HARRISON & HUGHSON (PVT) LTD v ALSTOM ZIMBABWE (PVT) LTD & ANOR 2010 (2) ZLR 114 (H)

Flynote

Appeal - right of- interlocutory order - magistrates court - order granting leave to execute pending appeal on main issue - not subject to appeal

Headnote

The respondent obtained an eviction from the magistrates court against δ the applicant. The applicant noted an appeal against the order, but the respondent applied for and was granted an application for leave to execute the eviction order pending the determination of the appeal. The applicant noted an appeal against the order granted to the first respondent to execute pending appeal and thereafter filed a chamber application for a provisional order staying the ejectment, alternatively, restoring it to ε possession of the premises.

Held, that the granting of the relief to stay execution would amount to overruling the magistrate's decision and also to determining the appeal when the court was not sitting as an appellate court.

Held, further, that appeals from the magistrates court are by choice of the appellant, but limited to judgments, rules, orders or decisions covered ε by paras (a), (b) and (c) of s 40(2) of the Magistrates Court Act [Chapter 7:10]. The common thread running through those provisions is that the judgment, rule, order or decision being appealed against must have the effect of a final and definitive judgment. It follows, therefore, that those orders or judgments which are of a purely interlocutory nature are not appealable. An order granting leave to execute pending appeal, such as that granted in the instant case, is purely interlocutory and thus does not have the effect of a final judgment on the main suit, despite the inconvenience to the applicant. It is, to all intents and purposes, not subject to appeal