Technoimpex JSC v Rajendrakumar Jog and Others

Technoimpex JSC (appellant), a Bulgarian company, owned immovable property in Harare known as Bath Mansions Flats. The appellant obtained a provisional interdict in HC 6784/19 against the first to third respondents to prevent them from dealing with the property. The parties agreed before Musithu J that the fate of the provisional order would depend on the court's decision on the merits in a rescission application (HC 6771/19). In HC 6771/19, Tagu J struck the rescission application off the roll, finding it was a nullity because the deponent to the founding affidavit lacked authority (no board resolution was provided). As a consequence, para 2 of the order discharged the provisional order granted in HC 6784/19 "by consent of the parties". The appellant appealed against the entire judgment. Respondents raised preliminary objections that: (1) the appeal was against a consent order, and (2) the appeal was against an interlocutory order without leave of court.

• Whether the appellant could appeal against para 2 of the court a quo's order which purported to discharge the provisional order by consent
• Whether the appellant could appeal against para 1 of the court a quo's order (striking the application off the roll) without leave of court, given it was an interlocutory order
• The proper interpretation of the parties' agreement regarding the circumstances under which the provisional order would be discharged or confirmed

1. The notice of appeal against para 1 of the court a quo's order is a nullity. 2. The matter is hereby struck off the roll (in respect of para 1). 3. The notice of appeal against para 2 of the court a quo's order is valid. 4. The appeal against para 2 of the court a quo's order should proceed to a hearing on the merits. 5. The Registrar is instructed to set it down before the same bench for hearing at the earliest convenient date. 6. Each party shall bear its own costs.

1. A party cannot be deemed to have consented to a court order based on circumstances that were not within the contemplation of the parties when the agreement was made. Consent must be informed and relate to the specific factual matrix before the court. 2. An order striking an application off the roll for lack of authority (due to absence of a board resolution) is an interlocutory order, not a final order. 3. Section 43(2)(d) of the High Court Act prohibits appeals against interlocutory orders without leave of court, subject to three specific exceptions (liberty of subject/custody of minors; grant or refusal of interdict; special case on arbitration). An order striking a matter off the roll does not fall within these exceptions. 4. A notice of appeal that does not comply with section 43(1) and (2)(d) of the High Court Act is fatally defective and constitutes a nullity. 5. Where there is no proper application before the lower court (due to fatal defects), there is nothing before the appellate court to determine on appeal.

The court noted that striking a matter off the roll does not extinguish the cause of action between parties, as it does not prevent the appellant from filing another application on the same cause of action. This distinguishes a striking off order from a consent order which "extinguishes any cause of action that existed" (citing Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S)). The court also observed that when the court a quo found there was no founding affidavit due to lack of authority, there was "nothing before me to dismiss" and the only appropriate order was to strike the matter off the roll.

This case clarifies important principles in Zimbabwean civil procedure regarding: (1) the nature and scope of consent orders and what constitutes true consent by parties; (2) the requirement for leave to appeal against interlocutory orders under section 43 of the High Court Act; (3) the distinction between decisions on the merits and procedural determinations when interpreting parties' agreements; and (4) the consequences of fatally defective processes. The judgment emphasizes that consent to a court order must be based on facts within the parties' contemplation and cannot extend to unforeseen procedural outcomes. It also reinforces that appeals against interlocutory orders require leave unless they fall within statutory exceptions.