TOTAL MARKETING ZIMBABWE (PVT) LTD v POLLYLAMP INVESTMENTS (PVT) LTD 2007 (2) ZLR 60 (S)

Flynote

Appeal ” against interlocutory ruling ” need for leave of judge to note appeal against such ruling ” merits of matter not dealt with ” not proper for Supreme Court to deal with case on merits

Headnote

The applicant approached the High Court with an urgent chamber application seeking a provisional order. When the urgent chamber application was placed before the judge, he declined to deal with it and ruled that it was not urgent. The applicant then approached the Supreme Court, asking it to grant the order sought in the High Court.

Held, that the judge a quo, having determined that the matter was not urgent, did not deal with the merits. This meant that the matter was still pending before the High Court. The decision by the High Court judge was an interlocutory and the applicant needed leave from the judge to note the appeal. Without such leave the matter was not properly before the Supreme Court. The Supreme Court cannot be used to take over and hear applications from the High Court just because a litigant thinks that his application is urgent. This can only be done where the High Court has given reasons for declining to deal with a matter, in which case it must be shown that the court erred in arriving at such a decision. The merits in the application before the High Court were not considered, so it would be wrong for a judge of the Supreme Court to take it upon himself to consider them as if it were a court of first instance.