MATHONSI J: The applicant seeks an order
for stay of execution of a judgment granted by the Magistrates Court sitting at
Mvuma in Case Number GL 16/13 pending the hearing and determination of a review
application he has launched in this court in HC 4191/14 wherein he protests
that the magistrate's decision to allow the first respondent to execute pending
appeal is reviewable by reason of procedural irregularities and bias.
The applicant is the chairperson of a co-operative comprising of 4 members
namely himself, Calisto Tsanyau, Simpson Mangwanda and Tafirenyika Dzvarai
which was engaged in the business of fattening cattle for sale. He was
sued by the other members of the co-operative for delivery of 5 head of cattle
or their value of $5 375-00 in the magistrates court of Mvuma. He
contested the claim and says that during the trial the magistrate denied him an
opportunity to call a witness because “she had too many cases to handle” after
which the matter was decided against him.
The applicant noted an appeal to this court against the decision of the
magistrates court but not to be outdone, the first respondent made an
application for leave to executive pending appeal. The magistrate granted
leave on 8 May 2014. Unhappy with that outcome, especially cognisant of
the procedural improprieties which occurred during the trial and what he deemed
to be the bias of the magistrate against him, the applicant brought an
application for review in the court.
Unperturbed and determined to reach the land of milk and honey, the first
respondent has issued a writ of execution against the applicant's property and
instructed the messenger of court to proceed against the applicant's
property. Sensing danger and impoverishment, the applicant has now
approached this court for a stay of execution aforesaid.
It is not clear what the trial magistrate considered when she granted leave to
executive pending appeal. What the court has regards to in determining
such an application was summarised by MAKARAU JP (as she then was) in Old
Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH
39/07 (unreported) as:
“The position as stated in the
decided cases then appears to me to be as follows:
1.
An appellant has an absolute right to appeal and to test the correctness of the
decision of the lower court before he or she is called upon to satisfy the
judgment appealed against.
2.
Execution of the judgment of the lower court before the determination of the
appeal will negate the absolute right that the appellant has and is generally
not permissible.
3.
Where, however, the appellant brings the appeal with no bona fide
intention of testing the correctness of the decision of the lower court, but is
motivated by a desire to either buy time or harass the successful party, the
court, in its discretion, may allow the successful party to execute the
judgment notwithstanding the absolute right to appeal vesting in the
appellant.
4.
In exercising its discretion, the court has regard to the considerations
suggested by CORBETT JA in South Cape Corporation (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 prospect of success on appeal especially
where the whole object of the appeal is defeated if execution were to
proceed. (See Wood N.O. vEdwards & Anor 1966
RLR 335).”
See also Dabengwa & Anor v Minister of Home Affairs 1982
(1) ZLR 223 (H) at 225; Arches (Pvt) Ltd v Guthrie Holdings (Pvt)
Ltd 1989 (1) ZLR 152 (H) at 155; Marume v Gwarada & Ors
HH 92/13.
The applicant has raised very pertinent issues concerning the conduct of the
trial which require interrogation. He has also questioned how he
could be ordered to pay to the first respondent the whole amount, when he was
also a member of the co-operative entitled to a share of the proceeds from the
sale of the cattle. In my view it cannot be said that his appeal is
frivolous or vexatious. Nor that he has launched the appeal to harass the
first respondent.
Now that an application challenging the propriety of the decision granting
leave to appeal has been made, it cannot be said that such application does not
deserve consideration especially against the background of an appeal that
appears to deserve its day in court. The applicant has an absolute right
of appeal and I am not satisfied that the trial magistrate property exercised
her discretion in effectively denying him the right of appeal by authorising
execution.
Ms Nyathi for the first respondent submitted that the matter is not
urgent at all, this being self- created urgency because the applicant delayed
in approaching this court by about 18 days. To my mind that argument is
not sustainable at all because there was no inordinate delay in the approach to
the court. I, therefore, dismiss that argument.
On the merits of the matter, Ms Nyathi did not advance any basis for
denying the applicant his absolute right of appeal, content to say that the
trial magistrate was correct in arriving at that decision because the other
members of the co-operative had been prejudiced.
Considering that an interim order for a stay of execution presents the
applicant with a window period to pursue a remedy available to him in this
court, I am of the view that he should be allowed that opportunity. It
has not been shown that the balance of convenience favours the first
respondent. Neither has it been suggested that all the considerations set
out in the authorities on applications for leave were indeed taken into account
given that the magistrate only gave an order with no reasons.
In the circumstances, I am satisfied that the applicant has made out a case for
the relief sought. Accordingly, I grant the provisional order in terms of
the amended draft order.
Bherebende Law Chambers,Applicant's
Legal Practitioners
Coghlan,
Welsh & Guest,1st Respondent's Legal
Practitioners
