Zakeyo Mereki v Bell Inn (Private) Limited and Others

On 30 November 2005, Bell Inn (Pvt) Limited was granted a spoliation order by Gowora J directing Mereki to vacate Arden Estate. On the same day, Mereki filed an application to suspend service of Bell Inn's application. On 7 December 2005, the court granted Mereki an order declaring him the rightful occupier of subdivision 1 of Arden Estate based on an offer letter dated 10 November 2005 from the acquiring authority, and directing him to remain in occupation until final determination. Two days later, on 9 December 2005, Bell Inn noted an appeal against the 7 December 2005 judgment. Mereki then brought an urgent chamber application seeking confirmation of the provisional order granted on 7 December 2005, contending that Bell Inn's appeal was a nullity because an interdict granted is not appealable.

• Whether an appeal lies from the granting of an interdict without leave of a judge
• Whether the noting of the appeal suspended the order granted on 7 December 2005
• Whether an application that fails to comply with Rule 227(3) by not including a draft order should be dismissed
• Whether an applicant can file a draft order after the hearing seeking different relief from what was argued

The application was dismissed with costs.

1. An appeal from an interlocutory order granting or refusing an interdict lies without the need for leave of a judge in terms of section 43(2)(d)(ii) of the High Court Act [Chapter 7:06]. 2. A properly and validly noted appeal suspends the operation of the order appealed against. 3. Rule 227(3) which requires every written application to contain a draft of the order sought is peremptory, and failure to comply without seeking condonation renders the application defective and subject to dismissal. 4. An applicant cannot file a draft order after the hearing seeking relief different from what was argued in chambers without proper application to amend.

The court noted that there was no need for the respondent to refer to foreign (South African) authorities when Zimbabwe's own statutes provided a clear answer to the question of appealability of interdicts. The court observed that it was the respondent's counsel, not the appellant, who had misread the law on this point.

This case confirms the application of section 43(2)(d)(ii) of the High Court Act in Zimbabwe, clarifying that appeals from the granting or refusal of interdicts do not require leave of a judge, and that such appeals properly noted suspend the operation of the order appealed against. The case also reinforces the importance of strict compliance with procedural rules, particularly Rule 227(3) requiring applications to contain a draft order, and demonstrates that courts will not entertain relief that differs from what was argued at the hearing and filed after the fact.