RITENOTE PRINTERS (PVT) LTD V ADAM AND CO & ANOR 2010 (2) ZLR 544 (H)

RITENOTE PRINTERS (PVT) LTD V ADAM AND CO & ANOR 2010 (2) ZLR 544 (H)

Flynote

Appeal - noting of - effect - appeal against order of statutory tribunals or courts other than courts of inherent jurisdiction - whether noting of appeal suspends operation of order against which appeal is made - need b for clarification of the law

Practice and procedure - order - grant of - another order relating to same matter still extant - court cannot give order in conflict with extant order

Headnote

In two separate actions in the magistrates court, the respondent obtained eviction orders against the applicant from two premises it leased from the respondent. The applicant appealed against the magistrate's judgments in both matters. It also filed ex parte applications for an order staying execution of the judgment in both matters. The applications were dismissed by the magistrate. In the meantime, pending judgment on those applications, the applicant filed applications in the High Court under certificates of urgency for orders staying execution of the judgments. The respondents opposed the granting of the applications. The respondent proceeded to execute against the judgment despite the noting of the appeal. The order from the magistrate dismissing the application for a stay of execution came after the process has started. The applicant sought an order restoring its occupation and the return of property taken. It argued that the noting of the appeal to the High Court against the judgment of the magistrates court mean that the respondent had to obtain leave to execute pending appeal.

Held, that a court cannot be seen to be giving an order differing from an order which is still extant. This would result in two orders from two different courts which would be in conflict with each other and would cause confusion as to which order would be binding upon the parties. To do so would constitute a clear departure from rules of procedure and an open invitation to litigants to treat orders of court with contempt.

Held, further, that the common law position is that superior courts have an inherent jurisdiction to regulate their own procedures and process. A rule of practice therefore evolved whereby the operation of the judgment of a superior court is suspended upon the noting of an appeal against that judgment. There is some divergence of the authorities in our jurisdiction as to whether this rule applies to appeals against judgments that do not emanate from courts of superior or inherent jurisdiction Some authorities take the view that the concept of a rule of practice is appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal or authority is a creature of statute and bound by the four corners of its enabling legislation. Section 40(3) of the Magistrates Court Act [Chapter 7:10] provides for the court to direct either that the judgment be executed pending appeal or that execution be suspended pending the determination of an appeal. This provision indicates the absence of an inherent discretion within the magistrates court for the automatic suspension of the operation of a judgment or order upon the noting of an appeal and is specifically intended to provide the court with the power to suspend the operation of a judgment upon the noting of an appeal. Other authorities have held that, in the absence of a clear indication by the law given to the contrary, the common law position - that the execution of all judgments is suspended upon the noting of an appeal - is not ousted by the silence of the legislation in terms of which an appeal is lodged. The reason for the common law rule is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by levy under a writ, or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from. The latter view is preferable, but the law needs to be clarified.

Held, further, that the damage that was meant to have been prevented in casu happened, not because the applicant did not seek to protect its interest, but because, due to uncertainty in the law, the respondent, as judgment creditor, proceeded to execute against the judgment despite the noting of the appeal. However, it was not clear how the court could rule in favour of the applicant. The applicant had the right either to appeal against the ruling of the magistrate or to seek a review. It chose to do neither and instead sought an order to stay execution. The High Court could not give an order that was different from the magistrate's order, as long as that order was extant.

Quaere: whether the Supreme Court, at the earliest opportunity, should revisit its decision in Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) and clarify the law relating to the suspension of judgments from statutory tribunals or courts of inferior jurisdiction upon the noting of appeals therefrom.