In this country, unless otherwise provided, the noting of
an appeal automatically suspends the execution of the judgment or decision
appealed against: Wood NO v Edwards Anor 1966 RLR 336 (G)
(per LEWIS J). It is the same in South Africa: Oliphant's
Tin 'B' Syndicate v de Jager 1912 AD 474…,. ; ...
In this country, unless otherwise provided, the noting of
an appeal automatically suspends the execution of the judgment or decision
appealed against: Wood NO v Edwards & Anor 1966 RLR 336 (G)
(per LEWIS J). It is the same in South Africa: Oliphant's
Tin 'B' Syndicate v de Jager 1912 AD 474…,. ; Verkouteren v Savage 1919 AD 183….,.
; Malan v Tollekin 1931 CPD 214; Reid v Godart 1938 AD 511; Levin v Felt and Tweeds Limited
1951 (1) 213….,. ; and Geffen v Strand Motors (Private) Limited
1962 (3) SA 62.
The party that succeeds in the court of first instance
has to seek the leave of the court to execute the judgment whilst the appeal is
pending. This is a common law rule of practice. In Levin v Felt and Tweeds Limited
1951 (1) 213 VAN WINSEN AJ…., explained the rule as follows:
“The common law is clear that a notice of appeal, save in
certain exceptional cases, automatically suspends the execution of the judgment
appealed against. No application is necessary to ensure this result. If the
party who succeeds in the judgment against which the notice of appeal has been
lodged wishes to execute upon the judgment, then it is he who is required to
make an application to do so.”
The rationale for the common law rule is that there is
need to prevent an irreparable damage from being caused to the appellant. In Reid v Godart 1938 AD 511 De VILLIERS JA said…,:
“Now, by Roman-Dutch Law, the execution of all judgments
is suspended upon the noting of an appeal; that is to say, the judgment cannot
be carried out; and no effect can be given thereto, whether the judgment be one
for money (on which a writ can be issued and levy made) or for any other thing
or any form of relief granted by the court appealed from….,. The foundation of
the common-law rule as to suspension of a judgment on the noting of an appeal
is to prevent irreparable damage from being done to the intending appellant,
whether such damage be done by a levy, under a writ, or by the execution in any
other manner appropriate to the nature of the judgment appealed from.”
CORBETT JA put it as follows in South Cape Corporation v
Engineering Management Services1977 (3)
SA 534 (A)…,.:
“…, it is today the accepted common law rule of practice
in our court that generally the execution of a judgment is automatically
suspended upon the noting of an appeal…,. The purpose of the rule is to prevent
irreparable damage from being done to the intended appellant.”
If the purpose of the rule is to prevent an irreparable
damage from being caused to the intended appellant, the automatic suspension of
the judgment or decision appealed against may equally cause an irreparable
injustice or harm to the respondent who would have been the successful party.
It is him who is prevented from enjoying the fruits of his success in the court
of first instance. SMITH J criticised the rule in Econet (Pvt)
Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC). He noted that the
position was the other way round in England. In England an appeal does not
automatically suspend the execution of the judgment appealed against. The
intending appellant must apply and show special circumstances for the execution
to be stayed. The rationale for the English position is that a successful
litigant should not be deprived of the fruits of his litigation: The Annot Lyle (1886) 11 PD 114 (CA) and Monk v Bartram [1891] 1 QB 346.
In the Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC)
case SMITH J proposed a change in our law. At p157 he stated as follows:
“It seems to me that there would be merit in changing our
law on this aspect so as to follow the English system. If a party has obtained
a judgment or order from a court of first instance, then, prima facie, that party should be entitled to the benefit
of that judgment or order. It should be for the unsuccessful party to have to
seek leave for the judgment to be suspended if an appeal is noted. That party
should be the one required to show that special circumstances exist which
justify the suspension sought. The system that prevails in Zimbabwe must have
the effect of encouraging some debtors or persons with doubtful claims to
appeal simply in order to play for time, as in this case. In other words, since
an appeal automatically suspends execution, a debtor who wants to delay may as
well appeal even if he knows the appeal is hopeless or even if he knows that he
will abandon it. At least it will buy him time.”
I agree with the learned judge.
Our rule, in a way, encourages an abuse of the court
process. In practice, a party that loses the first round in the court of first
instance is less likely to want to press for the expeditious determination of
the appeal - especially as the outcome is uncertain. Thus, given the inevitable
and often inordinate delays experienced in the appeal process, the appellant is
often content to let matters drag on and in the process frustrate the
respondent who was the successful party. The respondent has to wait patiently
before he can enjoy the fruits of his success. The situation can be quite
desperate in eviction cases. Where the landlord obtains an order for the
ejectment of the tenant from the rented premises for which the tenant is not
paying rent and the tenant appeals the order; the landlord can be stuck with
the intransigent tenant for months on end, even years, unless he obtains leave
to execute.
SMITH J noted with interest that the situation obtaining
in the English legal system has been adopted in Zimbabwe in maintenance cases.
In terms of section 27(3) of the Maintenance Act [Chapter 5:09] the noting of
an appeal against a decision of a Maintenance Court does not, whilst the appeal
is pending, suspend the decision appealed against unless the Maintenance Court,
on application, directs otherwise. I too note with interest that the English
position has also been extended to labour matters. The Labour Act [Chapter
28:01], in different sections, provides for appeals to the Labour Court and for
appeals to the Supreme Court. Section 92E of the Labour Act [Chapter 28:01], a
2005 amendment, then provides that an appeal in terms of that Act shall not
have the effect of suspending the determination or decision appealed against.
The Labour Court is empowered, on application, to make interim determinations
on matters pending before it on appeal. In practice, these include applications
for stay of execution pending appeal. SMITH J, in the Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC) case concluded by
recommending the wholesale adoption of the English position. At p157 of his
judgment he said:
“I would recommend that consideration be given to
amending the law insofar as it provides for the automatic suspension of the
execution of any judgment or order granted by the High Court or the Magistrates
Court where an appeal is noted.”
I support such recommendation.
The present application is a typical application for
leave to execute pending appeal. There was a trial in 2006. The applicant was
the plaintiff. The first respondent was the defendant. The applicant sought
specific performance. It said it had bought a property from the first
respondent. It said it had paid the agreed purchase price. The first respondent
contested the claim. It said there had never been any valid agreement between
the parties or that if there had been one then such agreement had been
cancelled because of a breach by the applicant. At the conclusion of the trial
this court, BERE J, inter alia, granted
the order for specific performance but reserved his reasons. It was only three
years later, in February 2012, that those reasons were made available.
Upon receipt of the reasons for judgment, the first
respondent appealed to the Supreme Court. It had applied to the Supreme Court
for the condonation of the late noting of the appeal. Although neither the
application for condonation nor the order of the Supreme Court was placed
before me it was common cause that condonation had been granted.
Slightly over a month after the first respondent had
noted the appeal, the applicant applied for leave to execute.
The applicant sought the same order for specific
performance as it had sought at the trial, namely, that the first respondent
should be ordered to transfer the property in question to it failing which the
Sheriff for this court, or his lawful Deputy, should be authorised and
empowered to do so. The applicant based its application on the ground that it
continued to suffer considerable prejudice by not having the property registered
in its name when it could mortgage it to raise finance for its business
operations. The applicant also attacked the propriety of the first respondent's
appeal. It said the appeal was frivolous and vexatious, a ploy to buy time and
one simply meant to harass the applicant because it had no prospects of
success.
On the other hand, the first respondent opposed the
application. It relied chiefly on its grounds of appeal. They were as follows:
(1) That the learned judge had erred by holding that the
applicant had proved its case on a balance of probabilities;
(2) That no due weight had been placed on the fact that
the applicant had breached the terms of the original Agreement of Sale between
the parties;
(3) That no due weight had been placed on the fact that
there had been no valid and binding Agreement of Sale between the parties;
(4) That the court had erred by not taking due cognizance
of the fact that there had been no resolution by the respective boards of the
parties authorising the sale of the property.
On the question of the lack of merit of the appeal the
first respondent argued, among other things, that the Supreme Court had granted
condonation for the late noting of the appeal on the same facts and that
therefore that court must have accepted that the appeal had prospects of
success….,.
Both parties were alive to the requirements for an
application for leave to execute as they not only dealt with them in the
affidavits but also in argument.
The court has an inherent power to control its own
process. Thus, in the exercise of its wide discretion, it can order the stay of
execution of its judgment or order that the judgment be carried into execution.
The court strives to achieve real and substantial justice. In Santam Insurance Company Limited v Paget (2) 1981 ZLR 132 GUBBAY J…, stated as follows…,:
“As observed by GOLDIN, J, as he then was, in Cohen v Cohen (1)
1979 R.L.R. 184 (G.D.); 1979 (3) S.A. 420 (R.) at 423 B – C, the court enjoys
an inherent power, subject to such rules as there are, to control its own
process. It may, therefore, in the execution of a wide discretion, stay the use
of its process of execution where real and substantial justice so demands. See
also Graham v Graham
1950 (1) S.A. 655 (T.) at 658. The onus rests on the party claiming this type
of relief to satisfy the court that injustice would otherwise be caused to him
or, to express the proposition in a different form, of the potentiality of his
suffering irreparable harm or prejudice.”
In an application for leave to execute pending an appeal
the court considers the following factors:
(a) 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;
(b) 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;
(c) If the competing interests are equal, then the
balance of hardship to either party;
See Zaduck v Zaduck (2) 1965 RLR
635 (GD); 1966 (1) SA 550 (SR); Graham v Graham 1950 (1) S.A. 655 (T.); South Cape
Corporation v Engineering Management Services 1977 (3) SA 534 (A); 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 v Commercial Carriers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (H); Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC).
I now turn to consider each of the above requirements in
relation to the facts of this matter.
(i) PREPONDERANCE
OF THE EQUITIES
The applicant's position was that the first respondent
had both the money and the property. It said it was neither unable to develop
the property nor to utilize it for raising mortgage finance because it was
still registered in the first respondent's name.
On the other hand, the first respondent argued that it
would complicate matters if, in the meantime, the property was to be
transferred to the applicant. The applicant would in all probability mortgage
the property but only to have the situation unscrambled again should the appeal
succeed. The first respondent put it this way in its heads of argument:
“Prejudice will be occasioned on the part of Respondent
(appellant) if leave to execute is granted because if an innocent third party
acquires the property or developments are effected on the property then this
will complicate the whole case.”
The first respondent also submitted that ever since the
disputed transaction it had refrained from transferring or selling the property
to any other person or to encumber it in any way and he undertook to keep the
situation like that until the appeal was determined.
Whilst the applicant was able to explain prejudice to
itself directly if execution was not granted and the status quo remained, the first
respondent's concern was only in respect of potential third parties to whom the
property might potentially be sold or mortgaged by the applicant should it get
transfer whilst the appeal was pending. On this score, I consider that a
preponderance of the equities favour the applicant. However, I cannot identify
such harm to either party as would be irreparable should execution pending
appeal be granted or refused.
(ii) THE PROSPECTS OF SUCCESS
ON APPEAL
Counsel for the first respondent argued, strenuously,
that the fact that the Supreme Court had granted the first respondent's
application for condonation, in which it necessarily had to deal with its
prospects of success, must mean that the superior court had been satisfied with
the merits of the appeal. However, I have considered it quite unsafe to rely on
this argument. There was nothing placed before me to show what material had
been placed before the Supreme Court for the condonation application. The
Supreme Court judgment, if any, was not produced either. It would be
presumptuous to hold as fact that the Supreme Court was satisfied that the
appeal had prospects of success.
I have carefully analysed the judgment of BERE J which
the first respondent has appealed against. In ground no. 2 of its notice of
appeal the first respondent refers to a breach of the agreement by the
applicant. However, I consider that such a breach, if indeed there was, would
have had no bearing on the outcome of the case. The breach would have been an
immaterial factor. Whatever initial agreement there had been between the
parties it had undoubtedly been novated subsequently. A new agreement had come
into being. The applicant had paid the purchase price in terms of the new
agreement. The first respondent's own lawyers, evidently upon instructions from
the first respondent itself, and evidently upon being satisfied of the payments
by the applicant, had not only tendered transfer of the property to the
applicant and had not only raised a pro forma invoice for the transfer fees,
but had also gone to actually receipt the payment. That was the most telling
piece of evidence which was common cause and which tilted the scales of
probabilities heavily in favour of the applicant. I do not see the appeal court
upsetting this finding.
The first respondent's third ground of appeal is also
without merit. From the analysis of the evidence by the trial judge the
conclusion could not have been anything other than that there had been a valid
agreement between the parties that had been successfully consummated. It was
manifestly an afterthought that the first respondent was trying to shift the
goal posts on the question of interest. It is quite evident that the first
respondent had wanted to pass onto the applicant the whopping rate of interest
of 600% which it was allegedly being charged by its own bank but in an
unrelated transaction. It was undoubtedly the applicant's refusal to accept
this rate of interest, well after it had paid the purchase price in full that
the first respondent had then turned around and had refused to pass transfer,
alleging a breach of the agreement by the applicant. Again, I do not see the
appeal court upsetting the trial judge's findings on this aspect….,.
I am satisfied that the appeal has no prospects of
success. I see no justification for the applicant to wait for the determination
of the appeal before it can enjoy the fruits of its success in the trial court.
In the premises, the application for execution pending appeal is hereby granted
with costs. I make the following order:
(a) Execution of the judgement obtained in this court in
HC1140/07 on 6 February 2012 is hereby granted pending the determination of the
appeal to the Supreme Court in SC67/12.
(b) The respondents are hereby ordered to effect
transfer of ownership of Stand 4 of Subdivision B of Prospect to the applicant
and the first respondent is hereby ordered and directed to sign, or cause to be
signed, all the necessary transfer documents within fourteen (14) days of the
date of this order failing which the Sheriff for Zimbabwe, or his lawful Deputy,
shall be authorised and empowered to sign any such documents.
(c) The costs of this application shall be paid
by the first respondent.