Trust Merchant Bank Limited v Mako Properties Construction (Private) Limited t/a Msuna Safaris and Travel

On 29 March 2000, Mako Properties Construction (Private) Limited made an application to the High Court (case HC-1487-00) for an order to consolidate two applications it had made separately against Trust Merchant Bank Limited (case HC-3327-99) and Zimbabwe Development Corporation (ZDC), to be heard together as one application. Trust Merchant Bank and ZDC opposed the application. On 8 September 2000, the High Court granted the order of consolidation. On 15 September 2000, Trust Merchant Bank noted an appeal against the consolidation order. The respondent's legal practitioners drew attention to the fact that the order was interlocutory and that no appeal could lie without leave of the judge who made it. Trust Merchant Bank had not sought leave to appeal from the learned judge.

• Whether an order of consolidation is an interlocutory order within the meaning of section 43(2)(d) of the High Court Act [Chapter 7:06]
• Whether an appeal lies as of right against an interlocutory order without leave of the judge who made the order
• What is the proper test to determine whether an order is interlocutory or final

The case was struck off the roll and the respondent was awarded costs.

An order for consolidation of applications is an interlocutory order within the meaning of section 43(2)(d) of the High Court Act [Chapter 7:06]. No appeal lies as of right against an interlocutory order without leave of the judge who made the order or, if refused, leave of a judge of the Supreme Court. The test for determining whether an order is interlocutory is whether the final word has been spoken on the particular point in the suit, or whether it disposes of a definite portion of the suit. An order that allows the suit to continue with main issues to be determined at a later stage is interlocutory in nature.

The court referenced several authorities establishing the test for interlocutory orders, including South African cases (Globe And Phoenix Gold Mining Co Ltd v Rhodesian Corporation Ltd 1932 AD 146; Pretoria Garrison Institutes v Danish Variety Products (Pvt) Ltd 1948 (1) SA 839; South Cape Corp v Engineering Management Services 1977 (3) SA 534) and English cases (Salter Rex & Co v Ghosh [1971] 2 All ER 865; Technistudy Ltd v Kerrand [1976] 3 All ER 632), noting that there is "a fairly settled rule for testing the appealability" of such orders. The court also noted that it is "not desirable to attempt an exhaustive definition" of what constitutes an interlocutory order, as stated in Steytler N.O. v Fitzgerald.

This case reaffirms the established principles for determining whether an order is interlocutory or final in Zimbabwean law, and reinforces the procedural requirement under section 43(2)(d) of the High Court Act that leave to appeal must be obtained before appealing an interlocutory order. It provides guidance on the appealability of consolidation orders and emphasizes strict compliance with statutory appeal procedures.