MAFUSIRE
J: This was an application
for leave to execute pending appeal. The background was this.
In April 2011 the applicant sued
a company called Wedzera Petroleum [Private] Limited, as the
principal debtor, jointly with the respondent, as guarantor, for
payment of an amount in the sum of $847,847-65, plus interest and
costs. The claim arose out of petroleum products sold and delivered
by the applicant to the principal debtor in 2010.
Both the principal debtor and the
respondent contested the claim, but on different premises. At the
trial, the principal debtor was in default. At applicant's instance,
I entered a default judgment. Its defence was patently bogus anyway.
On 15 April 2016, following a
fiercely contested trial, I entered judgment for the plaintiff,
against the respondent, in the amount claimed. Five days later, the
respondent appealed. Four months after the respondent's appeal, the
applicant brought this application. Its major basis was that the
appeal was a ploy to buy time and stave off the day of payment as it
had no prospects of success.
The respondent vigorously opposed
the application. Among other things, it cited the delay of four
months, and claimed the application was an afterthought. Pointing to
some perceived misdirection in my judgment, the respondent maintained
its appeal had bright prospects of success. It was argued the
applicant would suffer no prejudice if leave was refused, given that
it had waited since 2010. It could wait some more. The appeal was set
to be determined shortly.
At the time of the respondent's
notice of opposition, the record of appeal had since been prepared.
The parties had since been called upon by the Registrar of the
Supreme Court to file heads of argument.
In the present application, the
applicant filed its answering affidavit and heads of argument some
six months after the respondent's notice of opposition. It was
explained the delay was occasioned by the fact that the applicant's
principal attorneys were based in South Africa; that instructions had
to be received and conveyed at every material stage of development,
and that there had been a delay in the settlement of counsel's fees
for the trial.
At the hearing, the parties
advised that the Supreme Court had since set down the appeal for
hearing on 23 May 2017. That was exactly a month away. For that
reason, the respondent pressed for the removal of the application
from the roll to avoid inconveniencing not only the parties, but also
the two courts as well.
Mr Fitches,
for the applicant, said he had no instructions to do otherwise than
press on with the application. He argued, inter alia, that given the
general trend at the Supreme Court where many a notice of appeal are
dismissed for failure to scrupulously adhere to the procedural
requirements, there was no guarantee that the respondent's notice and
grounds of appeal would withstand stringent scrutiny. The appeal
might not be heard on the merits.
Furthermore, Mr
Fitches' argument
continued, even if the appeal was heard on the merits, it was more
than likely that judgment would be reserved for months on end. As
such, the balance of convenience favoured that the application for
leave to execute pending appeal be proceeded with and be determined
because the applicant had been kept out of its money since 2010.
Mr Moyo,
for the respondent, countered by saying Mr
Fitches' argument was
mere conjecture. It was not unusual for the Supreme Court to deliver
an order and/or its judgment ex tempore.
There was further argument on the
merits and demerits of the application for leave to execute pending
appeal. I reserved judgment. This now is my judgment.
An application for leave to
execute pending appeal is necessitated by the fact that an appeal
automatically suspends the execution of the judgment or decision
appealed against: see Chematron
Products [Pvt] Ltd v
Tenda Transport [Pvt]
Ltd & Anor 2013
[2] ZLR 365 [H]. This is a common-law rule of practice. Its rationale
is to prevent an irreparable damage being caused to an appellant.
But, in my view, an irreparable
damage can equally be caused to the successful party by the noting of
the appeal and the concomitant automatic stay of execution. Among
other things, he cannot immediately enjoy the fruits of his success
in the court of first instance. The rule has received some criticism
and has prompted calls for its reversal: see Econet
[Pvt] Ltd
v Telecel
Zimbabwe [Pvt] Ltd 1998
[1] ZLR 149 [H], and Chemafron
Products [supra].
The application for leave to
execute pending appeal is premised on the principle that the court
has an inherent power to control its own process. Thus, in the
exercise of its wide discretion, it can order a stay of execution of
its judgment. But it can also direct that the judgment be carried
into execution. The overriding principle is real and substantial
justice: see Santam
Insurance Company Limited
v Paget
[2] 1981 ZLR 132, at pp 134 — 135.
In
an application for leave to execute pending appeal, the court
considers the following factors cumulatively:
1. The preponderance of equities;
that is to say the potentiality of irreparable harm and prejudice to
the applicant if leave to execute is granted, or the potentiality of
irreparable harm and prejudice to the respondent on appeal if leave
to execute is refused;
2. The prospects of success of
the appeal, whether the appeal is frivolous or vexatious or has been
noted, not with the genuine intention of correcting a perceived
wrong, but merely in order to buy time;
3. If the competing interests are
equal, then the balance of hardship to either party;
See Zaduck v Zaduck
[2] 1965 RLR 635 [EGD]; 1966 [1] SA 550 [SR]; Graham
v Graham
1950 [l] SA 655 [T];
South Cape Corporation
v Engineering
Management Services
1977 [3] SA 534; Fox &
Carney (Pvt) Ltd v
Carthew Gabriel
[2] 1977 [4] SA 970 [R]; Arches
[Pvt] Ltd v Guthrie
Holdings [Pvt] Ltd
1989 [1] ZLR 152 [H]; ZDECO
[Pvt] Ltd Commercial
Carriers College
[1980] [Pvt] Ltd 1991 [2] ZLR 61 [H]; Econet
[Pvt] Ltd v Telecel
Zimbabwe [Pvt] Ltd
1998 [1] ZLR 149 [H];
But I should add that the balance
of convenience to both the parties and the courts should also be an
important consideration in an application of this nature.
Each case depends on its own
facts. Some factors may assume greater or lesser importance in some
cases than do others in other cases. In my view, a decision either
way will inevitably prejudice the losing party. It may just be the
degree of prejudice that may be comparatively different. Invariably,
the decision whether or not to grant the application turns on the
relative strength or weakness of the appeal.
In this case, much energy was
expended in weighing the respondent's prospects of success on appeal.
That necessarily entailed ploughing substantially the same field as
done at the trial.
However, given that the appeal is
set to be argued only in a month's time, I have considered it more
prudent and more expedient and more practical to allow the appeal to
be heard without upsetting the status quo. This will avoid a
potentially embarrassing situation where, for example, being
satisfied that the respondent's appeal is unmeritorious and therefore
doomed to fail, I could grant the leave to execute, only for my
judgment in the trial to be overturned in a month's time.
One of Mr
Fitches' arguments was
that even after the Supreme Court has heard the appeal, it might well
reserve judgment for months on end, resulting in the applicant
continuing to suffer prejudice in spite of its success at the trial.
But there are two answers to
this.
This was mere speculation. The
Supreme Court could well pronounce its ruling ex tempore.
Furthermore, an application for leave to execute pending appeal is
concerned with the interim period between the noting of the appeal
and the hearing of it. The application is largely informed by the
inordinate delays that are often associated with getting an appeal
heard. As Mr Moyo
argued, once the appeal is set down and heard, it is now the Supreme
Court, not this court, that is seized with the matter. Otherwise, the
logical extension of Mr
Fitches' argument
would be that an application of this nature could be mounted even
after the Supreme Court has heard the appeal for as long as its
judgment remains outstanding.
I do not think that this can be
done.
Thus, in my view, the balance of
convenience decides this matter. As such, there is no need to
consider the other requirements for leave to execute pending appeal.
Although in their papers both
parties sought the costs of this application, at the hearing none of
them persisted. However, none of them expressly abandoned them
either. Mr Moyo
merely prayed for the withdrawal of the application. Mr
Fitches said he had no
instructions to do otherwise than press on with it.
The general rule is that costs
follow the event. The loser pays the winner's costs. However, it is
also the rule that costs are entirely in the court's discretion. The
discretion is exercised judiciously and not whimsically: see Graham
v Odendaal
1972 [2] SA 611 [AD]; and Kruger
Brothers & Wassermen
v Ruskin
1918 AD 63, at p 65 - 67.
Given that the disposal of this
matter has hinged on what is largely a neutral factor which was not
the bulwark of the argument by either side, namely, the imminent
hearing of the appeal, I consider it fair and reasonable to order
that each party should bear their own costs.
In the premises the matter is
removed from the roll with each party to bear their own costs.
3 May 2017
Wintertons, applicant's legal practitioners
Kantor & Immerman, respondent's legal practitioners
