The first respondent sued the applicants under case number HC665/10 vicariously, jointly and severally, the one paying the other to be absolved, for damages suffered by him as a result of a road traffic accident allegedly occasioned by the applicants' employee who was the driver of the applicants' motor vehicle at the relevant time allegedly during the course and scope of the driver's employment. The accident occurred on 11 May 2007. The driver was also a defendant in the suit but could not be served with the summons as he had relocated to South Africa. After a contested trial, CHEDA AJ, on 15 November 2012, found for the first respondent in case number HC-229-12 and awarded him damages in the sum of $16,000,= against both applicants jointly and severally plus costs of suit. The parties were represented by their current respective legal practitioners.

In November 2012, the applicants lodged an appeal against CHEDA AJ's judgment under cover of case number SC-380-12. On 24 January 2013, the first respondent obtained a default judgment in case number HC4182/12 granting him leave to execute the judgment in HB-229-12 pending appeal.

On 25 February 2013, under case number HC504/13, the applicants filed an application for rescission of judgment granting the first respondent leave to execute pending appeal in HC4182/12. The applicants simultaneously filed an application, under case number HC505/13 for condonation for failure to file their opposing papers timeously in case number HC4182/12. Both applications are being opposed.

Following the grant of leave to execute pending appeal, the first respondent instructed the Deputy Sheriff (second respondent herein) to attach the applicants' Toyota Land Cruiser registration number AAX 6474 which was done on 25 February 2013 with the Notice of Removal set for 28 February 2013.

It is this attachment that has engendered this urgent chamber application whose draft provisional order is couched in these terms:

“Terms of final order sought

Whereupon after reading documents filed of record:

It is ordered:-

That you show cause to this honourable court why a final order should not be made in the following terms.

Final order sought

1. The execution of judgment under 665/10 be and is hereby stayed until the finalization of case number SC380/12 and case number HC504/13.

2. The 1^st respondent pays costs of suit on an attorney–client scale.

Interim relief granted:-

Pending the confirmation or discharge of this provisional order the applicant (sic) is granted the following relief:-

1. The execution of the writ of execution under case number 665/10 be and is hereby stayed pending the finalization of case number HC504/13, being the applicants' application for rescission of judgment, and case number SC380/12, being the applicants' appeal at the Supreme Court.

2. The respondents be and are hereby interdicted from removing and selling applicants' Toyota Land Cruiser registration number AAX 6474.

3. If the 2^nd respondent has already removed the applicants' Toyota Land Cruiser registration number AAX 6474 the 2^nd respondent be and is hereby ordered to release the said vehicle to the applicants or their duly authorized representative.”

The first respondent opposed the urgent chamber application and raised two preliminary issues. They are the following:

1. The application is not urgent because the need to act arose on 13 February 2013 when the applicants became aware of the judgment under case number HC4182/12 granting the first respondent leave to execute pending appeal but did not act until 26 February 2013 (13 days later) when this application was filed - the applicants' having been galvanized into action by receipt of the writ of execution on 25 February 2013. He relied on three authorities regarding this issue, viz – Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H); Universal Merchant Bank of Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 (1) ZLR 234 (HC); and Ndebele v Ncube 1992 (1) ZLR 288 (SC).

2. Similarities between the interim order and the final order sought. The submission was that the effect of this is that once the interim order is granted, there will be no need to anticipate anything on the return day. Paragraph 1 of the interim order is incompetent in that if granted, the effect will be to obtain both rescission of the default judgment as well as dismissal of the application for leave to execute pending appeal via the backdoor.

This application was dismissed at the end of the hearing and I indicated that reasons would follow. These are they. On 19 August 2010, this court issued an order in the following terms:

“It is ordered that:-

(1) It is declared that two portions of land described as Delville Park, measuring 84,7953 hectares and Delville Park Extension, measuring 23,1260 hectares under Deed of Transfer 964/2009 (herein after “the land”) and registered in the name of the applicant have not been properly acquired by the respondent;

(2) It is further declared applicant is the rightful title holder of the land and is accordingly entitled to exercise all the rights of a registered owner in accordance with law.

(3) It is further declared that any offer letter issued by the respondent in respect of the land in terms of the Land Acquisition Act or any other law is invalid and of no force or effect; and

(4) The respondent pay costs of this application.”

The Minister of State for National Security, Land, Land Reform and Resettlement in the President's Office did not oppose the application resulting in the above order being granted by default.

The present applicant, Jabulani Nyoni, who was not party to the proceedings in the matter has launched this application on a certificate of urgency seeking a provisional order in the following terms:

“Interim Relief Granted

Pending confirmation or discharge of this provisional order, the applicant is granted the following relief;

(i) That execution of the judgment obtained by 1st respondent against 2nd respondent in respect of two portions of land described as Delville Park Extension, measuring 84,7953 hectares and Delville Park Extension, measuring 23,1260 hectares under Deed of Transfer 964/2009 (hereinafter “the land”) be and is hereby stayed;

(ii) That applicant be and is hereby allowed to operate his current projects on the said land; and

(iii) That 1st respondent only is to pay costs of this application at attorney and client scale only if she opposes this application.”

The applicant was seeking this order pending the finalization of an application for joinder to a matter that has already been finalized. His application for a joinder was filed on 31 March 2011 and is yet to be argued in court. Thereafter, if successful, he would apply for the rescission of the order granted on 19 August 2010....,.

Dibden Services (Pvt) Ltd...,. averred that the applicant had no prospects of success in the applications for joinder and rescission but those applications were not before this court yet.

After hearing both legal practitioners on whether or not this matter was urgent I concluded that it was not urgent and dismissed it for want of urgency and I indicated that my reasons would follow in due course. These are they…,.

The amended interim order that was being sought was as follows:-

“That pending the finalization of the application for rescission of judgment under case number HC636/13:-

On the 5^th March 2013, I heard and determined an Urgent Application by the applicant in chambers and dismissed the application on the grounds that the matter was not urgent. I have been requested to provide my written reasons for judgment and these are my reasons.

On the 1^st March 2013, the applicant lodged an Urgent Chamber Application seeking an order in the following terms:-

“INTERIM RELIEF

The Applicant is granted the following relief:-

1. Pending the return day the order granted by this Honourable Court dated 18^th February 2013 be and s hereby suspended.

2. 2^nd Respondent is ordered to stay execution of Applicant's property in the interim pending the return date.

3. In the event that 2^nd Respondent has removed Applicant's property, it is ordered that 2^nd Respondent restores Applicant possession of its property forthwith.

I received this urgent chamber application on 4 February 2014 at about 1430 hours. I immediately attended to the matter and after reading the documents filed of record I declined to set down the matter on account that the matter is not urgent. An endorsement to that effect was made the same day. I later received a letter from the Registrar, dated 24 March 2014, indicating that the applicants have noted an appeal against my refusal to set down the matter on an urgent basis. I was thus required to give further reasons for the decision I now proceed to do so.

The terms of the provisional order sought are as follows;

“INTERIM RELIEF GRANTED

1. 1^st AND 3^rd  respondents be and are hereby ordered to stay execution pending the filing of an application for late filing of Rescission of Judgement to be filed within forty eight (48) hours of this order.

2. Costs be costs in this cause.

SERVICE OF PROVISIONAL ORDER

Service of this order to be effected by applicant's legal practitioners.”….,.

The appellants are self actors and one wonders as to which legal practitioner are being referred to.

The terms of the final order are as follows;

“TERMS OF FINAL ORDER SOUGHT

That you show cause why a final order should not be made in the following terms; 

1. 1^st and 3^rd respondents be and are hereby ordered to permanently stay execution in case number HC59112/13.

This is an application filed under a certificate of urgency in terms of the Rules of this Court and seeks the following relief:-

“TERMS OF THE ORDER SOUGHT

That you show cause to this Honourable Court why a final order on the following terms should not be made.

a. That the second Respondent be and is hereby interdicted from removing and executing the Applicant's property.

b. That the First Respondent shall pay costs of this application.

INTERIM RELIEF SOUGHT

Pending Appeal of the judgment in HC7394/13, the applicant is granted the following relief;

1. The Second Respondent be and is hereby ordered to stay removal and execution of the Applicant's property immediately upon service of this order.

2. In the event that the Second Respondent does not comply with paragraph 1 above, that he/she be and hereby held to be in contempt of court and liable to all costs that will follow as a result thereof.

SERVICE OF THE PROVISIONAL ORDER

The default judgment was granted under cover of case number HC1676/07. The first respondent issued summons against the two applicants and the second respondent for replacement of her water pump using the current market value. The applicants were personally served with the summons on 15 July 2008. The amount claimed was denominated in Zimbabwe Dollars i.e. Z$300 million. On 25 June 2008, the first respondent sought to amend her claim and filed a notice of amendment on that date. The effect of the amendment sought was to do away with the Z$300 million claim and substituted it with a prayer in the following terms:-

“Wherefore, plaintiff claims –

(a) That defendant jointly or severally compensate plaintiff with a new pump; or alternatively

(b) That defendants, jointly or severally, pay to the plaintiff the current fair market value of the pump at the time of judgment.

(c) …,.

(d) …,.”

Going through the papers in the application for default judgment (under HC1676/07), it does not seem that this application for amendment was served on the applicants. This is a material amendment which should have been served. There is no evidence that the application for amendment was granted either. When the matter was set down on the unopposed roll, the first respondent (who was the applicant) merely filed three quotations for a similar new pump. The court granted an order in favour of the first respondent in the sum of US$1,500=. One of the issues raised by the applicants in their application for rescission, and in this application, is the replacement value of the pump. This value was “amended” from Z$300 million to US$1,500=. As alluded to above, the papers do not evince that the application for amendment was served on the applicants. This service would have highlighted to them that the original amount in the claim was being altered. Further, there is no evidence that the application for amendment was granted. With these flaws, it seems to me that there is merit in the application for stay of execution….,.

Accordingly, I grant the provisional order in terms of the draft.

In this urgent chamber application, the applicant, who is a self-actor, sought a provisional order in the following terms:-

“IT IS ORDERED THAT:-

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. Pending the finalization of case no. HC2343/14, the operation of the Court Order in Case Ho. HC5823/12 be and is hereby suspended.

2. All parties foot their own costs.

INTERIM ORDER

1. Pending the determination of this application, the execution of the Writ issued under Case no. HC5823/12 be and is hereby stayed pending the determination of the Application in Case no. HC2343/14.”

The present application, which the applicant filed with the court on 9 June 2014, was referred to me for my attention. When I went through the application, I noted that the event which the applicant wanted arrested had already taken place. I accordingly endorsed on the face of the application the words: “the application has been overtaken by events and hearing it would not save any purpose.” The endorsement which I made on the morning of 11 June 2014 was as a result of what the applicant had stated in its founding affidavit. It said:

“The 3^rd respondent has since attached applicant's property and removal has been set for the 10^th of June 2014.”…,.

Following this seemingly simple disposal of the matter which had been placed before me, the applicant filed a supplementary affidavit advising the court that the first and second respondents' representatives agreed that the removal of the attached goods be suspended pending the determination of the applicant's urgent chamber application or a mutual resolution of the issues which existed between the parties. Paragraphs 2 and 3 of the applicant's supplementary affidavit are pertinent to the court's reconsidered opinion to hear the application. The paragraphs read:

“2. Considering execution was scheduled for the 10^th of May 2014, the application filed on the 9^th of June 2014 only appeared before the judge on the 11^th after the date scheduled for the removal hence the Honourable Justice MANGOTA noted that the application had been superseded by events; consequently applicant responded in a letter dated 11 June 2014 attached as Annexure A and herein furnishes further information to paragraph 14 of the founding affidavit;

3. Though attachment was scheduled for the 10^th of June 2014, the applicant's legal practitioners and the 1^st and 2^nd respondents' representatives, Zimbabwe Security Guards Union, have agreed that the said removal be suspended until the 13^th of June 2014 pending either a determination on the urgent chamber application or a mutual resolution of issues between the parties.”

The supplementary affidavit which the applicant filed with the court, and served on the respondents, persuaded the court to entertain the application which was set down for hearing at 10am of Friday, 13 June 2014. On the mentioned date and time, the parties duly appeared and counsel for the first and second respondents requested that he be given time within which he would receive instructions, study the application and do justice to the respondents' case. The matter was, by consent of all the parties who were then present, postponed for hearing at 9:00 am of Wednesday, 18 June 2014. The postponement was subject to the fact that the parties would allow the status quo to remain until the hearing and the determination of the application.

On 6 May 2014, this court granted a default judgment against the applicant in case No. HC1747/14 for its ejectment from Lot 3 of Lot 22 of Lot 1 Block C of Avondale (the premises). This is an application for stay of execution of the judgment pending the determination of an application for rescission yet to be filed by the applicant.

The background to the application is that the applicant and the respondent entered into a lease agreement in 1968 whereby the applicant leased the premises from the first respondent. The applicant was operating a supermarket from the premises. The lease agreement was renewed from time to time. According to an arbitral award dated 18 June 2009, the lease agreement expired in 2003 whereupon the parties entered into a new agreement which was due to expire by effluxion of time on 28 February 2014. The applicant did not vacate the premises at the expiration of the lease. The first respondent issued summons on 3 March 2014, in case No. HC1747/14, for the ejectment of the applicant from the premises. The first respondent allegedly served the summons on the respondent on 6 March 2014. The applicant did not enter an appearance to defend. On 21 March 2014, the first respondent applied for default judgment. The application was granted on 6 May 2014 by this court. The second respondent commenced evicting the applicant on 16 May 2014 - without notice to the applicant. Certain items belonging to the applicant were removed from the premises. 

The applicant instituted the current proceedings. The second respondent ceased the ejectment upon being served with this application.

It is trite that the main guiding principle for the court in determining such applications is to grant stay of execution of a judgment where real and substantial justice requires such a stay, or, conversely, where injustice would otherwise be done. (See Chioza v Independent Property Development (Pvt) Limited and Another HH76-94…,.; Murumbechi v Townsend HH185-90; Cohen v Cohen 1979 (3) SA 420 (R)…,.; Chibanda v King 1983 (1) ZLR 116 (H); Santam Insurance Co Ltd v Paget 1981 ZLR 132 (H); and Strime v Strime 1983 (4) SA 850 (C).)

The applicant contended that it has prospects of success on the application for rescission and that if the application to stay execution is not granted it stands to suffer irreparable harm. It claims that it was never served with the summons commencing action and was surprised when the second respondent commenced ejecting it from the premises. It was therefore not in wilful default.

In support of this contention, the applicant filed an affidavit by one Sarudzai Muzodza. The same Sarudzai appears on the return of service as Nancy Muzodza. Ms Muzodza deposed that she is a receptionist at the applicants head office. She has been in the applicant's employment for the past 27 years. She stated in the affidavit that the applicant established a system where legal process would be received by a duly authorized person on the first floor of the applicant's head offices at Jaggers, 194 Mutare Road Msasa. She is stationed on the ground floor and is therefore not authorised to receive legal process. She averred that the second respondent did not attend to the applicant's head office to serve the summons and declaration. Had he done so, she would have referred him to one Jane Mukwewa on the first floor who is authorized to receive the process. She further explained that the second respondent might have known her name from his previous interactions with the applicant at the head office for a period of six months before the service of the summons in issue.

Jane Mukwewa, another receptionist, deposed to an affidavit supporting Ms Muzodza's claims on the procedure regarding service of legal process.

In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

These two cases were urgent chamber applications for an interdict pendente lite…,.

In both cases, the applicants sought an interdict to restrain the respondent from seizing certain second-hand motor vehicles that they had imported from South Africa. The respondent is practically the Chief Executive of the Zimbabwe Revenue Authority [“ZIMRA”]. The Zimbabwe Revenue Authority (ZIMRA) is the central collector of revenue for Government, established as such by the Revenue Authority Act [Chapter 23:11].

This was an urgent chamber application for a stay of execution pending the determination of an application for rescission of judgment.

The first respondent took a point in limine that the matter was not urgent. I reserved judgment on that and directed argument on the merits.

Towards the end of submissions, it seemed the matter could be amicably resolved by treading the middle path. By consent, I could order a stay provided the applicant paid security in terms of Order 32 Rule 246(3). It reads:

“Before granting a provisional order a judge may require the applicant to give security for any loss or damage which may be caused by the order and may order such additional evidence or information to be given as he thinks fit.”

A consent order seemed promising.

The proceedings were briefly adjourned to enable the parties to agree on the amount of security. But when they came back, not only were they not in agreement, but also they had become more poles apart. They had just agreed on one thing: I should make a determination on the papers as supplemented by the oral submissions.

In Golden Reef Mining [Pvt] Ltd & Anor v Mnjiya Consulting Engineers [Pty] Ltd & Anor HH631-15, I said an application for a stay of execution was a species of an interdict.

In my view, there is some difference between an ordinary, typical or orthodox interdict with a stay. With an ordinary interdict, the applicant must show a clear right in his favour, or, in the case of an interim interdict, a prima facie right having been infringed, or about to be infringed; an apprehension of an irreparable harm if the interdict was not granted; a balance of convenience favouring the granting of the interdict, and the absence of any other satisfactory remedy:

See Setlogelo v Setlogelo 1914 AD 221; Tribac [Pvt] Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]; Hix Networking Technologies v System Publishers [Pty] Ltd & Anor 1997 [1] SA 391 [A]; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage [Pvt] Ltd and Anor 1980 ZLR 378; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H].

On the other hand, in a stay of execution the requirement is simply real and substantial justice:

See Cohen v Cohen 1979 [3] SA 420 [R]; Chibanda v King 1983 [1] ZLR 116 [SC]; Mupini v Makoni 1993 [1] ZLR 80 [S]; and Muchapondwa v Madake & Ors 2006 [1] ZLR 196 [H].

The premise on which a court may grant a stay of execution pending the determination of the main matter or of an appeal is the inherent power reposed in it to control its own process. In Cohen v Cohen 1979 [3] SA 420 [R], GOLDIN J said…,:

“Execution is a process of the Court and the Court has an inherent power to control its own process subject to the Rules of Court. Circumstances can arise where a stay of execution, as sought here, should be granted on the basis of real and substantial justice. Thus, where injustice would otherwise be caused, the Court has the power, and would, generally speaking, grant relief.”…,.

In casu, the application is manifestly a brutum fulmen. So is, in my view, the rescission application as well.

In all the three proceedings, the epicentre of the dispute is the assault.

In the main action, I granted judgment when the first respondent said, and proved, that the applicant had assaulted him. In the rescission application, the applicant seeks rescission but does not, in the least, deny the assault. In this urgent chamber application, the applicant seeks a stay but does not also deny the assault. In both the rescission application and this urgent chamber application, the applicant's single and central focus is that there are triable issues in the first respondent's claim for damages. But not a single one of them relates to whether or not the assault did happen. His major complaint is that the amounts claimed were not proved. He challenges the general damages for contumelia. He challenges the special damages for medical expenses as well as the quantum of the salary the first respondent claimed was paid to some hired hand whilst he himself was recuperating. Nowhere does the applicant challenge liability, namely, the assault.

Counsel for the applicant conceded the point.

He blamed himself. He said the central focus had been on the triable issues. He said, from the Bar, the assault was denied. But he was saying this because the applicant, who was present during the hearing, together with his wife, was whispering something into his ears. But it was rather too late in the day. Plainly, denying the assault at that stage was a natural reaction to a barrage of questions that I was posing. A reading of both the rescission application and the urgent chamber application leaves one in no doubt that the assault was, in fact, tacitly admitted.

Even the argument on the so-called triable issues was tenuous.

Originally, and in the summons, the first respondent claimed $51,400= as damages. The bulk of that money, $50,000=, was said to be for contumelia. The rest was medical expenses and the cost of hired labour.

Contumelia, the indignity or humiliation suffered, are general damages. Like pain, shock and suffering, there are no scales to measure it. The final award is in the discretion of the court. The discretion is exercised judiciously, not whimsically, on the basis of the information made available. At the end of the day, the court makes a value judgment.

In his application for a default judgment, the first respondent submitted a detailed account of how the applicant had perpetrated the assault on his person, unprovoked; how it had been persistent; how it had happened in the public view at a shopping centre; how the first respondent was a man of standing, being someone running some businesses at that shopping centre, and how the assault had humiliated him and caused him physical injury.

On special damages, the first respondent supplied documentary evidence to support each one of the claims.

Exercising my discretion, and having had regard to the general principles of quantification of damages, I allowed the first respondent's claim but reduced the amount of general damages to $5,000=. I granted all the special damages.

Thus, the rescission application seems doomed to fail. There must be finality in litigation.

The urgent chamber application does not say what the value of the attached goods is.

Counsel for the applicant claimed, during the hearing, the tractor was worth $50,000= and the truck $10,000=. Clearly, these were thumbsucks, given on the spur of the moment because I had raised a query.

He, again, conceded the omission but persisted with the argument that the balance of convenience favoured a stay of execution because the applicant would suffer an irreparable loss if such valuable property was going to be auctioned for a song as is normally the case with judicial sales.

However, if that was the only problem with the urgent chamber application I could perhaps have reconsidered. But, as shown above, this application is incurably bad. The interests of justice do not favour a stay.

In the premises, it is my conclusion that the urgent chamber application was not urgent in the sense that the applicant did not himself treat his cause as such. For that reason, the application could simply be removed from the roll. However, and at any rate, the urgent chamber application had no merit and is liable to be dismissed. It is hereby dismissed.

On 13 July 2015, I heard argument on an urgent chamber application. It was for a stay of execution. I reserved judgment.

I kept thinking that the case being argued before me was not really the case that I had to make a ruling on. So I decided I needed time to check it out. But I directed and stressed that execution would be stayed pending my decision. This was not without reason. This reason shall soon emerge. At any rate, the Sheriff, the second respondent herein, had halted the execution once the application had been launched.

The case before me was almost a repeat application. NDEWERE J had dealt with it before. The background was this.

In February 2015, the first respondent (hereafter referred to as “the respondent”), a South African registered entity with a shareholding in the second applicant, obtained, in the main action, under HC11024/14, a default judgment against the applicants. It went on to issue a writ of execution. The applicants' property was attached. On 3 March 2015, and under HC1921/15, the applicants applied for rescission of the default judgment. Simultaneously, they applied, on an urgent basis, under HC1922/15, for a stay of execution pending the determination of their application for rescission.

The application for stay was heard by the Honourable Judge on 20 March 2015. She reserved judgment.

From the applicants' case before me, the respondent, or its counsel, or both, were obdurate and quite combative. The applicants say upon reserving her judgment, the learned Judge directed that the status quo ante would subsist until she had given her ruling. But, despite that directive, the respondent sought to execute. The applicants' counsel first sought the assurance of the respondent's counsel that his instructions to the Sheriff to proceed with execution would be withdrawn until the learned Judge had given her ruling. The applicants say the respondent's counsel denied any knowledge of any such directive. The applicants' counsel then sought clarification from the Judge herself. Part of their lawyers' letter to the Judge's clerk read:

“Quite contrary from the directive issued by the Judge, in our telephone conversation with Mr Mundia, just before writing this letter, he has indicated that there was never a directive to maintain the status quo until the determination of the application. We are of the position that Mr Mundia's conduct borders on the line of contempt of the Honourable Judge's directive. Any judgment that may be eventually granted by the Judge in favour of the Appellants will be rendered academic and unenforceable owing to the acts of the Respondent.

May the above disheartening developments be brought to the attention of Justice Ndewere for her intervention and possibly with the hope that her decision regarding the application is issued at the earliest opportunity to allow the parties to proceed accordingly.”

The learned Judge's response was that she had, indeed, issued a directive during the hearing to the effect that the respondent would stay execution pending her determination. In due course, the learned Judge did issue a provisional order of stay of execution. That was on 21 April 2015. The interim relief read as follows:

“[P]ending the determination of this matter, the applicant is granted the following relief:

Execution of the default judgment granted by the court in the matter HC11024/14 on the 2^nd of February 2015 be and is hereby stayed.”

The reference to “this matter” was undoubtedly a reference to the application for rescission of judgment that was pending. This emerges from a proper construction of the draft final order sought on the return day. In terms thereof, apart from the prayer for costs, the first respondent was called upon to show cause why a final order should not be granted that:

“…, the parties abide by the court's decision in the application for rescission of judgment filed by the applicant on the 3^rd of March 2015, wherein the applicant hereto seeks to rescission (sic) of a default judgment granted by the court in the matter HC2748/09 (sic) on the 22^nd of January 2015 (sic).”

Despite the imprecision of the draft order, and the obvious typing errors in it, it is clear that on 21 April 2015 this court stayed execution of the default judgment under HC11024/14 pending the determination of the application for rescission of judgment under HC1921/15.

But the matter went off the rails soon thereafter.

On 4 June 2015, the respondent appealed to the Supreme Court against the provisional order. The ground of appeal was essentially that the learned Judge had got it all wrong to hold that proof of service of a summons at a domicilium citandi et executandi was not the same thing as proof that the defendant had actually seen that summons. The Judge was also attacked allegedly for having incorrectly exercised her discretion to stay execution. As a result, the respondent wanted the judgment set aside and substituted with an order dismissing the application.

The respondent's Notice of Appeal expressly stated that leave to appeal was not required. No reasons were advanced for saying that. At the hearing, it turned out that the basis for such statement was section 43(2)(d)(ii) of the High Court Act [Chapter 7:06].

I shall come back to this aspect later on.

Soon after noting the appeal, the respondent instructed the Sheriff to proceed with execution. The applicants' property was advertised for sale. But the applicants' officers got to know about it on 6 July 2015 from a business associate. They immediately swung into action. They checked and verified with The Herald newspaper that had published the sale advert. They also checked and verified with the Sheriff. He confirmed he had been instructed by the respondent's counsel to proceed with execution - allegedly because the operation of the provisional order by NDEWERE J had been suspended on account of the appeal. The sale was scheduled for 11 July 2015.

Following a default judgment which was entered in its favour, under case number HC11024/14, the first respondent issued a writ of execution against the applicants' property. Reference is made in this regard to Annexure B which the applicants attached to their urgent chamber application.

As a reaction to the default judgment which had been entered against them, the applicants filed two applications with the court. They applied for:

(a) Rescission of the default judgment; and

(b) Stay of execution of the writ which the first respondent issued.

They applied that the writ be stayed pending the determination of their application for rescission. The two applications were respectively filed under case numbers HC1921/15 and HC1922/15.

TAGU J dismissed the application for rescission of judgment on 5 August 2015.

The applicants filed an appeal with the Supreme Court against TAGU J's judgment. They did so on 14 August 2015, and under case number SC472/15. Their appeal is pending before the Supreme Court. The applicants served on all the respondents their Notice of Appeal against the dismissal of their application for rescission of judgment.

Their knowledge of the pending appeal notwithstanding, the respondents made every effort to place the movable goods of the applicants under the hammer. The third respondent, the applicants alleged, stated that he would proceed to auction the applicants' property.

The applicants attached to their application Annexure F. The annexure is an advertisement which the third respondent placed in “The Herald” of Saturday 15 August 2015. The advertisement showed that the third respondent would auction the applicants' property on 22 August 2015. The applicants said they became aware of the advertisement on 17 August 2015.

The advertisement, the applicants stated, prompted them to file the present urgent chamber application.  They moved the court to interdict the respondents from auctioning their property on the basis of the default judgment which the court granted to the first respondent under case number HC11024/14 until the Supreme Court has determined their appeal. They submitted that they would suffer irreparable harm if the court dismissed their application.

The first respondent opposed the urgent chamber application. The second and third respondents did not appear in person or through legal representation. They were cited in their official capacities. The court remains of the view that they will abide by its decision.

The first respondent, which had a substantial interest in the application, raised two preliminary matters. It then proceeded to address the court on the substantive aspects of the application. The in limine matters which it raised were that:

(a) The court did not have jurisdiction over the matter; and

The first respondent's assertions on the issue of the court lacking the jurisdiction to hear the application was, to a large extent, misplaced.

That is so because, while it is accepted that an application for stay of execution pending the hearing of an appeal does involve an assessment of the applicant's prospects of success, the court's ability to make the assessment is not excluded. At any rate, the assessment is not the only factor which determines the propriety or otherwise of the application. Other matters come into play. Amongst such matters are the interests of justice as between the parties.

An application for stay of execution does, by its nature, fall into the area of equity reliefs. Where, therefore, equity demands that it be granted in the interests of justice, the court hearing the application is, as a general principle, enjoined to consider, and, where appropriate, grant it.

The applicants referred the court to section 176 of the Constitution of Zimbabwe. They argued, and correctly so, that the section confers power on the court to regulate its processes as well as to develop the common law or the customary law taking into account the interests of justice. The position which the applicants stated is in sinc with the remarks of GUBBAY CJ who, in Mupini v Makoni 1993 (1) ZLR 80 (S) said:

“Execution of a judgment is a process of the court and the court has an inherent power to control its own processes and procedures, subject to such rules as are in force. In the exercise of a wide discretion, the court may set aside or suspend a writ of execution or 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 of execution to satisfy the court that special circumstances exist. Such special circumstance can be readily found where the judgment is for ejectment or the transfer of property, because the carrying into operation of the judgment could make restitution of the original position difficult.”

The parties are, in this regard, referred to the following case authorities where the cited principle was also enunciated: Cohen v Cohen 1979 (1) ZLR 184 (G); Santam Ins Co Ltd v Paget 1981 (1) ZLR 132 (S); and Chibanda v King 1983 (1) ZLR 116 (H) wherein DUMBUTSHENA AJP stated that the applicant:

On 13 March 2017, soon after oral submissions, I dismissed for want of urgency, the applicants' urgent chamber application. It was for an interdict, precisely, a stay of execution pending the determination of some application that was pending before this court under HC67/17.

I gave my reasons ex tempore but the lawyers for the first and second respondents want them in writing.

The applicant, a medical aid society, whose business it is to cover its members when they seek medical services from medical doctors and medical institutions, consented to judgment in the sum of $155,268=10 in favour of the respondent by virtue of a Deed of Settlement signed by the parties which was to be paid within seven days from 16 February 2016, which is the date the consent order was granted by this court, per TAKUVA J.

The respondent had instituted summons action against the applicant in HC1319/15 which the applicant, through its current legal practitioners, had defended.

On 6 August 2015, the applicant's legal practitioners signed a Deed of Settlement in terms of which the applicant admitted liability in the sum of $305,268=10 of which $150,000= had already been paid leaving a balance of $155,268=10 which it undertook to pay in monthly instalments of $50,000= commencing on 31 July 2015. For good measure, the legal practitioners in question committed the applicant to payment of a further $1,000= in legal costs. In the event of a default, the Deed of Settlement was to be made a court order to be executed.

Alleging default, the respondent sought judgement in terms of the Deed of Settlement, and an order was then made aforesaid.

It is that court order which the applicant would like to have rescinded in terms of Rule 56 of the High Court of Zimbabwe Rules, 1971 in its application filed as HC523/16. In that application, the applicant alleges that after receiving the summons, it instructed its legal practitioners to settle the matter. The practice is that when a settlement is reached the applicant is advised to enable it to check and approve the settlement against its records of what is owed.

In this case, the lawyers did not advise the applicant of the settlement until they had signed the Deed of Settlement. When the admission of liability was made, the respondent was not owed the admitted amount but only $1,076=60 which was paid when the reconciliation was made around October/November 2015.

Although the reconciliation was made with the respondent, which remained silent for some time, the respondent still went ahead and moved for judgment on the basis of the Deed of Settlement signed in August 2015. The applicant says it was surprised to receive the court order on 22 February 2016, at a time when it owed the respondent only $2,922=60.

The applicant has then sought to have the consent order rescinded aforesaid. It has also submitted this urgent application for a stay of execution, to wit:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That pending the determination of an application to set aside an order by consent in HC523/16 respondent is hereby interdicted from initiating or proceeding with the process of executing the court order in HC1319/15.

2. The respondent is to pay costs of suit.

INTERIM RELIEF GRANTED

That pending the determination of this matter, the applicant is granted the following relief:

1. The respondent be and is hereby interdicted from initiating and proceeding with the execution and attachment of applicant's property pursuant to the court order in HC1319/15.

2. If attachment has already been done, such attachment is hereby stayed. If applicant's property has already been removed, the removed property is to be restored back to applicant forthwith.”

The deponent of the founding affidavit, Cosmas Mukwesha, who is the Group Legal and Corporate Affairs Executive, says that while the Deed of Settlement claimed that at the time of its signing the applicant owed $305,268=10, only a sum of $714=70 was owing and it was duly paid on 13 August 2015. This occurred as a result of the admitted oversight of the applicant's legal practitioners. The respondent had based its claim on its submitted claim forms which did not take into account the payments that had been made by the applicant. Having discovered the mistake, the applicant has moved quickly to rectify it by seeking a rescission of judgment.

The application is opposed by the respondent….,.

On the merits of the matter, Roselyn Mugodhi stated that there was no mistake in the settlement of the matter as the applicant and its legal practitioners “were in absolute communication.” 

Unfortunately, she does not show how she arrives at the conclusion and has not produced any proof of the communication as would discredit the assertion by the applicant that there was a mistake.

Roselyn Mugodhi insisted that the amount owing, as at 25 September 2015, is simply the balance taking into account payments made in terms of the Deed of Settlement. She made reference to four letters written by T. Bhatasara, between 2 June 2015 and 14 July 2015, as pointing to the fact that there was communication between attorney and client and to rule out the existence of a mistake in consenting to judgement.

Again, it is unfortunate that the letters in question were addressed to Sansole and Senda, the legal practitioners of the respondent and not the applicant. They were not even copied to the applicant. They therefore do no disprove the claim by the applicant that the settlement was reached without consulting it or that there was a mistake.

The respondent insisted that the applicant “is bound by the sins and omissions of its legal practitioner.” and should not be allowed to resile from the Deed of Settlement. It has no prospects of success in its application for rescission of judgment.

This may well be so, but then, I am not being asked to determine the merits of the application that has been made in terms of Rule 56. I have been asked to stay execution to facilitate the safe prosecution of that application.

Counsel for the respondent submitted that the application for rescission of judgment which is sought to be prosecuted has been brought in terms of the wrong Rule, Rule 56, and seeks to rescind the judgment without setting aside the impugned Deed of Settlement. It should have been made in terms of Rule 63(1) of this court's Rules.

The draft order also does not seek to set aside the Deed of Settlement. For that reason, as the application is defective and does not advance the applicant's case in any way, the application for stay of execution must also be dismissed. 

I do not agree.

The judgment that is sought to be rescinded was entered in terms of the Deed of Settlement, clause (e) of which provides:

“In the event of default of payment of the monthly instalments and later than the 10^th of the following month of default, the Deed will become an order of court which can be executed upon.”

It was in terms of that clause that the respondent sought judgement, and the judge granted it, after initially querying whether the applicant had defaulted and was advised, through an affidavit sworn to on 8 February 2016 by Roseline Sururu of the respondent, that no payments had been received by the respondent. Therefore, the judgment was granted by consent and can only be set aside in terms of Rule 56 and not Rule 63(1) which speaks to a default judgment.

Regarding the draft order, I agree with counsel for the applicant that if granted the order will enable the applicant to file a plea. As to whether the respondent will be allowed to cling onto the Deed of Settlement, which for all intents and purposes would amount to a withdrawal of an admission, will be determined by the court at the trial. 

I therefore reject that argument.

The applicant only seeks from me interim protection. Interim relief is granted on the mere showing of a prima facie case.

See Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H)…,.

In terms of Rule 56, a judgment given by consent may be set aside by the court and leave granted to the defendant to defend such action on “good and sufficient cause” being shown. It is stated, in the headnote of Roland and Another v McDonnell 1986 (2) ZLR 216 (S), that:

“A judgment given by consent may be set aside on good and sufficient cause; 'good and sufficient cause' in this context is to be determined according to the same principles by which it is to be determined in an application to set aside a judgment given by default. Moreover, a party will not normally be permitted to fight over, again, a battle which has been fought unless there has been a significant change in circumstances or the party has become aware of facts which he could not reasonably have known or found out in the first encounter.”

See also Masulani v Masulani and Others 2003 (1) ZLR 491 (H)…,.

It has been stated that the same principles applied in determining good and sufficient cause within the meaning of Rule 63 also apply to an application in terms of Rule 56. See Nyemba v CBZ Bank and Others HH255/114; Roland and Another v McDonnell 1986 (2) ZLR 216 (S); Washaya v Washaya 1989 (2) ZLR 195 (H)…,.

While I am not sitting, at the moment, to determine the application for rescission of judgement, it is necessary to take a peek at that application in order to see whether it has merit as to entitle the applicant to the remedy of an interdict for stay of execution. This is because, as I have said, the applicant still has to satisfy the requirements for the grant of an interdict which include the establishment of a prima facie right. This court will not grant a stay of execution merely at the asking or just because any application for rescission has been made even when it is frivolous or vexatious. It will only grant a stay pending the determination of such an application when the application is arguable.

The applicant and its legal practitioners may have conducted their case in a tardy and far from satisfactory manner resulting in the legal practitioners consenting to judgment. The fact however remains that to the extent that the liability of the applicant to the respondent was always fluid (the respondent was reducing the debt monthly), the applicant has an arguable case. There is an explanation for the mix up and an injustice will occur if it is not ventilated properly.

I am therefore satisfied that the applicant has made a case for the relief sought.

On the 14^th day of January 2016, a default judgment was entered against the applicant.

The first respondent subsequently obtained a writ of execution which he used to attach several of the applicant's property on 23 February 2016. Upon being served with the inventory and a copy of the relevant default judgment, the applicant filed an application for rescission of the default judgment.

This, therefore, is an application for stay of execution, on an urgent basis, pending the finalisation of the application for rescission of judgment.

What the applicant seeks is a temporary, interim or interlocutory interdict.

HOLMES JA set out the requirements for the grant of such an interdict in Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973 (3) SA 685 (A)…, (quoted with approval by SANDURA JA in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85 (S)…,.) as:

“The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right it is sought to protect is not clear, the matter of an interim interdict was lucidly laid down by INNES JA in Setlogelo v Setlogelo 1914 AD 221 at p 227. In general, the requisites are:

(a) A right which, 'though prima facie established, is open to some doubt'.

(b) A well-grounded apprehension of irreparable injury.

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant if the interdict is withheld against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience. The foregoing considerations are not individually decisive, but are interrelated; for example, the stronger the applicant's prospects of success the less the need to rely on prejudice to himself. Conversely, the more the element of 'some doubt' the greater, the need for the other factors to favour him…,. Viewed in that light, the reference to a right which, 'though prima facie established is open to some doubt'; is apt, flexible and practical, and needs no further elaboration.”

See also Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H)…,.

What the trial court found to have been proven is that Ndabazinengi Shava purchased a Bentley Continental motor vehicle, registration number AVO 1759 from Anderson Tagara for a sum of $230,000= after the latter had imported the luxury wheels from the United Kingdom. Ndabazinengi Shava did not execute a change of ownership of the vehicle into his name but it remained in the name of Anderson Tagara.

Firmly believing in the power of the Almighty which can bring abundant blessings to God-fearing people, Ndabazinengi Shava took the Bentley to a well known “prophet”, one Eubert Angel Mudzanire, who promised him abundant blessings if he 'seeded' the Bentley to the man of God. They agreed that if Shava's fortunes multiplied threefold within eight months of 'seeding' the Bentley to the prophet, the prophet would assume ownership but if such did not eventuate the Bentley would be returned to Ndabazinengi Shava.

As is usual with anything human, Ndabazinengi Shava's fortunes remained rooted in the same position at the expiration of the eight months period, and when he sought to recover the Bentley, he discovered to his shock that the prophet had purported to sell the Bentley to the first respondent for a paltry sum of $76,000=. Ably assisted by Anderson Tagara, they had signed a sale agreement to facilitate change of ownership. The prophet made good his escape leaving Anderson Tagara at the mercy of the long arm of the law.

Even the help of a couple of the prophet's relatives, who testified in his favour, could not save Anderson Tagara who was convicted and sentenced aforesaid. The trial magistrate was requested by State counsel to issue a Disposal Order relating to the Bentley in terms of section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] as it had been exhibit 4 during the trial. He skirted the issue and ruled as follows…,.;

“I have also considered whether I should order that the Bentley motor vehicle should be returned to the complainant. I have noted that the motor vehicle is currently in the hands of an innocent purchaser and that by handing the registration book over to Eubert Angel Mudzanire the complainant made it possible for Eubert Angel to represent himself and (sic) the owner. The innocent part (sic) can easily raise a defence of stoppel (sic) against the complainant, because of this it is best to leave the issue of the motor vehicle to the Civil Court. In any case, it was clear that the issue of the motor vehicle is already before the High Court; it will be best to leave it to be finalised there.”

Whatever it is that the magistrate was saying, the bottom line is that he was washing his hands of the Bentley - Pilate style, and, in the process, abdicating his adjudicating duties. It is either Ndabazinengi Shava was entitled to the Bentley or the first respondent was. There can be no middle road, never mind the existence of a Civil Court.

The applicant, who is the Prosecuting authority in this country, has since challenged the decision of the magistrate by way of review application made in this court and that application is yet to be determined. Meanwhile, the first respondent continues to enjoy the use of the Bentley, a situation which riles the applicant who has now come to court on an urgent basis seeking the following relief:

“TERMS OF THE FINAL ORDER (SOUGHT)

1. The first respondent be and is hereby ordered to surrender a motor vehicle, a Bentley Continental, registration number ACO 1759, engine number CKH002121, chassis number SCBDN 23WOBC68378 to Ndabazinengi Shava (complainant in case CRB R 104/15) within 24 hours of the granting of this order pending the outcome of the main application for review.

2. The respondents to bear costs of this suit if they oppose this application.

INTERIM RELIEF (GRANTED)

1. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental, registration number ACO 1759, engine number CKH003121, chassis number SCDDN 23 WOBC 68378.”…,.

The applicant states that the magistrate was required, by section 61 of the Criminal Procedure and Evidence Act [Chapter 9:07] to issue a Disposal Order in favour of Ndabazinengi Shava upon an application being made before him to do so because he had made a finding that the Bentley belonged to Ndabazinengi Shava.

I agree.

Section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:

“Subject to this Act and except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in s 60 or produced in evidence –

(a) If the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or

(b) If the person from whose possession it was obtained is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

(c) If no person is entitled to the article or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.”

In my view, the section reposes upon a trial court the discretion to proceed in terms of three available options set out therein. The Bentley formed the subject of the criminal prosecution and was produced as evidence and therefore in the custody of the court. At the conclusion of the trial, the magistrate should have issued a Disposal Order in terms of section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]:

S v Muzvaba HH360-13.

The magistrate made clear findings that the vehicle belonged to Ndabazinengi Shava and his decision to become ambivalent at the end was not helpful at all. At page 12 of his judgment he stated:

“I therefore believe the accused when he say(s) he imported the Bentley motor vehicle on his own and when the motor vehicle was finally delivered in Harare the complainant stated that he was interested in the motor vehicle and accused sold the motor vehicle to the complainant for US$230,000= and complainant paid in full the money and accused gave him the Bentley in question together with all the documentation and the number plates which were not yet fixed in the motor vehicle, but the two did not reduce anything to writing. However, the issue of whether the complainant gave the accused money to import the motor vehicle in question or not is neither here nor there. It is not very important because the moment when accused sold the motor vehicle to the complainant and through their verbal agreement the accused passed ownership to the complainant of the motor vehicle in question. What is important is to decide what happened after mid-May 2012 when the complainant was now the true owner of the Bentley motor vehicle in question.”

After indulging himself a lot about matters of religion and how the prophet was required to intercede between Ndabazinengi Shava and God for the former to be showered with blessings, the magistrate again pronounced, at page 18 of the judgment:

“What this mean(s) is that when the complainant handed over the car and the registration book he did not pass ownership because he never formulated that intention. Ownership was only going to pass to Eubert Angel after realisation of blessings and Eubert Angel knew that ownership had not passed to him and that necessary ownership transfer document was to be done upon complainant receiving blessings. Eubert Angel was also aware that in the event of no blessings by complainant, complainant was to get his car back. To this end Eubert Angel, though well aware that he had not acquired ownership, proceeded to dispose of the motor vehicle as if he was the owner. The motor vehicle had been placed under the custody of Eubert Angel pending the fulfilment or otherwise of the condition precedent to him getting ownership.”

I have stated that section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] permits the trial court to order the return of the article to the person from whom possession was obtained if that person may lawfully possess the article.

The court found that Ndabazinengi Shava was the owner and that ownership did not pass to Eubert Angel Mudzanire. Prior to that, ownership had passed from Anderson Tagara to Ndabazinengi Shava even though documentation had not been done. Clearly, therefore, by its findings, the trial court should have ordered the return of the vehicle to Ndabazinengi Shava.

It did not, contenting itself with passing the buck to some other court.

It matters not that the first respondent was not a party to the criminal proceedings. He could not be as he was not an accused person. What remains is that section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] allows for the return of the article to the lawful owner at the conclusion of the trial….,.

I am not sitting to decide the propriety or otherwise of the review application but whether to grant the applicant interim relief in the face of the trial court's inability to issue a Disposal Order.

Interim relief is granted on the mere proof of a prima facie case: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H)…,.. In my view, the applicant has indeed established a prima facie case for the relief sought….,.

In the result, I grant the provisional order in terms of the draft order the interim relief of which is as follows:

INTERIM RELIEF GRANTED

That pending the determination of this matter, the applicant is granted the following relief:

1. The first respondent is directed not to use or dispose of the motor vehicle, Bentley Continental, registration number ACO 1759, engine number CKH002121, chassis number SCBDN 23 WOBC 68378 until the review application filed by the applicant has been finalised.

This is an appeal against a judgment of the High Court staying execution of a judgment granted to the appellant.

THE BACKGROUND FACTS

On 29 August 2012, the appellant and the first respondent concluded a 'foreign currency-denominated lease' agreement (“the lease agreement”) in terms of which the first respondent hired from the appellant certain earthmoving and other equipment as described in the schedule to the lease agreement. The lease was to expire on 28 September 2014. The second and third respondents executed unlimited guarantees in terms of which they bound themselves as sureties and co-principal debtors, together with the first respondent, for the due performance by the latter of the terms of the lease.

It is common cause that the first respondent having breached the conditions of the lease agreement by its failure to pay monthly rentals, the appellant issued summons out of the High Court claiming US$88,225=14 being arrear rentals as at the date of summons. On 10 September 2014, no appearance having been entered to defend, default judgment was obtained against all three respondents for the sum claimed, interest and costs as well as the return of the property hired.

It is also common cause that on the 22^nd of October 2014, the respondent made payment to the appellant of US$50,000= followed, on 3 and 4 March 2015, by further payments of US$30,000= and US$8,000=, respectively, making a total of US$88,000=.

The above payments were appropriated by the appellant, not to the satisfaction of the judgment debt, but to arrear rentals which had arisen after the date of summons. Thereafter, according to the appellant, an amount of US$88,000= which included a residual payment in terms of the lease remained outstanding. The appellant claimed that it was empowered by clause 7 of the lease agreement to appropriate the payments in the manner that it did. Clause 7 provides:

“The lessor may appropriate, at his sole discretion, any payments received from the lessee to any indebtedness due by the lessee to the lessor, the lessee waives his rights to appropriate payments to any other debt or account of his choice.”

Therefore, using the judgment obtained in the High Court…, the appellant caused a writ of execution to be issued and instructed the Sheriff to recover the judgment debt. On 26 January 2015, seven (7) buses and two (2) trailers belonging to the respondent were attached in execution. The amount to be recovered was stated to be US$92,773=14 being the total of the judgment debt and costs.

The threat of removal and sale of the property attached for the recovery of the amount stated in the writ drove the respondents to seek, from the High Court, an order for the stay of execution of the judgment.

In its founding affidavit, the first respondent averred that with the payment of US$88,000=, the principal amount claimed in the summons had been fully paid and that what remained was the sum of $225=, interest on the judgment debt which was yet to be calculated and costs which were still to be taxed. The respondents stood ready and willing to discharge these balances, which they claimed were relatively nominal, as soon as they were advised of the quantum thereof. However, when the respondents enquired as to the outstanding balance, the appellant's legal practitioners presented them with a 'deed of settlement' which required the respondents to acknowledge, and undertake to repay, in fixed instalments, a total sum of US$138,225=14. That sum included arrear rentals as at 20 January 2015 and the 'residual value for the leased equipment'. Failure by the respondents to sign the deed of settlement would result in the goods attached being removed and sold. It was averred that the goods attached have an estimated value of US$1 million.

The respondents averred that the appellant's conduct, in seeking to sell the attached goods when the debt had been substantially satisfied, save for the paltry sum of US$225= as well as costs and interest, which had not been determined, was unlawful, unjust and oppressive. The removal of the vehicles would greatly disrupt the business of the first respondent since the buses are used for the transportation of fare paying passengers in the course of the first respondent's business.

Further, the execution was not for the bona fide purpose of recovering the amount due in terms of the judgment of the court since the judgment had been satisfied, save for the small amounts which the respondent had tendered to pay upon being advised of the quantum thereof. It was therefore unlawful for the appellant to use the warrant of execution to compel the respondents to sign the deed of settlement.

ISSUES

The two issues raised in the grounds of appeal are:

(a) Whether the court erred when it determined that the appellant was obliged to apportion the respondents' payment of US$88,000= towards the settling of the judgment debt; and

(b) Secondly, whether the court erred in its determination that once the appellant had issued summons for a stated amount, the payments made by the respondent could not be apportioned to any debt which arose after the date of issue of the summons.

However, this being an application for the discretionary remedy of a stay of execution of one of its judgments, the question before the court a quo was whether the respondents had alleged circumstances which persuaded it to exercise its discretion in favour of the latter….,.

The order granted was a stay of execution of a judgment of the High Court.

Such an order is granted by the court in the exercise of its inherent power to suspend the execution of its orders in appropriate circumstances, HERBSTEIN & VAN WINSEN: the Civil Practice of the High Courts of South Africa, 5th ed. Vol 2….,.; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.

The decision as to what, in any given case, is an appropriate circumstance is made by the court after consideration of facts placed before it. In exercising this inherent power, the court exercises a judicial discretion.

This is an urgent application for stay of execution by the Sherriff of certain lease equipment that the applicants are leasing from the respondents and for which they are said to have defaulted payment.

The first respondent was a duly registered Commercial Bank prior to 6 January 2015. It surrendered its Banking licence to the applicant on 6 January 2015 as a result of capitalisation challenges.

On 9 January 2015, the applicant petitioned the High Court, in case no. HC180/15, for the liquidation of the first respondent. The applicant issued a press statement in various newspapers advising the public of the fact that the first respondent had surrendered its licence and of its intention to wind up the first respondent.

Prior to the above events, the second respondent had obtained an order against the first respondent in case number HC27484/14. On 10 January 2015, after the press release by the applicant and the filing of HC180/15, the second respondent instructed the third respondent to proceed with the execution of the order in HC27484/14. At the same time, it signed a bond of indemnity in favour of the third respondent. On 12 January 2015, the third respondent proceeded to evict the first respondent from its premises at Travel Plaza and attached various movables.

When the applicant became aware that execution had commenced, it wrote to the third respondent on 12 January 2015 advising him of the petition to liquidate the first respondent. The letter set out the provisions of the Companies Act [Chapter 24:20], and, in particular, sections 210 and 213. It further set out the import of the provisions that the filing of a petition for liquidation stays any legal proceedings against the company being wound up.

In addition to the letter, counsel for the applicant communicated telephonically with Mr. Smart Moyo, the Messenger of Court, Harare, confirming the contents of the latter. It was averred by counsel for the applicant, in the founding affidavit, which averment was not controverted, that Mr Moyo indicated that he would proceed with the execution in the absence of a court order directing him to cease execution.

It is this response that caused the applicant to seek an order directing the third respondent to desist from proceeding with the execution.

The parties first appeared before me on 15 January 2015. Initially, counsel for the third respondent submitted that the third respondent would only be prevented from proceeding to execute by an order of this court. She however abandoned this argument and all the parties agreed to the court granting a final order.

The applicant filed this application seeking the following provisional order:

“Pending the determination of this matter on the return date the applicant is hereby granted the following relief:

(1) The warrant of eviction and notice of eviction issued under HC414/16 be and is hereby stayed pending the finalization of HC3737/12.

(2) The 1^st, 2^nd and 3^rd respondents be and are hereby interdicted from evicting the applicant and all those claiming occupation through her from House No.11438 Nkulumane, Bulawayo pending the finalization of HC3737/12.

(3) In the event that eviction has taken place, the 3^rd respondent be and is hereby ordered to restore the applicant to House No. 11438 Nkulumane, Bulawayo.”

The applicant seeks stay of execution of the order of this court granted on 16 February 2012 under case number HC3351/11.

The background facts of the matter are the following.

Under HC3351/11, the first respondent obtained an order against the applicant for the payment of US$9,099= arrear rentals (plus interest on the said amount), cancellation of lease agreement between the applicant and the first respondent and eviction of the applicant from rented property, being 112A Fenleigh Building, Fife Street, Bulawayo. This order was granted by default on 16 February 2012 after the applicant had been barred on 30 January 2012.

What is apparent from the papers is that the summons were served on the applicant on 2 November 2011. The applicant entered an appearance to defend on 5 December 2011. The applicant did not file the plea. Consequently, on 20 January 2012, the first respondent filed a notice of intention to bar and served it on the applicant's legal practitioners the same day. Still no plea was filed. As a result, the applicant was duly barred on 30 January 2012 leading to the application of the above-mentioned default judgment.

Under HC551/12 the applicant filed an application for rescission on 21 February 2012. This application is opposed by the first respondent. The answering affidavit and heads of argument have been filed in the latter application. That matter is awaiting set down.

The major hurdle facing the applicant is that this urgent application was filed after the Deputy Sheriff had acted pursuant to writs issued under HC3351/11. The applicant seeks, in essence, the return of the attached property and reversal of the writ of ejectment filed on pages 12 and 13 of this application.

It is trite law that an interim interdict is not a remedy for past invasions of rights and will not be granted to a person whose rights in a thing have already been taken away from him by operation of law at the time he or she makes an application for interim relief. An interdict is sought to protect rights in property. An application for interim interdict for property already taken away from the applicant may not be granted –Meyer v Meyer 1948 (1) SA 484 (T); Stauffer Chemicals v Monsanto Co 1988 (1) SA 805 (T)…,.; and Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S)…,.

For this reason alone the application should fail. Accordingly, the application is dismissed with costs.

A stay of execution is discretionary upon the court, a discretion which must be exercised judiciously at all times. This court is not in the habit of exercising its discretion in favour of those abusing its process: Zvidza & Anor v Mudoti HH422-14.

An abuse of court process is the use of the process of the court for purposes for which it is not meant.

It is unfortunate in the extreme and should be supressed by all means possible as resort to it by litigants has always tended to bring the administration of justice to disrepute. The moment a litigant thinks he or she can come to court to seek shelter against imminent execution, not because the litigant has a cause of action but because they think they can mumble something in an application and hope that while the court struggles to decipher what it is they are saying, they can enjoy to shelter under the court's wings delaying the inevitable as much as possible, that is an abuse of court process. It is even more repugnant when it appears to be instigated by the involvement of a legal practitioner, who, as an officer of the court, should know better.

The two (2) applicants have come to court on an urgent basis seeking the following relief:

“TERMS OF THE FINAL RELIEF SOUGHT (sic)

That you show cause to this Honourable Court why a final order should not be granted in the following terms:

(a) Stay of execution be and is hereby granted.

(b) Cost of suit should not be awarded against 1st respondent.

INTERIM RELIEF GRANTED

Pending the finalisation of this matter:- (sic)

(c) The execution of the first respondent's writ of execution in HC2594/13 be and is hereby stayed pending the finalisation of 1st and 2nd applicant's application for rescission of judgement in HC6560/14.

(d) Costs of suit are granted in favour of applicant on an ordinary scale.”

Never mind the procedural challenges posed by the wording of the provisional order, the grammatical frailties and the disregard of Form 29C given in the rules of court, but this is an application in which the applicants seek to renege from a judgement granted at a pre-trial conference by consent following a Deed of Settlement by the parties.

On 19 June 2012, the two (2) applicants concluded a sale agreement with the first respondent in terms of which they sold to him a 25 acre piece of land in Chegutu for $26,500=. When they failed to transfer the land to the purchaser, in breach of the agreement, he cancelled it and sued for the return of the purchase price. Although the applicants initially resisted the suit, they relented at the pre-trial conference. Self–acting, they signed a Deed of Settlement which was then reduced to a consent order granted on 3 June 2014, per BHUNU J, in terms of which they are required to pay the sum of $26,500= to the respondent. It would appear that when the Deed of Settlement was concluded the applicants had committed to paying the debt by 31 May 2014 but the ink on the Deed had hardly dried when they returned, down on their knees, they filed a document which they christened: “Request for further extension on Deed of Settlement” to wit:

“The 1st and 2nd defendants (the applicants herein) having reached settlement with the plaintiff on all issues in dispute on or before the 31st May 2014 hereby kindly request for the extension on stay of execution due to the following reasons:

1. That the defendants had entered into an agreement with a third party who had agreed to advance them with the proceeds from the sale of tobacco harvest.

2. The above was to be done before the 31st of April 2014 (sic).

3. That the liquidity challenges currently being faced in the country's economy has had a serious negative bearings (sic) on issues such as this one which require liquidity settlement.

4….,.

5. Be and it is hereby kindly requested a further extension to time and further PTC before Honourable Justice BHUNU to consider and probably agree on a new payment plan being proposed by the defendants as follows:

(a) That a down payment of $1,000= (one thousand dollars) on or before 31 May 2014 from the soya bean harvest from a buyer who has already been identified.

(b) That a monthly instalment of $500= (five hundred dollars) from horticulture proceeds until the whole amount is settled.

(c) Consider amortisation figures to cover interest on the monthly outstanding balance.

6….,.”…,.

The buyer of soya beans must have disappointed because on 10 June 2014 the applicants, this time acting through their legal practitioners, Ngarava, Moyo & Chikono, dispatched another proposal in the following:

“Our client advised us that the matter had gone to pre-trial conference level and a Deed of Settlement was signed by the parties to the litigation. Considering the economic environment prevailing it has turned out that it is very difficult for the other party to fulfil their part of the bargain. We note that the land in question is still available. We are in the process of getting instructions from our client with a view of settling the matter amicably. We are aware that efforts have always been made to achieve the same result.”

Enter a new set of legal practitioners following the attachment of property on 31 July 2014 and the commendable spirit of amicably settling the matter is sacrificed at the alter of expediency and the applicants start singing a different tune.

In the founding affidavit of the first applicant, he states that they “did not fully appreciate the consequences of our concession” and go on to mumble something to the effect that they thought they were only admitting to having received the purchase price and that they have now been advised by their legal practitioners that they have a bona fide defence in that the first respondent was unjustly enriched by occupying the piece of land for two (2) years.

They have now filed an application for rescission of the consent judgment and would want execution to be stayed pending a determination of that application.

Now, to me this is trifling with the court in the extreme and a lamentable abuse of process. It would appear that the applicants underwent their damascene experience the moment they sought and obtained legal counsel from a new set of legal practitioners. The same people who admitted receiving the purchase price and failing to transfer the land to the buyer; who have been pleading for months for more time to sell their produce in order to pay what they know to be rightly due; and filed a document in this same court asking it “to consider and probably agree on a new payment plan” have thrown all that out through the window and would want the court to reverse the whole process.

If that is not an abuse of process of gigantic proportions, then nothing is.

As to why this court should always stand ready to cushion the applicants in their vacillations we are not told. What is however clear is that after the applicants could not raise the money they undertook to refund they thought of coming to court for shelter and not to pursue any recognisable remedy. They have none and this application is thoroughly without merit.

While it is true that in terms of Rule 56 of the High Court Rules, a judgment given by consent may be set aside by the court and leave given to the defendant to defend, such leave can only be given on “good and sufficient cause”. I am aware that I am not sitting to determine the merits of the application for rescission of judgment, I having been asked only to stay execution. However, a stay of execution is discretionary upon the court and this court is not in the habit of exercising its discretion in favour of those unashamedly abusing its process, for an abuse of monumental proportions this application is.

In determining what constitutes “good and sufficient cause” the same principles used to determine that in an application to set aside a judgment given in default apply. In addition, a party will not normally be permitted to fight over again a battle which has already been fought unless there has been a significant change in circumstances or a party has become aware of facts which he could not reasonably have known or found out in the first encounter: Roland & Anor v McDonnell 1986 (2) ZLR 216 (S); Nyemba v CBZ Bank & Ors HH255-14.

To my mind, the inability to raise the money due in terms of a consent order is not one such circumstance and certainly not a fact the discovery of which would entitle a party to a second bite at the cherry as it were.

Counsel for the applicants has submitted that there are material disputes of fact which can only be determined at the trial - as if this is an application for summary judgment.

He further argues that the applicants suffered court fright at the pre-trial conference which caused them to capitulate when in fact they had a defence. The defence is in the form of a counterclaim for use of the land which the respondent enjoyed before the agreement was cancelled. It is significant that there was no counter-claim for that filed in the main action. It is difficult to understand how the existence of such counterclaim has only been discovered now. There is nothing new that the applicants were not aware of at the time that they consented to judgment.

Something has also been said about the applicants not being aware that they could have offered alternative land to the respondent. What this means is that the applicants would want to negotiate a new contract with the respondent.

While I am not dealing with the rescission of judgment application, in determining whether to exercise my discretion to grant the applicants the indulgence of a stay of execution, I must have regard to whether they at least begin to present good and sufficient cause to reverse the consent order. I am not persuaded any such cause is presented.

Counsel for the respondent has asked for costs on a higher scale to be granted.

I have no doubt in my mind that the applicants' misguided effort must be rewarded, not with the order that they seek for they do not deserve it, but with an award of punitive costs which they richly deserve for daring to think that this court should be drawn to the sphere of kindergarten.

In the result, this application is hereby dismissed with costs on the legal practitioner and client scale.

Secondly, it was argued, by the counsel for the first respondent, that the relief sought is improper in that the applicant prays for an interdict instead of a stay of execution….,.

The respondent's second point in limine relates to the competency of the order sought. The argument is that since an interdict has different requirements from those of an application for stay of execution the applicant should have applied for a stay of execution instead of an interdict.

This argument has no merit in that the respondent is simply splitting hairs. There is nothing final about the interim relief prayed for in casu…,.

The point in limine is dismissed.

This is an urgent chamber application for stay of execution pending the determination of action proceedings instituted by the applicant in case number HC3331/18.

It is common cause that in case number SC18-18 the applicant lost in an appeal that had been lodged with the Supreme Court by the respondents. Judgment in case number SC18-18 was granted on 18 March 2018.

The background to the saga is that the applicant's late husband (Dzingai Kashumba) and the fourth respondent entered into an Agreement of Sale in respect of Stand number 552 of Quinnington Township of Subdivision A of Subdivision F of Quinnington Borrowdale Estate. The fourth respondent instituted proceedings for confirmation of cancellation of the agreement on the basis that Dzingai Kashumba had not paid the purchase price in full. The applicant became a party to those proceedings upon substitution following the death of Dzingai Kashumba. At some stage, the applicant sold a portion of the land to one Tafirenyika Kambarami.

In SC18-18, the Supreme Court held that title in the land had not lawfully passed to Dzingai Kashumba, and, consequently, to the applicant. As a result, the applicant could not lawfully alienate the property. It was also observed by the Supreme Court that when the applicant disposed of the land she had misrepresented that it was free of disputes.

Ultimately, the Supreme Court made the following order:

1. The Registrar was ordered to cancel the deed of transfers in favour of Tafirenyika Kambarami and the late Dzingai Kashumba.

2. The first appellant was entitled to keep as rouwkoop payments made to her by the late Dzingai Kashumba.

3. The first respondent (the present applicant) and the fourth respondent were ordered to vacate Stands 552 and 553 Quinnington Township of Subdivision A of Subdivision F of Quinnington Borrowdale Estate within thirty days of the order, failing which the Sheriff or his lawful deputy or assistant deputies were authorised and directed to evict the respondents and all those claiming occupation through them.

4. The Registrar was ordered to reinstate title to the second, third and fourth appellants (first, second and third respondents in the present application).

In opposing the application, the respondents raised preliminary points touching on urgency, jurisdiction and res judicata.

This is an urgent chamber application for an order couched in the following terms:

“Pending the confirmation of the provisional order, an interim relief is granted on the following terms:

1. The sale by public auction of a certain piece of land called sub-division E of Stand number 452M Bellevue Township of sub-division A of Bellevue situate in the District of Bulawayo be and is hereby stayed pending the finalisation of this matter.”

The applicants approached this court on an urgent basis seeking the following interim relief;

“Pending the confirmation or discharge of this order that this order shall operate as a temporary order having the effect of:

(a) Interdicting 3^rd respondent from evicting 1^st and 2^nd applicants from Shop Number 19 Haddon & Sly Building, pursuant to a court order granted in favour of 1^st respondent against 2^nd respondent in the Magistrates' Court under case number 3532/16.

(b) Directing 3^rd respondent, if at the time that this order is granted or served, execution of the said warrant has been made in anyway, to ensure that the applicants are restored into the shop.”…,.

In L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C)…, CORBETT J…, said an applicant for an interim interdict must show:

(a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or, if not clear, is prima facie established though open to some doubt;

(b) That, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeded in establishing his right;

(c) That the balance of convenience favours the granting of interim relief; and

(d) That the applicant has no satisfactory remedy.”

See also Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S).

C. B. PREST, The Law and Practice of Interdicts, Juta 1993…, explains the significance of a prima facie right in an application for an interdict. He states;

“Interdicts are based upon rights, rights which in terms of the substantive law are sufficient to sustain a cause of action. Such right may arise out of contract, or a delict; it may be founded in the common law or on some or other statute; it may be a real right or a personal right. The applicant for an interlocutory interdict must show a right which is being infringed or which he apprehends will be infringed, and if he does not do so, the application must fail.

An applicant must establish 'some just right'. It must not be a mere moral right, it must be a strict legal right.”

This therefore is the threshold that must be crossed, and a failure so to do means that an applicant cannot succeed in his claim. The onus of proving such a prima facie right rests on the applicant. It must be proved on a balance of probabilities.

As regards the meaning of the words “prima facie case”, C. B. PREST, The Law and Practice of Interdicts, Juta 1993…, states;

“If the correct meaning, it is submitted is that an applicant is required to furnish proof which if uncontradicted and believed at the trial, would establish his right. The use of the phrase 'prima facie established though open to some doubt', however, indicates that more is required than merely to look at the allegations of the applicant, but something short of a weighing up of the probabilities of conflicting versions is required. What then is the approach of the court to be in the face of a dispute of fact on the papers before the court? The proper manner of approach is to take the facts set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to inherent probabilities, the applicant should, on those facts, obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant, he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt'.”…,.

In order to determine whether the applicant has made out a prima facie case, the court inquires into whether he has discharged the onus resting upon him by the affidavits placed before the court.

This is an application for stay of execution. The application is opposed.

On 18^th December 2015, the respondents caused summons to be issued against the applicant. The claims were defended. The applicant subsequently requested the respondents to supply further particulars. On 18^th January 2016 the respondents supplied the further particulars sought but the applicant insisted on further and better particulars. The respondents wrote to the applicant refusing to furnish the further and better particulars. The respondents proceeded to file a notice of intention to bar.

Despite protestations by the applicant, the respondents proceeded to effect the bar and applied for default judgement.

An application for rescission of judgment was filed under case number HC798/16. The matter has not been resolved.

On 12^th February 2016, the applicant, probably unaware of the bar, filed a chamber application to compel the respondents to supply the further and better particulars. On 10^th March 2016 the applicant proceeded to apply for the upliftment of the automatic bar. That matter is still outstanding and has not been argued.

It is contended, on behalf of the applicant, that the notice of intention to bar was issued and effected prematurely and therefore void ab initio and must be uplifted in terms of Order 12 Rule 84 of the High Court Rules, 1971. Rule 84 provides as follows:

“(1) A party who has been barred may –

(a) Make a chamber application to remove the bar;

(b) Make an oral application at the hearing, if any, of the action or suit concerned;

and the judge or court may allow the application on such terms as to costs and otherwise as he or if, as the case maybe, thinks fit.”

In an application for the upliftment of the bar, our courts require that the applicant must file an affidavit of merits and give good and sufficient reasons for the delay or failure to comply with the rules. The applicant must also disclose a bona fide defence on the merits.

It is clear from the provisions of Rule 83 of the High Court Rules that a litigant who has been barred is prohibited from being heard for any other purpose other than for the upliftment of the bar. The rule provides as follows:

“83. Whilst a bar is in operation –

(a) The registrar shall not accept for filing any pleading or other documents from the party barred; and

(b) The party barred shall not be permitted to appear personally or by legal practitioner in any subsequent pleadings in the action or suit; except for the purpose of applying for the removal of the bar.”

There can be no doubt that the applicant has no right of audience before the court for as long as the bar remains effective. This court is therefore not at liberty to determine the applicant's application to compel further and better particulars and/or application for rescission of judgment before the application for the upliftment of the automatic bar is determined.

A perusal of the record indicates that the applicant initially requested the further particulars on 14^th January 2016. The respondents consequently supplied the further particulars. The applicant deemed that there were inconsistencies in the amounts claimed by the respondents. In particular, the applicant requested an explanation of how the sum of $18,300= was arrived at. In view of the fact that the basis of the respondent's claim was payment of monies invested under an investment facility the particulars requested were of critical relevance.

The applicant contends that the conduct of the respondents amounts to a snatching of judgment, in that the respondents were fully aware that the applicants had every intention of defending the matter. The applicants were aware that an application for the uplifting of the bar had been filed but nevertheless proceeded to effect the bar and obtained default judgment on 16 February 2016.

The brief summary of the state of this matter is therefore as follows:

(a) Case number HC356/16

This is a chamber application wherein the applicant filed a chamber application to compel the respondents to file further and better particulars. The application was opposed and the matter remains pending. It has not been set down for hearing.

(b) Case number HC627/16

Upon becoming aware that the respondents had not withdrawn the notice of intention to bar but that, in fact, they had proceeded to effect the bar, the applicant filed another application for the upliftment of the bar. That application was also opposed and the matter remains pending.

(c) Case number HC781/16

The applicants became aware that the respondents had obtained default judgment, and, in the light of the fact that an application for the upliftment of the automatic bar had been opposed the applicant filed an application for default judgment. This application was also opposed and remains pending.

In spite of all the matters that are still pending and unresolved, the respondents have proceeded with execution. The applicant's property was attached and removal was set for the 7^th July 2016. The applicant argued that the application for stay of execution was merited in that if execution were to proceed, he would suffer irreparable harm. The applicant contends that the balance of convenience favours the granting of the application for stay of execution.

The respondents urge this court to reject the application for stay of execution on the grounds that the application is an abuse of court process and that there is need for finality in litigation.

It is common cause that the applicant was served with summons in the main action under case number HC3415/15.

For the sake of clarity, it is necessary to set out the basis of the claim as contained in the declaration.

The plaintiffs (respondents) are Lynette Chabata and Tererai Chabata. The defendant is reflected as MOB Capital (Pvt) Ltd, a company operating a micro-finance business based at 105 Kaufman House, R. G. Mugabe Way, Bulawayo.

On or about 3^rd January 2014, the plaintiffs placed the sum of $10,000= with the defendant under a mutually agreed investment scheme. The funds were to earn interest at the rate of 7.5% per month. On or about 7^th January 2014 the plaintiffs, utilizing funds acquired in their joint efforts placed the sum of US$42,900= with the defendant for investment through an electronic funds transfer into the defendant's CBZ account. Of the total in investment with it, the defendant paid out the sum of US$25,000=. The respondents contend that as at 30^th September 2015 the plaintiffs cancelled the investment scheme and demanded a refund of US$24,380= broken down as follows:

Capital - US$18 300

Interest - US$ 6 080

Total US$24 380

The applicants sought further particulars, amongst other things demanding to know how the interest was computed and to whom the sum of US$25,000= had been paid. The applicant was not satisfied with the further particulars furnished and sought further and better particulars.

This is the stage when problems commenced.

The respondents proceeded to file a notice of intention to bar and subsequently obtained default judgment. The issue for determination is whether in spite of the background facts detailed above this court should exercise it inherent jurisdiction and order a stay of execution.

I must point out that in an application of this nature, the court is not determining the application for rescission of judgment, neither is it considering the application for the upliftment of the automatic bar. The court is enjoined to consider whether there is good and sufficient cause to grant the stay of execution. To a large extent, the background facts assist the court in its decision whether this application for stay is without merit and designed to frustrate the other party. In the case of Zimbabwe Open University v Maguramombe & Another SC20-12, the court laid down the factors to be taken into account in considering the interim relief of stay of execution. The factors to be taken into account are now well settled. These are:

(i) Whether or not the party seeking the relief has a prima facie right to stay execution of the sale of the attached property.

(ii) Whether or not the applicant would suffer irreparable harm.

(iii) The balance of convenience.

See also the cases of Nzara v Tsanyau & Ors 2014 (1) ZLR 674 (H); Arches (Pvt) Ltd v Guthrie Holdings 1989 (1) ZLR 1523 (H).

Firstly, the applicant seems to me to have established that they have a prima facie right to stay execution.

It has not been contested that they are still matters pending in court to be resolved. The respondents have simply ignored all the pending matters and proceeded to execute. It is observed that the default judgment sought to be enforced was obtained in February 2016. No explanation has been advanced as to why the pending matters have not been resolved.

Secondly, there can be no doubt that the applicant stands to suffer irreparable harm if execution is not stayed. The balance of convenience, in all probability, favours the applicant. It cannot be argued that the application for stay has been filed for the sole purpose of delay and frustrating the course of justice.

In the result, the following order is made:

1. Pending the finalisation of the cases under HC627/16, HC798/16 and HC356/16, the execution of a default judgment granted by this court under case number HC3415/15 be and is hereby stayed.

2. Each party to bear its own costs.

The applicant contends that the conduct of the respondents amounts to a snatching of judgment, in that the respondents were fully aware that the applicants had every intention of defending the matter. The applicants were aware that an application for the uplifting of the bar had been filed but nevertheless proceeded to effect the bar and obtained default judgment on 16 February 2016.

The requirements of an interdict pendente lite were clearly laid out in the case of Blimas v Dardagan 1951 (1) SA 140. The court held that to obtain an interdict the applicant must satisfy the court either:

(a) That he has a clear right and that injury has been committed or reasonably apprehended.

(b) That he has a prima facie right and that irreparable injury will be caused to him if the interdict is not granted….,.

In Eriksen Motors (Welkom) v Protea Motors and Anor 1973 (3) SA 685 the learned judge stated that an interim interdict pendete lite is an extraordinary remedy within the discretion of the court and that in exercising its discretion the court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes known as the balance of convenience.

The applicant has approached this court on an urgent basis seeking the following relief -

“TERMS OF THE FINAL ORDER

1. That you show cause to the Honourable Court, if any, why a final order should not be granted in the following terms:

(a) That the use of the applicant's title deeds by the 1^st respondent, in transacting with the 2^nd respondent, without the consent of the applicant, be and is hereby declared unlawful.

(b) That the applicant's immovable property, being Stand 2169 Mabelreign Township measuring 981 square metres, be and is hereby released from execution.

INTERIM RELIEF SOUGHT

Pending determination of this matter, the applicant is granted the following relief:

(a) That the order to stay execution of Case No. HC5914/12 be and hereby granted pending finalization of rescission of judgment in case HC1122/15.

(b) Costs on a higher scale be borne by the 1^st and 2^nd respondent jointly and severally.

SERVICE OF PROVISIONAL ORDER

This provisional order may be served on the respondents or their legal practitioners by an employee of the applicant's legal practitioners or the Deputy Sheriff.”

At the hearing of the application, counsel for the first respondent raised two points in limine. The points were that -

(a) The applicant's matter is not urgent.

(b) The applicant's certificate of urgency is materially defective.

I will deal with the points one by one.

The applicants…,, pray for a temporary stay of execution on the basis that the impending sale in execution…, was, in their view, wrong at law and would invariably cause harm to be visited upon them in a manner that could not be rectified….,.

The issues which fall for determination in the present matter are:-

(a) Whether, or not, the present application is urgent; and, if it is

(b) Whether or not the applicants treated their case with the urgency which the matter deserved.

This urgent chamber application for a provisional interdict is anchored on an appeal filed with this court on 22 March 2018....,.

The law in relation to temporary interdicts is..., well settled. The requirements of an interdict are as follows;

(i) A prima facie right, even if it is open to some doubt;

(ii) A well-grounded apprehension of irreparable harm if the relief sought is not granted;

(iii) That the balance of convenience favours the granting of the interim interdict;

(iv) That there is no other satisfactory remedy;

(v) That there are reasonable prospects of success in the merits of the main case.

See Setlogelo v Setlogelo 1914 AD 221; Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Another 2000 (1) ZLR 234 (H).

The above requirements, in my view, are applied conjunctively and not disjunctively.

This is an application in terms of subsections 85(1)(a) and 85(1)(b) of the Constitution of Zimbabwe Amendment (No.20/2013) (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.

In their heads of argument, the applicants submit that they have abandoned paragraphs 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now 'fundamentally focused' on an infringement of the first applicant's constitutional right to freedom of movement, which is protected under section 66 of the Constitution.

The applicants accordingly seek the following relief:

1. A declaratur to the effect that the first applicant's fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents refusal to grant the second applicant entry into and residence in Zimbabwe; and

2. An order compelling the respondents to:

(i) Permit the second applicant entry into Zimbabwe; and

(ii) Grant the second applicant a 'spousal' residence permit.

The background to the matter is as follows:

The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter, sometime in August 2011, entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant's stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit, the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant.

During this period, the two applicants solemnized their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe.

This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a thirty day extension on his holiday visa whilst his application for a residence permit was being considered.

On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of section 14(1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to section 17 of the Immigration Act.

The second applicant chose the former option, and, on 2 June 2014, left for South Africa together with his wife.

Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the Prohibition Notice, which appeal was duly noted in the Magistrates Court, in terms of section 8 of the Immigration Act.

The Court, on 20 June 2014, ruled in favour of the second applicant and set aside the Prohibition Notice in question. The applicants were informed by their legal practitioners of this development, and, on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe.

Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent's officers, on the basis that he was still a prohibited person - despite the setting aside of the Prohibition Order.

The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent's officers. She proceeded, on 18 July 2014, to file an application before this Court, challenging the respondent's decision to declare the second applicant a prohibited person, and denying him entry into this country.

Before the matter was heard, on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.

On 25 February 2016, a citizen, by the name Rooney Kanyama (Kanyama), filed a Constitutional Court application wherein he sought the following order;

“IT IS DECALRED THAT:

1. The order of the Constitutional Court, granted under case number CCZ8/15 on the 28^th October 2015 was granted contrary to provisions of the Constitution and the law and violates, by that circumstance, applicant's right to protection of the law as set out under section 56(1) of the Constitution of Zimbabwe.

ACCORDINGLY, IT IS ORDERED THAT:

2. The order of the Constitutional Court granted under case number CC08-15 on the 28^th October 2015 be and is hereby set aside in its entirety.

3. There shall be no order as to costs.”

On the same day, the applicant filed the present application under a Certificate of Urgency. I arrived at the conclusion that the citizen's application was filed first and then the applicant's application filed later as the applicant's application places reliance on the application by Rooney Kanyama.

In the urgent chamber application, the applicant seeks, in the interim, the stay of the process for his possible removal from office which has been instituted by the first respondent. In the final, he seeks a declaratur to the effect that the process for his removal from office, commenced by the first respondent pursuant to its meeting on 11 February 2016, and communicated to him in terms of a letter dated 12 February 2016, is a nullity. He also seeks costs as against the first respondent.

What is being sought in the present case is an interim interdict. An interim interdict, which is also referred to as an interlocutory or a temporary interdict or an interdict pendente lite is one that is sought pending the outcome of proceedings between the parties, CILLIERS et al, HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa 5ed, Vol. 2…,. Its primary purpose is normally to preserve or restore the status quo pending the final determination of the rights of the parties. It does not impact upon or entail the final determination of such rights, see Radurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd 1997 (1) SA 646 (C). In the case of Winkelbauer & Winkelbauer v Minister of Economic Affairs 1995 (2) SA 570 (T)…, BOTHA J said:

“The purpose of interim relief pendent lite is to obviate an injustice to a party who prima facie has been (or believes on reasonable grounds that he is about to be) wronged, but who needs time to obtain redress through the due process of law.”

The requirements for an interim interdict to be granted are settled. An applicant for a temporary interdict will succeed if he or she establishes the following:

(a) That the right which forms the subject matter of the main action and that the applicant seeks to protect is clearly or prima facie established, even though open to some doubt;

(b) Where the right is only prima facie established, that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and she or he ultimately succeeds in establishing the right. This requirement is not necessary where a clear right is established;

(c) The balance of convenience favours the granting of interim relief; and

(d) The applicant has no other satisfactory remedy.

The principle that the existence of a right is a matter of substantive law and whether that right is clearly or only prima facie established is a question of evidence is one that has been accepted in many cases and requires no further discussion.

The evidence which is adduced by the applicant must establish, on a balance of probabilities, the existence of a right which is protectable at law….,.

The term injury, in the broad sense in which it is used in the context of an interdict includes any prejudice which may be suffered by an applicant as a consequence of the invasion of the right. The injury is not confined to bodily harm or one that is capable of pecuniary assessment or evaluation; see Minister of Law and Order, Bophuthatswana v Committee of the Church Summit of Bophuthatswana 1994 (3) SA 89 (B)…,.

The question of the absence of an alternative remedy must be understood in the context of the remedy envisaged by law. For it to qualify as an alternative remedy, it must:

(a) Be adequate, having regard to the circumstances of the matter;

(b) Be ordinary and reasonable;

(c) Be a legal remedy;

(d) Grant similar protection.

HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5ed…,.

This is an urgent chamber application for stay of execution in terms of Rule 73 of the Supreme Court Rules, 2018 as read with Rule 244 of the High Court Rules, 1971.

On 19 December 2018, the High Court handed down a judgment registering an arbitral award against the applicant. The judgment also dismissed an application by the applicant to set aside the arbitral award. The applicant became aware of the judgment on 29 January 2019 after the first respondent had caused the third respondent to attach its equipment and assets to satisfy the debt. On 31 January, the applicant's legal practitioners advised the first respondent's practitioners that they intended to appeal against the judgment and were accordingly filing an application for condonation and extension of time within which to note the appeal. In the same letter, the applicant inquired whether the first respondent was inclined to stay execution in light of the applicant's intention to appeal the judgment. Whilst the first respondent's practitioners responded to the letter, they did not advise on whether or not they were inclined to stay execution as requested. To avoid the attached property being removed, the applicants issued a security bond in terms of the High Court Rules.

The application for condonation was filed on 5 February 2019 and was duly served on the respondents. The applicant, once again, made inquiry of the first respondent as to whether or not it was inclined to stay execution. It gave the first respondent up to 8 February to respond. Instead of responding to the inquiry, the first respondent, on 11 February, caused further attachment of the applicant's property. On 13 February 2019, the applicant filed this application.

In the application, the applicant contends that the matter is urgent, that it has prospects of success in the application for condonation and that the balance of convenience favours the granting and not the denial of the interim protection that it seeks. On this basis, the applicant seeks an order staying execution pending the determination of its application for condonation and extension of time within which to note an appeal.

At the hearing of this application, it was common cause that the application for condonation and extension of time within which to note the appeal is now ready for hearing and is simply awaiting set down.

The application was opposed on four main grounds.

(i) Firstly, it was contended that the matter is not urgent;

(ii) Secondly, it was argued that the application was improperly before me;

(iii) The first respondent contended, thirdly, that the applicant's prospects of success in the application for condonation and extension of time to note the appeal are not bright; and

(iv) Lastly, it was argued that the balance of convenience favours the denial of the application.

It is convenient that I deal with this application on the basis of the four grounds of opposition that have been advanced by counsel for the first respondent but not in the order in which he presented them as the second ground goes towards jurisdiction and should be dealt with first.

An application for stay of execution pending the determination of some other process by the court is a hybrid application. It combines the factors that a court takes into account when considering an application for an interim interdict generally and the factors that a court considers when granting an indulgence in an exercise to control and protect its own proceedings. See Makaruse v Hide and Skins Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S) and TM Supermarkets (Private) Limited v Avondale Holdings (Private) Limited and Another SC37-17.

In both instances, the court must always bear in mind the balance of convenience, or, more importantly, where the interests of justice lie.

This is an urgent chamber application seeking the stay of execution of a High Court judgment pending an appeal noted under SC255/14. When this matter was set down before me, on 12 June 2014, I dismissed the application with costs and intimated to the parties that the reasons would follow in due course.

These are they.

An application pendete lite is an interlocutory application. It is one pending something, or a lite.

The applicants submitted that they were not in contempt of the order as they immediately filed an application for rescission of judgment. It was further argued that the Rules give the defendant a window period of one month to set aside a judgment granted in default and that the application for rescission suspended the order until the determination of the application.

This is a novel argument.

It is a settled position in our law that an application for rescission does not suspend an order of court. If that was the position, the procedure of an application for stay of execution would not have been necessary. Instead, there would have been a provision for an application for execution pending the determination of the application for rescission of judgment. We do not have such a procedure as an application for rescission does not suspend the order.

The applicants must have been aware of this position and this explains why they proceeded to file an application for stay of execution on 19 May 2009.

The applicant was employed by the first respondent. As part of his employment benefits, the applicant was allocated House Number 36 School Avenue, Noelvale, Zvishavane. Between 11 and 20 March 2011 the applicant deserted from work and was dismissed, after due process, on 27 March 2011. The applicant did not appeal against the dismissal which still stands to date. The first respondent considered the contract of employment effectively terminated thereby stripping the applicant of all rights that had accrued to him as a consequence of the employment relationship.

The applicant remained in occupation of the first respondent's property prompting the latter to issue summons for eviction on 23 August 2016. The applicant entered appearance to defend and filed his plea on 28 September 2016. On or about 31 August 2017, the first respondent filed an application for summary judgment under case number HC1101/17. A default judgment was subsequently granted against the applicant.

The first respondent obtained a warrant of ejectment and served it on the applicant's sister on 12 January 2018. The applicant then filed this application for stay of execution arguing that neither his legal practitioners nor his corresponding lawyers received the application for summary judgment. The relief he seeks is as follows;

“That pending the determination of this matter, the applicant is granted the following relief:

1. The warrant of ejectment issued on 12^th day of January 2018 be and is hereby stayed pending the determination and finalization of the application for rescission of summary judgment which will be filed within 5 days.

2. In the event that the applicant and all those claiming right through him have been evicted be restored possession of House Number 36 School Avenue, Noevale, Zvishavane pending the determination and finalization of the application for rescission of summary judgment.”

The applicant contended that the matter is urgent because he was facing ejectment in a matter of hours.

He claimed that the balance of convenience favours the granting of this application in that if the application for rescission is not granted, the first respondent will still be entitled to reclaim its house while if he is evicted before the determination of his application for rescission he will not be able to have possession of the house, because the first respondent intends to allocate it to a new tenant. Further, the applicant submitted that he will suffer irreparable harm if this application is not granted in that the first respondent owed him US$23,000= being salary arrears, and, if execution is not stayed, he will not have any recourse to the law because the first respondent is “immune to lawsuits” by virtue of the provisions of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:24].

The applicant also argued that he will suffer heavy prejudice if the warrant for ejectment is not stayed in that he has no alternative accommodation for his family that includes children who are attending school in Zvishavane.

He said he was surprised by the warrant of eviction because he had not been served with the application for summary judgment.

While admitting that according to the certificate of service filed by the first respondent, the application for summary judgment was served on one Edwin Mafa in the employ of his corresponding legal practitioners, he insisted that his lawyers told him that Edwin Mafa denied being served with the application. In this regard, he filed a supporting affidavit from his legal representative confirming that Edwin Mafa denied ever receiving the application for summary judgment. Surprisingly, the applicant omitted to file an affidavit from Edwin Mafa himself.

During argument, it was conceded that the applicant lost his right to continue to enjoy benefits after the termination of the contract of employment. It was nevertheless argued that his defence in the application for rescission would be that he is owed salary arrears by the first respondent who was served with this claim. He lamented the difficulty of suing the first respondent due to its status.

The first respondent opposed the application on the following grounds;

“(a) There is no accompanying urgency as to warrant the relief sought;

(b) There is no fear of an imminent harm and or fear of an injustice being done should the relief sought be denied.

(c) The applicant has not established that he has a clear or prima facie right that would entitle him to get the relief of stay of execution against an order for his eviction from a company house that he is occupying following termination of his employment contract on March 2011.

(d) Applicant has not shown that the balance of convenience is in favour of granting the remedy.”

As indicated above, the applicant has approached this court for a stay of execution pending the filing and determination for rescission of the default judgment granted under HC1101/17.

The principles that a court must have regard to in an application for stay of execution are akin to those considered when deciding whether or not to grant leave to execute 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 regate 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.”

What must be interrogated in this matter are the applicant's bona fides in bringing an application for rescission of a default judgment.

In order to show good and sufficient cause under Rule 63 of the High Court Rules 1971, for rescission, an applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment and the prospects of success on the merits. These factors are considered cumulatively and not individually. See Earth Moving and Construction Company (Pvt) Ltd v Gurupira and Others 2014 (1) ZLR 304 (H); Roland and Another v McDonnell 1986 (2) ZLR 216 (S); Stockil v Griffs 1992 (1) ZLR 172 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S).

Let me deal first with the reasonableness of the applicant's explanation for the default.

It is noteworthy that he has given two conflicting explanations;

(a) Firstly, he contended that “as such neither my legal practitioner nor any corresponding lawyers received the application for summary judgment.” See paragraph 17 of the applicant's founding affidavit.

(b) Secondly, it was argued that Edwin Mafu was served with the application, but, instead of sending it to the applicant's lawyers, he simply sat on it.

This was despite the applicant's lawyers having been furnished with a copy of the certificate of service with a stamp from Sansole and Senda, the corresponding legal practitioners showing that the application for summary judgment had been served on one Edwin Mafu on 20 April 2017. The applicant did not bother to file Edwin Mafu's affidavit with this application. Also, the applicant did not bother to peruse the file or contact the Assistant Registrar between August 2017 and January 2018. In the absence of a supporting affidavit from Edwin Mafu, this court is left to speculate on what happened between Mutendi, Mudisi and Partners and Sansole and Senda.

In the result, the explanation remains somewhat murky and unreasonable.

As regards the applicant's bona fides, the fact that he conceded that he does not have any residual right to occupy the house after the termination of the contract of employment demonstrates clearly that his intended application is mala fide.

This is especially so if one has regard to the applicant's contention that he is owed US$23,000 in salary arrears. What is surprising is that the applicant has not placed any evidence of his efforts to recover this money in the past seven (7) years. In any event, this fact does not constitute a defence…,.

An examination of the merits of this application, coupled with any prospects of success of the application for rescission, shows that the applicant is motivated by a desire to either buy time or harass the first respondent. The applicant has not established that he has a clear or prima facie right that permits him to continue holding on to the first respondent's property following the termination of the contract of employment.

For starters, section 12(6) of the Labour Act [Chapter 28:01] clearly supports the first respondent's position. It states;

“Whenever an employee has been provided with accommodation, directly or indirectly, by his employer, the employee shall not be required to vacate the accommodation before the expiry of a period of one month after the period of notice specified in terms of subsection (4) or (5).”

The Collective Bargaining Agreement Mining Industry (General Conditions) Statutory Instrument 152/90 also makes provision for the period within which an ex-employee is required to vacate premises after termination of the employment contract.

Section 25(2)(a)(b) of the Collective Bargaining Agreement Mining Industry (General Conditions), S.I.152 of 1990 provides;

“An employee who is in occupation of premises belonging to his employer shall;

If he occupies married quarters and his employment is terminated he shall be allowed a reasonable period of not less than 21 days from the date of termination of employment to vacate such premises.”

On this basis, the applicant was required, by law, to vacate the first respondent's premises within the stipulated period after the termination of his employment contract.

The fact that the applicant was owed arrear salaries is not a valid reason to continue residing in the company house after his contract had been terminated.

Chisipite School Trust (Pvt) Ltd v Clark 1992 (2) ZLR 324; Arundel School Trust v Pettingrea 2014 (1) ZLR 596; Jakazi and Another v Church of the Province of Central African and Others 2010 (1) ZLR 335 (H); Hamtex Investments (Pvt) Ltd v King 2012 (2) ZLR 334.

On the facts of this case, it cannot be said that the applicant would suffer an injustice or irreparable harm if the stay were not granted. The onus is on the applicant to prove irreparable harm that would have justified the granting of the stay of execution. In Chibanda v King 1985 (1) ZLR 116 DUMBUTHSENA AJP held that;

“In an application for stay of execution of the judgment of the court, it is not enough for the applicant merely to allege hardship. He must satisfy the court that he may suffer irreparable harm or prejudice if execution is granted…,.; it must also be borne in mind that if the court were to extend mercy, it would be doing it at the expense of a litigant who has already established, in court, his right and title to what is being claimed. Such mercy should rather be sought in the action itself before judgment is given - not afterwards.”

It is trite that the power to grant stay of execution is a common law exercise of the power that inheres in the court. This discretion is very wide, but, the main guiding principle for the court, in determining such an application, is to grant stay where real and substantial justice requires such a stay, or, conversely, where injustice would otherwise be done – see Mungwambi v Ajanta Properties (Pvt) Ltd HH771-08.

In casu, the applicant cannot be said to suffer injustice if the application is declined in that his eviction will not extinguish his claim for arrear salaries. There is therefore no harm to talk about, never mind irreparable harm. The applicant has got no defence against the claim for summary judgment that was granted. Also, his proposed application for rescission has no legal basis as it is anchored on blatant untruths and misrepresentations of the circumstances leading to the default judgment.

The applicant has other available and satisfactory remedies.

He has stated, in unequivocal terms, that the reason he is refusing to vacate the company house is the fact that he has not been paid his arrear salaries. Although he has filed no proof of such liability on the part of the first respondent, he is at liberty to sue the first respondent for the payment of any such claim. He does not have to remain in the house in order to successfully sue the first respondent. All he has to do is to comply with the mandatory provisions of section 6(b) as read with section 18(e) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:24].

In my view, the balance of convenience would best be served if the applicant is denied the relief he seeks. This is so because the house was allocated to the applicant as an employment benefit during the tenure of his employment contract. That contract was terminated on 30 March 2011 leaving no residual right or legal entitlement on the part of the applicant to the continued free occupation of that house. His continued free occupation of the house will greatly prejudice the first respondent in lost rentals. Already, the first respondent has lost US$26,640= in unpaid rentals over the past six (6) years of the applicant's unlawful occupation of the property. It is common cause that during these six (6) years, the applicant did not render any service to the first respondent.

On the other hand, if the application is dismissed, the applicant will simply pursue his claim against the first respondent. It is laughable, for lack of a better word, to suggest that the applicant cannot secure alternative accommodation in Zvishavane.

All in all, I associate myself with the comments by DUMBUTHSENA J…, in S v Mcnal 1986 (2) ZLR 280 where he said, while considering whether a party should be punished for the negligence of his legal practitioners;

“In my view, clients should, in such cases, suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Salogee and Another v Minister of Community DVT supra at 141 C- E when he said;

'There is a limit beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this court. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation on which the failure to comply with the Rules of this court was due to neglect on the part of the legal practitioners. The attorney, after all, is the representative whom the litigant has chosen for himself and there is little or no reason why, in return for condonation of a failure to comply with a Rule of court, the litigant should be absolved from the normal consequences of such a relationship no matter what the circumstances of the failure are.'”

In the present case, the applicant's legal practitioners negligently failed to comply with a peremptory provision of the Rules. In my view, it is not an acceptable explanation for a legal practitioner to come to court, nine months after the dies induciae has elapsed, and simply say that they did not see the court application for summary judgment contrary to hard evidence showing service and receipt of such an application. Such an explanation is an insult to the intelligence of the court, making it more difficult for this court to be satisfied of the applicant's good faith.

In the result, the application for stay of execution is hereby dismissed with costs.