The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare

The applicant had noted an appeal to the Supreme Court (SC 180/09) against judgment HH 166/09 arising from consolidated cases HC 4327/08 and HC 2792/09. The respondent filed an application in the Supreme Court under Rule 36(1) for dismissal of the appeal on the ground that the applicant had failed to furnish good and sufficient security for costs within one month of filing the notice of appeal as required by Rule 46(5). On 3 May 2010, the Supreme Court dismissed the appeal with costs in judgment SC 9/10. On 7 May 2010, the applicant filed an application in the Supreme Court seeking condonation for non-compliance with Rule 46(5) and reinstatement of the appeal. On 10 May 2010, the applicant filed an urgent chamber application in the High Court seeking suspension of the operation of the orders in HC 4327/08 and HC 2792/09 pending determination of the Supreme Court application for reinstatement. The judge initially endorsed the matter as not urgent on 10 May 2010, but the applicant's legal practitioners sought an opportunity to argue urgency.

• Whether the court was functus officio after endorsing that the matter was not urgent without hearing oral arguments
• Whether the deponent to the founding affidavit had locus standi to depose to the affidavit
• Whether the matter was res judicata in light of the Supreme Court judgment SC 9/10
• Whether the applicant could seek an interdict based on a contingent right dependent on the uncertain outcome of the condonation application
• Whether the matter was urgent given the delay since July 2009 in addressing the security for costs issue

The court granted the amended provisional order on 31 May 2010, allowing the applicant access to assets and facilities to which it had access immediately prior to the Supreme Court judgment SC 9/10, pending determination of the Supreme Court application for condonation and reinstatement of appeal. All preliminary points raised by the respondent were dismissed.

A court is not functus officio in relation to a determination on urgency where that determination was made on a prima facie basis after considering papers only, without hearing oral arguments from the parties. The court only becomes functus officio on such an issue after the parties have been heard orally and a determination made thereafter following full ventilation of the pertinent issue. Where an application before a lower court raises issues that may impact on or require findings that could affect matters pending before a higher court, the lower court should defer to the higher court and not pre-empt its determination, particularly where the relief sought is interim only pending the higher court's determination.

The court noted it was striking that the respondent raised the issue of locus standi at this late stage when the same parties had been litigating for quite some time under the very same citations. The court also observed that regarding the res judicata issue, if any such issue were to be raised, it could only properly be raised in relation to the matter before the court, and matters relating to the Supreme Court application would be better dealt with by the Supreme Court itself when it determines that application. The court cannot make pronouncements on applications pending before a different court.

This case establishes important principles regarding when a court becomes functus officio in relation to preliminary determinations on urgency, and the proper approach when a lower court is faced with issues that may impact on matters pending before a higher court. It demonstrates judicial restraint and respect for court hierarchy, with the High Court deferring to the Supreme Court on matters properly before it. The case also illustrates the court's discretion in granting interim relief pending determination of appellate proceedings, particularly where irreparable harm may result from enforcement of orders while an application for condonation and reinstatement is pending.