating it had never instructed Messrs Mambosasa and attaching a notice of withdrawal dated 28 November 2013 in which Messrs Mambosasa acknowledged they had erroneously assumed agency on behalf of the first respondent.

• Whether leave to appeal should be granted against an interlocutory order
• Whether the application for striking out should have been brought under Order 21 rule 138 (action procedure) or Order 32 (application procedure)
• Whether the failure of Messrs Mambosasa to renounce agency and Messrs Manase & Manase to assume agency in terms of Order 2 rule 5 was a ground for appeal
• Whether the application for leave to appeal disclosed special circumstances as required by Order 34 rule 263
• Whether the proposed appeal had reasonable prospects of success

The application for leave to appeal was dismissed.

Order 21 rules 137 and 138 of the High Court Rules relate to action procedure and provide alternatives to pleading to merits, specifically for striking out paragraphs of pleadings in summons proceedings. Applications to strike out notices of opposition in application proceedings must be brought under Order 32, which governs application procedure. An application for leave to appeal against an interlocutory order under section 43(2)(d) of the High Court Act and Order 34 rule 263 must establish special circumstances, failing which it is defective. Where a legal practitioner erroneously assumed agency without instructions and subsequently withdrew, and the alleged client confirms it never provided instructions, this raises a question of fact, not law, and cannot constitute a viable ground of appeal. Interlocutory and procedural orders that are not definitive of parties' rights should not be permitted to proceed on appeal where the appeal will not advance resolution of the main dispute.

The court observed that the effect of failing to assume or renounce agency when required by the rules brings into question the right to be heard on behalf of an alleged client. Where a legal practitioner with no right to be heard has been heard deliberately and intentionally in contravention of Order 2 rule 5, the remedy is to report the legal practitioner to the Law Society for violations of the Legal Practitioners Act and rules of ethics, or to institute disciplinary proceedings. A legal practitioner's lack of right of audience, after audience has already been given, cannot be used as a sword in an appeal as a ground for overturning judgment, unless the complaint emanates from the client which was wrongly represented. The court cited the rationale from Pretoria Garrison Institutes v Danish Variety Products regarding the restriction of appeals from interlocutory orders, noting that unrestricted rights of appeal might give wealthier litigants power to wear out opponents and put a premium on delaying tactics, while balancing this against the need to prevent injustice from wrong orders.

This case clarifies the distinction between Order 21 (action procedure) and Order 32 (application procedure) in Zimbabwean civil procedure, particularly regarding applications to strike out pleadings versus notices of opposition. It reinforces the requirements for applications for leave to appeal against interlocutory orders under section 43(2)(d) of the High Court Act and Order 34 rule 263, emphasizing that applicants must establish special circumstances. The judgment also addresses the consequences of legal practitioners erroneously assuming agency and clarifies that where a legal practitioner had no right to represent a client, the remedy lies in reporting to the Law Society rather than using it as a ground for appeal, unless the complaint emanates from the wrongly represented client. The case demonstrates judicial reluctance to permit appeals on interlocutory procedural matters that do not advance resolution of the substantive dispute.