On 25 January 2022, the applicant filed an application seeking direct access to this Court in terms of section 167(5)(a) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21(2) of the Constitutional Court Rules 2016 (“the Rules).
If leave is granted, it is his intention to file an application in terms of section 85(1) of the Constitution for the vindication of two of the fundamental rights that he alleges were violated by a High Court decision.
The two fundamental rights in question are the right to access the courts and the right to equal protection and the benefit of the law, respectively.
The allegation made in the application is that the common law remedy that permits execution of a judgment pending appeal violates the Constitution.
FACTUAL BACKGROUND
The respondent is a common law universitas that is governed by its constitution. It is a church with various stations throughout the country. The applicant is a former member of the respondent's executive leadership structure.
The facts surrounding this dispute are mostly common cause.
Over an extended period of time, the respondent's executive, which included the applicant, wrangled over the control of the respondent and its assets. The dispute spilled into the courts, initially the High Court. The High Court found in favour of the other members of the executive and declared them as the duly authorised representatives of the respondent. It also gave them the right to possess and control the assets in dispute.
The applicant was aggrieved. He noted an appeal to the Supreme Court.
On 28 May 2021, the Supreme Court rendered its judgment in which it upheld the judgment of the High Court. The court determined, that, the other members of the executive were the duly authorised representatives of the respondent. The applicant was ordered to pay costs.
At the core of the dispute was the right to occupy Stand 696 New Ardlyn, Westgate, Harare. This property had previously been under the stewardship of the applicant.
Consequent to the Supreme Court's decision, the applicant and his acolytes voluntarily departed from Stand 696 New Ardlyn, Westgate, Harare. However, on 11 October 2021, the applicant returned and unlawfully appropriated the aforesaid premises from the respondent's elected officials.
An application for a mandament van spolie was filed by the respondent, under a certificate of urgency, for the ejection of the applicant from the premises. The application succeeded. The High Court ordered that the applicant be ejected and that the possession thereof be restored to the respondent's executives.
Aggrieved with the decision of the High Court, the applicant appealed to the Supreme Court. In response, the respondent, under HC6465/21, applied for leave to execute the judgment pending the determination of the appeal.
During the hearing of the application for leave to execute the judgment pending appeal, the applicant made an application for a referral to this Court of a constitutional question on the basis of certain constitutional issues that he alleged emanated from the matter.
The crux of his challenge was whether the common law remedy of execution pending appeal was consistent with the Constitution.
The application was opposed by the respondent. It argued that the request was frivolous and vexatious. It contended that there was no violation of any constitutional provisions in the intended application for relief before the High Court.
On 13 January 2022, the High Court rendered its judgment on the application for a referral of the matter to the Constitutional Court.
The court a quo refused the application. It ruled that it lacked merit.
The court a quo reasoned, further, that, there was nothing unconstitutional for a court to order the execution of its own judgment pending appeal as the law permitted this exercise of discretion on the part of the High Court. It thereafter proceeded to determine the merits of the respondent's application for execution pending appeal.
The court a quo noted, that, the applicant had previously vacated the premises in question in compliance with an order of court. However, he had reclaimed control through violent means, and, as a consequence, the noting of the appeal was meant to deny the respondent's representatives access to the property in question whilst he contested the right to control the assets of the respondent.
It is that determination which forms the basis of the present application that is before the Court.
In casu, the applicant seeks to challenge the determination by the High Court. He avers that its decision was wrongful because his request was neither frivolous nor vexatious. It is submitted, on his behalf, that, the prospective substantive application enjoys considerable prospects of success.
The application is opposed.
The respondent submits, that, the present application is frivolous and vexatious. It avers that its effect is meant to frustrate the effect of various judgments that have been granted against the applicant.
The major part of the reasons for opposing the application constitute legal argument, which I will advert to later in the judgment.
APPLICANT'S SUBMISSIONS BEFORE THIS COURT
The applicant advances the argument, that, once an appeal is before the Supreme Court, the court a quo ceases to have jurisdiction over the matter.
He contends, that, this is the essence of section 162 of the Constitution as read with sections 168 and 169 thereof.
It is contended on his behalf, that, the common law rule of execution pending appeal runs contrary to the principle of law that only the Supreme Court has power over its own rules and orders.
In addition, the applicant argues that the established hierarchy of the Courts is disrupted by the common law remedy, which enables the High Court to determine a matter pending before the Supreme Court.
He submits, that, the High Court would, on that premise, be taking sides in the appeal under the guise of determining the prospects of success.
The applicant posits, that, in that process, the right of access to the appellate court is impinged upon by the interference of the High Court.
Despite the right of appeal against any determination by the High Court, the applicant submits that there is no alternative remedy available to him.
Counsel for the applicant submitted, that, the applicant's constitutional rights were violated by the High Court's refusal to refer the constitutional question to the Constitutional Court.
Questioned by the Court as to whether the applicant was challenging the procedural or substantive propriety of the court a quo's decision, he submitted that there was no distinction between the two.
He asserted, that, the established jurisprudence of the Court merely highlighted that once a wrong decision has been made, it can be challenged both procedurally and substantively in a superior court. According to him, the only permissible exception is a Supreme Court decision due to its status as a final decision of the apex court in non-constitutional matters.
Counsel for the applicant submitted, further, that, the court a quo did not apply the established test under section 175(4) of the Constitution to determine whether the application for referral was frivolous or vexatious.
He made reference to the judge a quo's alleged failure to explicitly state whether the application was frivolous or vexatious as evidence of a wrong approach that ultimately led to a wrong decision.
It was contended, that, the constitutional issue of the High Court's jurisdiction to determine applications for leave to execute pending appeals was not addressed and that the matter was neither frivolous nor vexatious.
In response to the Court's question as to whether there was an adherence to the Rules in respect of the application filed before the High Court, counsel for the applicant submitted, that, Rule 24(4) of the Constitutional Court Rules 2016 did not apply as there were no disputes of fact between the parties.
He contended, further, that, the applicant's right to access under section 69(3) of the Constitution was violated by the law which gives the High Court the power to determine applications for leave to execute pending appeals.
Counsel for the applicant added, that, given that the Supreme Court becomes seized with a matter upon the noting of an appeal, it is befitting that this Court decides the issue of which court had jurisdiction over such an application.
In discourse with counsel, the Court noted that the High Court was not disabled by any law from entertaining applications for leave to execute pending an appeal.
The Court further quizzed counsel on the issue of an alternative remedy available to the applicant.
Counsel for the applicant conceded, that, the applicant could have sought leave to appeal against the decision by the High Court.
However, he submitted that the remedy was not practical as the same arguments would be regurgitated in the High Court and Supreme Court on appeal.
Counsel for the applicant countered by proposing, that, in the event the High Court's present authority was held as being unconstitutional, the Court was at large to utilise its just and equitable powers, under section 175(6) of the Constitution, to ensure that the legislature is given adequate time to address the lacuna that would arise as a result of its determination in the applicant's favour.
Counsel for the applicant argued, that, the respondent had not addressed the Court on whether or not there was an infringement of the right of access to a court under section 69(3) of the Constitution.
He submitted, that, the question was important as it brings into focus the issue as to whether the court a quo's determination rendered the appeal in the Supreme Court academic.
Counsel for the applicant reiterated that the applicant was challenging the authority of the lower court to deal with a matter that was pending before the Supreme Court.
He reasoned, that, alternatively placing the application before a different Judge in the High Court would suggest a concession that the alternative remedy was readily accessible.
RESPONDENT'S SUBMISSIONS
Per contra, counsel for the respondent submitted, that, there was a pending matter in the Supreme Court on the substance of the dispute between the parties.
However, he abandoned this line of argument after the Court pointed out that the question of the jurisdiction of the High Court was not pending before the Supreme Court.
In addition to the above, counsel submitted that there was an alternative remedy accessible to the applicant.
He asserted that the applicant's fears that the High Court would revisit its earlier decision could have been allayed by a request to place the matter before a different Judge. Thus, he reasoned that the applicant ought to be disabled from challenging the judgment of the court a quo before the Constitutional Court.
On behalf of the respondent, counsel argued that the grant of the present application would not be consonant with the interests of justice. He submitted, that, both the High Court and the Supreme Court have already decided the validity of the applicant's leadership credentials within the respondent.
In addition to the above, the respondent reasoned, that, the application for referral and leave to execute pending appeal were made in light of an order for spoliation granted against the applicant.
Counsel submitted, that, the balance of convenience favours the preservation of the status quo ante that existed before the applicant took matters into his own hands after he had voluntarily vacated the premises before again depriving the respondent's congregants of the same.
The respondent contended, that, the substantive application bears little, if any, prospects of success on the merits.
The contention made was that the determination of an application for leave to execute pending appeal by the High Court does not limit the jurisdiction of the Supreme Court to properly determine the matter on appeal.
In this regard, counsel for the respondent submitted, that, the applicant's right to access the Supreme Court was not affected by the High Court's decision ordering the execution of its own judgment pending appeal.
In addition, he contended that the hierarchy of the courts is not distorted by the grant of an application for leave to execute.
He stressed that the rights under sections 56(1) and 69(3) of the Constitution are not absolute.
Counsel argued strongly, that, the applicant had an obvious mis-apprehension of the law in suggesting that the application by the High Court of section 176 of the Constitution, to regulate its processes, violates the aforesaid fundamental rights.
He further submitted, that, the present proceedings are part of the applicant's strategy to unduly frustrate the respondent's administration of its operations and assets.
The contention by the applicant, that there is no alternative remedy, was also disputed.
Counsel for the respondent suggested, that, the Supreme Court is in a position to determine the substantive rights of the parties irrespective of the order for execution pending the appeal.
The respondent contended, that, the applicant had refrained from exposing the entire factual background of the dispute because it highlighted his deplorable conduct.
On the question of the alleged infringement of section 69(3) of the Constitution, counsel for the respondent submitted, that, the court a quo's determination did not constitute a diminution of the Supreme Court's authority over the appeal lodged by the applicant.
He argued, that, the High Court considered, as a factor, the balance of convenience in such applications when there was a need for it to regulate its own processes.
In addition, counsel for the respondent insisted that the court a quo's determination could only be challenged where a procedural irregularity was evident.
APPLICATIONS FOR DIRECT ACCESS UNDER RULE 21
An application for direct access to the Court is premised on the provisions of section 167(5)(a) of the Constitution. The section requires that the application be brought in terms of the rules of the Court. Rule 21(2) of the Constitutional Court Rules is relevant.
The principles governing applications for direct access are contained in Rule 21(3) of the Constitutional Court Rules which reads as follows:
“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –
(a) The grounds on which it is contended, that, it is in the interests of justice that an order for direct access be granted; and
(b) The nature of the relief sought and the grounds upon which such relief is based; and
(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”
The importance of compliance with the rules of this Court in an application for direct access to the Court was stressed in the case of Liberal Democrats & Ors v President of The Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CC07-18, wherein MALABA CJ advanced the following:
“An application for direct access is regulated by the Rules. An applicant has to satisfy all the requirements of the Rules. The Court found that the applicants failed to comply with the Rules in this regard. There has to be actual compliance with the contents of the provisions of the applicable Rule. It is not a question of mere formality. Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court.”…,.
Section 167(5) of the Constitution provides, that, any person may bring a constitutional matter before the court, directly, subject to the Rules of the court.
The jurisdiction of the court, in considering an application for leave for direct access under the section can only be triggered when the court is satisfied that the matter is in the interests of justice.
Rule 21(8) of the Constitutional Court Rules sets out the factors that the court may consider in determining the phrase “interests of justice”: see Mwoyounotsva v Zimbabwe National Water Authority CC17-20…,.
The Rule reads as follows:
“In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge, may, in addition to any other relevant consideration, take the following into account —
(a) The prospects of success if direct access is granted;
(b) Whether the applicant has any other remedy available to her;
(c) Whether there are disputes of fact in the matter.”
See also Chiwaridzo v TM Supermarkets (Private) Limited & Ors CC19-20…,.
The Constitution limits the Court's jurisdiction, and, under section 167(2)(b), it is only empowered to preside over and determine constitutional matters and issues connected with decisions on constitutional matters.
Thus, the exercise of its jurisdiction over other matters that do not have the flavour of “a constitutional matter” would be an illegality under the law.
The court, therefore, must ensure that only those matters that can pass muster as a constitutional matter are placed before it. This has been referred to as a sifting mechanism to protect the court from unwarranted matters finding their way to the court's corridors.
The special jurisdiction of the court has been re-affirmed by a plethora of authorities.
The learned authors I. CURRIE and J. De WAAL, in their book The Bill of Rights Handbook, 6th Edition (Cape Town: Juta & Company, 2013)…, state that:
“The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues, which are not decisive of the litigation and which might prove to be purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, according to the Constitutional Court, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance in which matters are decided without there being any possibility of appealing against the decision.”
Turning to this jurisdiction, in the case of Denhere v Denhere & Anor CC09-19..., this Court held that:
“The underlying requirement is that the application ought to clearly illustrate that it is in the interests of justice that an order for direct access be granted. As was noted by the Court in the Lytton Investments (Private) Limited case supra, the filtering mechanism for leave for direct access effectively prevents abuse of the remedy.”
The present application will therefore be assessed in light of the above considerations.
The aforementioned factors will be considered cumulatively in order to ascertain whether or not it is in the interests of justice to grant the applicant direct access to this Court's jurisdiction.
This approach was re-affirmed in the case of Zimbabwe Development Party & Anor v President of The Republic of Zimbabwe & Ors CC03-18…, as follows:
“The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle, that, all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”
WHETHER OR NOT THE APPLICATION TO CHALLENGE THE DISCRETION OF THE HIGH COURT IS IN THE INTERESTS OF JUSTICE
The prospects of success in the intended substantive application constitute an important and fundamental consideration that principally informs the court's decision on whether or not to grant direct access.
In Mvududu v Agricultural and Rural Development Authority (ARDA) & Anor CC10-21, the court highlighted the importance of assessing the prospects of success as follows:
“One of the factors for consideration by the court is whether or not the application has prospects of success. In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, the court stated:
'The court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.'”
The application is premised on an alleged violation of the applicant's rights by the High Court.
The jurisdiction of this Court is restricted by the Constitution itself. As a consequence, the court is disabled, by law, from adjudicating on matters that are not in keeping with its jurisdictional competence.
In casu, the applicant's complaint on the determination handed down by the court a quo, in granting leave to execute, relates to the constitutionality of the remedy. He summarises the issues as being:
“Whether or not the High Court's common law jurisdiction to order an execution of its judgment pending an appeal already pending in the Supreme Court:
(a) Is consistent with the hierarchy of courts provided for in section 162 of the Constitution of Zimbabwe 2013.
(b) Involving as it does, a lower court determining the prospects of success of an appeal already before a superior court, is consistent with the mandatory duty of the courts to be impartial as provided for in subsections 1 and 2 of section 164 of the Constitution of Zimbabwe 2013.
(c) Involving as it does a lower court determining the prospects of success of an appeal already before a superior court is consistent with the fundamental right of every person to a fair hearing enshrined in section 69(2) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.
(d) Involving as it does a lower court determining the prospects of success of an appeal already before a superior court is consistent with the fundamental right of every person to access to the courts enshrined in section 69(3) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.”
The applicant has challenged the inherent power of the High Court to regulate its own processes, that is, to cause the suspension of, or, as the case may be, the enforcement of its own judgments pending an appeal before the Supreme Court.
In paragraph 7 of the draft order sought, the applicant seeks an order declaring that it is the Supreme Court, in the exercise of its inherent jurisdiction, that has the power to regulate its processes and that it may, in exceptional cases, order the execution of a judgment appealed against pending the determination of an appeal before it.
In my view, the issue that arises is: how the Supreme Court assumes the power to order the execution of a judgment that did not emanate from itself?
It is pertinent, therefore, to consider and examine the respective powers of the High Court and the Supreme Court and the extent thereof insofar as the execution of judgments pending an appeal is concerned.
THE INHERENT JURISDICTION OF THE SUPERIOR COURTS
The Supreme Court and the High Court are both Superior Courts. These courts have inherent power to regulate their processes in respect of matters that come before them, subject to limitations imposed on them by the common law or by statute.
Even though the Supreme Court is a superior court, it is a creature of statute. Its jurisdiction and the ambit of its powers are governed by the Constitution and the Supreme Court Act [Chapter 7:13]. Section 169(1) of the Constitution spells out the jurisdiction of the Supreme Court. It provides as follows:
“169 Jurisdiction of Supreme Court
(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.
(2) Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.
(3) An Act of Parliament may provide for the exercise of jurisdiction by the Supreme Court, and, for that purpose, may confer the power to make rules of court.
(4) n/a”
In terms of sub-section (3) above, the jurisdiction of the Supreme Court, in civil appeals, is set out in section 21 of the Supreme Court Act. It provides as follows:
“21 Jurisdiction in appeals in civil cases
The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.
Unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.”
I turn next to consider the jurisdictional ambit of the High Court.
Section 171 of the Constitution provides:
“170 High Court
(not relevant)
171 Jurisdiction of High Court
(1) The High Court —
(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;
(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;
(c) May decide constitutional matters, except those that only the Constitutional Court may decide; and
(d) Has such appellate jurisdiction as may be conferred on it by an Act of Parliament.
(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.”
The clear distinction between the High Court and the Supreme Court is evident from a reading of the provisions of the Constitution itself.
Whilst the High Court is said to be a court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, the Supreme Court is, on the other hand, the highest court of appeal on matters - excluding constitutional matters.
It is obvious, therefore, that the jurisdiction of the Supreme Court is restricted to that established by the Constitution itself. This, however, must not be understood to mean that it is confined to the determination of appeals only.
Section 176 of the Constitution has confirmed the common law principle that Superior Courts have inherent power to regulate their own processes.
That section provides as follows:
“176 Inherent powers of the Constitutional Court, the Supreme Court and the High Court
The Constitutional Court, the Supreme Court, and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”
The applicant contends, rightly so in my view, that the Supreme Court has inherent jurisdiction and the power to control its processes. It is a jurisdiction that the court exercises when it is seized with a process that is directly linked to matters that are pending before it.
The exercise of the inherent power to control its processes was clarified by the court in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S). At 280-282, His Lordship CHIDYAUSIKU CJ stated:
"The first issue to be resolved is whether I have jurisdiction to entertain this Chamber application. This application is not one that involves original jurisdiction. It is ancillary to two appeals this court is already seized with. Once this court is seized with a matter, it has inherent jurisdiction to control its judgment: see South Cape Corporation v Engineering Management Services 1977 (3) SA 534 and the cases referred to in that case.
The inherent jurisdiction to control the court's judgment includes, in my view, jurisdiction to control the court's process, that is, jurisdiction to determine whether or not the execution of a judgment should be permitted pending the hearing of an appeal.
I will assume jurisdiction in this case on that basis.
I can also assume jurisdiction in terms of section 25 of the Supreme Court Act [Chapter 7:13]. I shall revert to this proposition later.
It is trite, that, at common law, a party cannot execute a judgment appealed against: see South Cape Corporation supra. The party wishing to execute despite the appeal can, however, approach the court a quo, if it has such jurisdiction, for leave to execute despite the noting of an appeal.
In the present case, the employees simply sought execution after registering the award without first seeking leave of the court to do so. The employer sought, unsuccessfully, an order from the High Court to stop the execution. The employees, after registering the arbitrator's award with the High Court, should have applied for leave to execute after the noting of an appeal.”
What emerges from the above is that the Supreme Court, in the exercise of its inherent power to control its own processes, can interfere in the process of the execution of a judgment on a matter pending before it on appeal.
The power of the Supreme Court to have recourse to its inherent power under the common law was confirmed in Universal City Studios Inc & Ors v Network Video (Pty) Ltd 1986 (2) SA 734 (A)…,. The Appellate Division of South Africa re-affirmed that the Supreme Court had the power to regulate its own procedures. The court stated:
“There is no doubt that the Supreme Court possesses an inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice: see Stuart v Ismail 1942 AD 327; Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 783A-G; also Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) H at 585-6; Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W) at 461F-462H.
It is probably true, that, as remarked in the Cerebos Food case (at 173E), the Court does not have an inherent power to create substantive law, but, the dividing line between substantive and adjectival law is not always an easy one to draw: cf Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A) at 781C-H; Botes v Van Deventer 1966 (3) SA 182 (A) at 198H; Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 (PC) at 836B; Salmond Jurisprudence 11th ed at 503-4; Paton Jurisprudence 4th ed para 127.
Salmond (op cit at 504) states that:
'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained.'”
The applicant, however, contends that the power that inheres in the Supreme Court, to control its processes, is wider than merely granting a stay of execution and includes the discretion to determine an application for leave to execute a judgment of the High Court where an appeal has been filed.
This power, contends the applicant, is found in the provisions of section 176 of the Constitution.
The common rule of practice is that the noting of an appeal against a judgment of the High Court automatically suspends the judgment, and, as a result, no execution against that judgment shall take place.
Any execution against the judgment is unlawful and of no legal force or effect.
The position on the execution of judgments pending appeal under the common law was settled in Reid & Another v Godart & Another 1938 AD 511, where DE VILLIERS JA..., said:
"Now, by the Roman-Dutch law the execution of all judgments is suspended upon the noting of an appeal; that is to say, the judgment cannot be carried out, and no effect can be given thereto, whether the judgment be one for money (on which a writ can be issued and levy made) or for any other thing or for any form of relief granted by the Court appealed from.
That being so, I see no reason why the Rule should be confined to judgments on which a sheriff may levy execution.
The foundation of the common law rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ, or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from."
The learned Judge went on to hold -
"…, that irreparable damage might be done to the applicants if the judgment were not suspended on the noting of the appeal, for the estate of the testator might be distributed by an executor in terms of the previous will. The damage would be as irreparable as in a case where a levy is made under a writ."
This Court is not, however, seized with the issue of the stay of a judgment pending appeal, but, rather, with the execution of such judgment upon application by the judgment creditor.
The burning issue is whether or not the power of the court, the High Court, that granted the judgment has now been ousted by section 176 of the Constitution.
The seminal authority under Roman Dutch law, as to which court can determine such an application, is South Cape Corporation v Engineering Management Services 1977 (3) SA 534 in which CORBETT JA said…,.:
“Whatever the true position may have been in the Dutch courts, and, more particularly, the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Another 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our courts, that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result, that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the court which granted the judgment.
To obtain such leave, the party in whose favour the judgment as given must make special application: see generally Olifants Tin "B" Syndicate v De Jager 1912 AD 377 at p481; Reid and Another v Godart and Another 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.”
The authorities referred to above were concerned with, and dealt with, the principle that a judgment creditor is entitled, at law, to apply for leave to execute a judgment on appeal pending the determination of that appeal.
The question of which court has the jurisdiction to consider and determine such an application, or should do so, had not been settled.
This was the issue that the court was faced with in Hermannsburg Mission v Sugar Industry Central Board 1981 (4) SA 717...,. In that case, it was stated that:
“It is quite clear that it is only the court granting the order appealed against which has, at common law, or in terms of the Rules, the power to give leave to allow its judgment to be carried into effect pending the decision of the appeal, and it follows that this Court has no jurisdiction to grant any of the relief sought.”
When the above passage is viewed against the comments of the learned former Chief Justice in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), it must be accepted that the court that grants a judgment has the jurisdiction to entertain and grant leave for its execution pending appeal.
While it cannot be denied that section 176 of the Constitution grants all superior courts the inherent power to control their own processes, it cannot be gainsaid that the exercise of that power must be judicious. It is an exercise of discretion.
In the formulation of the argument by the applicant, it is contended, that, in considering an application for leave to execute pending appeal, the High Court is forced to join common cause with one or other of the litigants. Counsel referred to this process as the court taking sides.
I am unable to agree.
An application for leave to execute a judgment pending an appeal is available because, by operation of the law, the noting of an appeal automatically suspends the decision appealed against with the effect that it cannot be carried into execution. However, if, despite the appeal, the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.
The application would be premised on the principle that the court has an inherent power to control its own process.
The general rule is that a party who obtains an order against another is entitled to execute it.
It is trite at law that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances or special grounds that justify a stay of execution to be granted as aforesaid.
The court, therefore, retains an inherent power to manage that process, having regard to the applicable rules of procedure.
What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court's judgment has been stated in a plethora of authorities.
In Mupini v Makoni 1993 (1) ZLR 80 (S)…, the court stated the position of the law clearly thus:
“In the exercise of a wide discretion, the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.
The general rule is that a party who has obtained an order against another is entitled to execute upon it.
Such reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or transfer of property, for, in such instances, the carrying of it into operation could render the restitution of the original position difficult: see Cohen v Cohen (1) 1979 ZLR 184 (A) 187C; Santam Investment Company Ltd v Preget (2) 1981 ZLR 132 (G) at 134G-135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983 (4) SA 850 (C) at 852A.”
See also Humbe v Maduna & Ors SC81-21.
THE EXERCISE BY THE SUPERIOR COURTS OF THE POWER TO REGULATE THEIR PROCESSES
The Court is being urged to find, that, as a result of the incidence of section 176 under the Constitution, the High Court can no longer hear and determine applications for leave to execute against judgments emanating from that court in the event of appeals having been noted against such judgments.
According to the applicant, the common law power to do so that used to inhere in the High Court has been ousted by the Constitution and now reposes in the Supreme Court.
Any exercise of that power by the High Court, it is further argued, would be against the spirit of section 176 of the Constitution, and, consequently, illegal.
From the above authorities, it is evident that the High Court has the power to regulate its own processes, and, that this includes the ordering of the execution of its judgments pending appeal.
It is relief that is granted in special circumstances.
The execution of a judgment before it becomes final, by reason of appeal, is therefore recognized. However, this highly exceptional relief must find itself firmly founded upon good reasons for the exercise of this discretion on the part of the court.
The principles that a court must have regard to, in an application for a stay of execution of a judgment, are akin to those considered when deciding whether or not to grant leave to execute against a judgment pending appeal: see Nzara v Tsanyau and Others 2014 (1) ZLR 674 (H); Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH39-07. They are:
“1. An appellant has an absolute right to appeal and test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.
2. Execution of the judgment of the lower court, before the determination of the appeal, will negate the absolute right that the appellant has and is generally not permissible.
3. Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal resting in the appellant.
4. In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporations (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545.
5. Where the judgment sounds in money, and the successful party offers security de restituendo, and the appellant has no prospects of success on appeal, the court may exercise its discretion against the appellant's absolute right to appeal.
6. An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success on appeal, especially where the whole object of the appeal is defeated if execution were to proceed: see Woodnov Edwards and Another 1966 RLR 335.”
Invariably, the decision of whether or not to grant an application for leave to execute turns on the relative strength or weakness of the appeal.
This necessarily entails the court that granted the judgment treading the same path during the initial proceedings leading to the judgment under appeal by the superior court. It also entails the court peeking into an appeal that is pending before the Appellate Court, and, in some way, pronouncing a verdict on it.
In this exercise, it takes into account the following considerations:
(a) The potentiality of irreparable harm or prejudice being sustained by the appellant if leave is granted;
(b) Conversely, the potentiality of irreparable harm or prejudice sustained by the respondent, on appeal, if leave to execute is not granted;
(c) The prospects of success on appeal, including the question as to whether the appeal is frivolous or vexatious or noted, not with the bona fide intention of reversing the judgment appealed against, but for some other motive e.g. to gain time.
(d) Where there is the possibility of irreparable harm to both parties, the balance of hardship or convenience.
In invoking the above considerations, a deliberation on the protection of the respective rights of the parties is also embarked on when assessing the issue of irreparable harm and potential prejudice.
Given that the order is not granted for the mere asking, and, further, that it is granted after an assessment of pertinent considerations, it becomes apparent that those safeguards are put in place to protect the rights of both parties that are constitutionally guaranteed, as prejudice may befall either party: see Amalgamated Rural Teachers Union of Zimbabwe & Anor v ZANU PF & Anor HMA37-18.
As is evident from the foregoing, the application to execute a judgment pending appeal is premised on the principle, that, the court exercises its inherent power to control its process in order to give effect to the over-riding principle that the court must ensure that its processes result in achieving real and substantial justice: see Santam Insurance Company Ltd v Paget 1981 ZLR 132...,.
In my view, the above dicta apply forcefully in the present matter.
The application of the remedy for leave to execute pending appeal forms part of the High Court's authority to regulate its own processes. It is not equivalent to a usurpation of the functions of the Supreme Court. This is so because, in assessing the prospects of success on appeal, the court is tasked with assessing whether the applicant has established an arguable case justifying that execution should be carried out notwithstanding the pending appeal.
The automatic stay of execution upon noting of appeal, as a rule of practice, is not a firm rule of law but a long-established practice regarded as generally binding, subject to the court's discretion.
At the core or pith of the inquiry relating to an application of this kind is the duty of the court to determine what is just and equitable.
In this endeavour, the court has to assess the prospects of success of the appeal.
In assessing the prospects of success in the upper court, the court has to consider whether the appellant has got an arguable case or whether it, the appeal, is manifestly a predictable failure.
This process cannot in any way be said to be a violation of the applicant's right to a fair hearing.
On the other hand, it constitutes the exercise by the court of its discretion in controlling its own process and ensuring that no abuse of court processes ensues.
Indeed, an assessment of prospects of success cannot be termed a violation of the applicant's right of access to the Supreme Court as, where an appeal is noted out of time, and the justice of the case demands, an order staying execution is always granted if circumstances require that a stay should be granted on the basis of real and substantial justice.
The courts, as confirmed by section 176 of the Constitution, have the inherent jurisdiction to control their own processes. Section 176 of the Constitution, in point of fact, re-affirms this common law power.
