UNIVERSITY OF ZIMBABWE
(1) KWANELE MURIEL JIRIRA (2) LOUIS MASUKO
(3) DEPUTY SHERIFF HARARE
SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & PATEL JA
HARARE, JULY 8 & OCTOBER 3, 2013
R. Goba, for the appellant
D. Ochieng, for the first and second respondents
PATEL JA: At the hearing of this matter, counsel for the respondents raised the preliminary points that the appeal was invalid and that the relief sought by the appellant was incompetent. His argument ran as follows.
Firstly, the court a quo determined the application before it by holding that it was not urgent. Its finding as to the absence of jurisdiction only formed part of its reasoning and was purely obiter. Again, the court did not enquire into the substantive question as to whether or not the stay of execution sought by the appellant should be granted. It did not make any decision on the merits of the matter and, therefore, its decision was purely interlocutory. Consequently, as the appellant did not seek or obtain any leave to appeal, as required by law, the appeal is not competent for want of such leave. Additionally, the notice of appeal is also incompetent because it does not state the date when leave to appeal was granted, as is required by Rule 29(1)b) of the Rules of this Court.
Secondly, the relief sought by the appellant is for the dismissal of the points in limine raised by the respondents in the court below and for the application before that court to be granted in terms of the draft order. This, it is submitted, is incompetent because the substantive merits of the relief sought were not considered or determined by that court.