It appears to me the settled approach of this court that the common law principle to the effect that the noting of an appeal suspends the decision appealed against only applies to judgments of superior courts. (See PTC v Mahachi (2) HH183-98; Vengesai & Others v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H); and Founders Building Society v Mazuka 2000 (1) ZLR 528 (HC)). The views of this court are clearly expressed by GILLESPIE J in Vengesai and Others v Zimbabwe Glass Insustries Ltd 1998 (2) ZLR (H) as follows:

"..., the grant, whether automatic or not, of stay of execution of a judgment pending appeal is an inseparable part of an exercise of discretion by the court from which the appeal lies, to order the enforcement of its judgment notwithstanding the appeal noted or any temporary stay. It follows that the question of enforcement pending appeal of judgments from an inferior court or authority cannot possibly be regulated according to a rule of practice, derived from common law, applicable in superior courts of inherent jurisdiction."

The above debate, including the extensive discourse that GILLESPIE J goes into on the subject, arose from the uncertainty on the issue created by an earlier and binding decision by the Supreme Court in Phiri & Others v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S). In that matter, KORSHAH JA held that:

"By Roman Dutch Law, the execution of all judgments is suspended upon the noting of an appeal" when dealing with an appeal from the Minister to the Labour Relations Tribunal in terms of the Labour Relations Act, 1985.

The decisions of this court ever since the judgment have sought ways of avoiding following the ratio decidendi in the matter, with GILLESPIE J submitting to be bound by the decision but respectfully calling upon the Supreme Court to revisit its decision on the issue.

In Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S)..., CHIDYAUSIKU CJ stated:

"...,. The employees, after registering the arbitrator's award with the High Court, should have applied for leave to execute after the noting of an appeal. In this regard CORBETT JA in South Cape Corporation supra at pp 544H-545H had this to say:

'Whatever the true position may have been..., it is today the accepted common law rule of practice in our courts that generally the execution of a judgment cannot be carried out and no effect can be given thereto, except with leave of the court which granted the judgment. To obtain such leave, the party in whose favour the judgment was given must make special application...,. The purpose is to prevent irreparable damage being done to the intending appellant...,. The court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised...,. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments...,. In exercising this discretion, the court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) The potentiality of irreparable harm or prejudice being sustained by the appellant (respondent in the application) on appeal if the leave to execute were to be granted.

(2) The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused.

(3) The prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, eg. to gain time to harass the other party; and

(4) Where there is the potentiality of irreparable harm or prejudice to both appellant and respondent the balance of hardship or convenience, as the case may be.'"

The learned CHIEF JUSTICE proceeded to state:

In Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149H..., SMITH J stated:

"In this country, as in South Africa, the noting of an appeal in a civil case automatically suspends the execution of any judgment or order granted by the court of first instance. In South Cape Corp. v Engineering Management Services 1977 (3) SA 534 (A)..., CORBERTT JA..., said at 544:

'It is today the accepted common law rule of practice in our courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal...,. The purpose of the rule is to prevent irreparable damage from being done to the intending appellant.'

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises.

The respondent is opposed to the granting of the relief being sought.

The respondent, in seeking to oppose the order being sought has raised a point in limine. He avers that there are many disputes of fact on the papers which cannot be disposed of without the hearing of oral evidence. He alleges that he occupies the property with the consent of one Margaret Kathleen Matthew and her husband. He said that these two had sold the property to him in February 2004 and that this alleged sale was an issue before this court in case number HC1454/05.

This court, on 4 October 2006, did, under that case number, issue out a judgment in terms of which the respondent was evicted from the premises. This judgment is however the subject of an appeal to the Supreme Court. I will therefore not comment on the findings by the learned judge in that matter.

The respondent contends, further, that even in these proceedings it is the said Margaret Matthews and her husband who are seeking to evict him and his family through the medium of the applicant.

It is correct that the Matthews have been litigating with the respondent under other case numbers for his eviction from the house. On 23 November 2006, Margaret Matthews filed an application for leave to execute pending appeal which was unsuccessful. In his opposing affidavit to that application, the respondent made the following averments under oath:

“Para 3(e)(i)

In my notice of appeal I raised a number of grounds against the judgment. In essence, I contended that I had offered to buy the property from the applicant to which the applicant did not act.

3(e)(ii)

In any case, the applicant had acted prematurely in seeking my eviction when I was expecting a written agreement to be signed by both parties.

3(e)(iii)

I deny that I appealed in order to frustrate the applicant. I raised the necessary grounds of appeal. I want to protect the offer I made to purchase the house.”

It is clear that whereas in the application before me the respondent contends that he purchased the house from Mrs Matthews; in the earlier application, where he was pitted against her, he told the truth that he had in fact offered to purchase the house but Mrs Matthews did not, as he put it, “act”.

I therefore find that there is no dispute of fact on the alleged purchase of the house by the respondent from Mrs Matthews.

As to whether or not it is Mrs Matthews and her husband trying to evict the respondent through the applicant is concerned, this averment has no merit.

The applicant is the registered owner of the property as the title deeds would show. The respondent has not, apart from making a bald averment as to their alleged involvement in this application, laid any foundation for his claim about how they are acting and I find no substance in the allegation.

It is correct that the respondent assumed occupation through Mrs Matthews in terms of an agreement of lease. It is not clear in what capacity the said Mrs Matthews assumed control of the premises and leased them to the respondent. At the time that the lease agreement was concluded the property was registered in the name of Wenham Investments (Pvt) Ltd. The capacity of Mrs Matthews to have concluded the agreement in the first place was raised by the applicant in these proceedings. She is not a party before me but the respondent, apart from stating that her right to enter into the agreement was recognized by this court, the respondent has not been able to place me any facts which would confirm the legal capacity for Mrs Matthews to have leased the property to him.

In my view, he has not even been able to defend the legality of the lease agreement that he alleges existed before the incidence of the applicant on the scene. He has also claimed that he is on the premises with the consent of Mrs Matthews, which claim I find untenable as she has been actively seeking his ejectment from the premises as far back as 2005 as the pleadings will show.

Coming to the present, the applicant is now the registered owner of the premises. It is therefore entitled to recover the same unless the person in occupation is vested with an enforceable right against the owner. See Chetty v Naidoo 1974 (3) SA 13…, where JANSEN JA stated the following;

“…,. It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar and Others 1910 TS 1314 at 1319) but there can be little doubt (despite some reservations expressed in Munsamy v Gen-gemma 1954 (4) SA 468 (N) at pp 470H-471E) that one of its incidents is the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner (cf. Jeena v Minister of Lands 1955 (2) SA 380 (AD).”

The applicable action is the rei vindicatio which applies for both movables and immovables and it is an action in rem, The Law of Property – SILBERBERG, 3ed…,.

An owner who institutes a vindicatory action need allege, and prove, no more than that he is the owner and that the property is in the possession of the defendant at the time that the recovery action is commenced. If the owner does not go beyond proving ownership in the res, then the defendant has the onus to establish any right to retain possession of the thing being sought to be recovered.

Thus, in casu, the respondent can only remain therein if he can establish a legal basis to do so.

He has alleged an agreement of lease with Mrs Matthews. Mrs Matthews is not the registered owner. If his alleged defence is based on an agreement of lease, such defence would fail unless it was concluded with the applicant herein or if it had been entered into with the previous registered owner and was, at the time that the applicant assumed ownership, still in force. His only recourse would be to allege an agreement of lease with the applicant.

He has attached an agreement of lease concluded on 10 January 2004 with Mrs Matthews. An examination of the Deed of Transfer reveals that transfer to the applicant was effected on 6 April 2004. He cannot claim, therefore, to have concluded a lease agreement with the applicant as it assumed ownership after the lease agreement was concluded. The respondent has never held an agreement of lease with the registered owner of the premises in question at any stage. He did not purchase the property, and, consequently, he has not established a right to remain on the premises.

The respondent further contends that he is a statutory tenant. A statutory tenant can be protected from eviction as long as he shows that he is paying rentals.

Apart from alleging that he is a statutory tenant, the respondent has not even claimed that he has been paying rentals. In case number HC7306/06 the respondent claimed that Mrs Matthews had not indicated how much rental was due to her, and, further, that she had made no demands for rentals. That constitutes a clear admission, in my view, that he had not paid rentals. In this application, the respondent has conveniently left the issue of rentals unsaid.

The applicant, as part of the order sought, prays that the order not be suspended in the event that the respondent appeals against this judgment.

The respondent has not challenged the prayer for the order to remain operational even in the event of an appeal being noted. At common law, the noting of an appeal suspends the operation of the judgment appealed against. It is trite that the court has the discretion to grant an applicant leave to execute a judgment pending appeal.

In Whata v Whata 1994 (2) ZLR 277 (S) GUBBAY CJ stated that the principle to be applied by the court considering an application for leave to execute pending appeal is what is just and equitable in the circumstances.

The enquiry would involve the assessment of factors such as the potentiality of irreparable harm or prejudice being sustained by either the successful or losing party, and, if by both, the balance of hardship or convenience; and the prospects of success on appeal, including whether the appeal is frivolous, vexatious or has been noted for some indirect purpose such as to gain time to harass the other party.

The applicant, in paragraph 12 of the founding affidavit, alluded to the respondent probably noting an appeal to gain more time in on-going occupation of the disputed premises. It also opined that an appeal would have no prospects of success. There was, however, no attempt to deal with the other factors that must be considered in an application for leave to execute. I am of the view, therefore, that in the event that the respondent notes an appeal against this order, the applicant may, at that stage, lodge and file an application for leave to execute pending appeal.

In this regard, I wish to respectfully associate myself with the remarks of the learned Chief Justice in Whata v Whata 1994 (2) ZLR 277 (S) where he stated…,:

“The need to take account of such factors serves to underscore that it is contrary to the basic tenets of natural justice for a court to order that its judgment be operative and not be suspended before giving the unsuccessful party the right to be heard as to why execution should be stayed.”

In the premises, the applicant's claim against the respondent for his ejectment from the Dandaro house and an order will issue in terms of the draft. The application succeeds to that extent. The respondent is ordered to pay the costs of this application.

On 16 March 2007, and at Harare, the applicant entered into a sale agreement with Gatsikanayi Enock Nyamupanda (herein after referred to as Nyamupanda) for the purchase of a certain piece of land being Stand Number 9642 A Salisbury Township also known as Number 2 Umuguza Close, Wilmington Park, Cranborne, Harare, held under Deed of Transfer number 896/03.

The applicant duly paid the purchase price and title was passed to him on 20 April 2007 under Deed of Transfer number 2076/07.

He however could not take occupation of the property as the respondent's son, Killian Chipendo, was in occupation. As a result, the applicant instituted legal proceedings for the eviction of Killian Chipendo and all those claiming occupation through him in case number HC2951/07.

On 26 February 2008, the eviction order was granted and a writ of eviction issued. On 26 August 2008, Killian Chipendo and all those claiming occupation through him were duly evicted by the Deputy Sheriff.

The respondent, who was amongst those evicted on that date, re-took occupation of the property without any court order.

The respondent contended that she was not claiming occupation through Killian Chipendo but in her own right as the surviving spouse of the late Ronnie T Chipendo.

It is common cause that the Estate late R T Chipendo was administered by an executor dative – Muchivete Hungwe of Messrs Hungwe and Partners legal practitioners.

The executor dative obtained authority to sell the property in terms of section 120 of the Administration of Deceased Estates Act [Chapter 6:01] from the Master of the High Court.

Upon obtaining the Master of the High Court's consent he duly sold the property to Gatsikanayi Enock Nyamupanda. Title was passed to Gatsikanayi Enock Nyamupanda by virtue of Deed of Transfer number 896/03.

After the sale, the executor dative did a final Administration Account and distribution plan. The proceeds of the sale were shared amongst the children of the late Ronnie T Chipendo.

The respondent did not partake in the proceeds as she was said to have divorced the late R T Chipendo in 1991 - well before his death.

Gatsikanayi Enock Nyamupanda, as the new owner, sold the property to the applicant on 16 March 2007. The applicant duly obtained title by virtue of Deed of Transfer number 2076/07 dated 20 April 2007.

It was in furtherance of his title to the property, that, on 26 February 2008, the applicant obtained an order for the eviction of Killian Chipendo and all those claiming occupation through him from this court.

The eviction was duly executed by the Deputy Sheriff on 26 August 2008.

As already alluded to, the respondent was one of those who were evicted from the property. She however re-took occupation without any court order. In Mairos Lisimba v Lizzy Chipendo HC868/09, the applicant therein instituted contempt of court proceedings against the respondent for re-occupying the property after eviction.

The respondent opposed the application claiming that she was never cited in the proceedings that led to Killian Chipendo being evicted. As a surviving spouse she occupied the house in her own right.

In this case, HC2220/09, the applicant sought an eviction order against the respondent, her guests and invitees, and all those claiming occupation through her from the property in question.

The respondent opposed the application.

Her opposition was based on her contention that she was the surviving spouse as she had never divorced the late R T Chipendo.

There was no denying that the respondent did not challenge the initial sale of the property by the executor dative to Gatsikanayi Enock Nyamupanda. She also had not objected to the subsequent sale by Gatsikanayi Enock Nyamupanda to the present applicant.

It was further not disputed the property was now registered in the applicant's name.

Section 14(a) of the Deeds Registries Act [Chapter 20:05] states that “the ownership of land maybe conveyed from one person to another only by means of a deed of transfer executed or attested by a Registrar.”

This is what transpired in this instance when ownership passed to Gatsikanayi Enock Nyamupanda, and, later, to the applicant in that order. As owner, the applicant is entitled to claim the property from anyone who is in occupation.

Indeed, as noted in Chetty v Naidoo 1974 (3) SA 13 A:

“There can be no doubt that one of the incidents is the right of the exclusive possession of the res with the necessary corollary that the owner may claim his property wherever and from whosoever is holding it. It is inherent in the nature of ownership that possession of the res would usually be with the owner; it follows that no other person may withhold it.”

The respondent's defence to the application was bound to be affected by the decision in Lizzy Chipendo v Tinashe Muchivete Zenda & Ors HC2655/09.

In that case, the applicant, who is the present respondent, was seeking condonation for the late filing of an application for review in HC2575/09.

After the ruling in HC2655/09 in which I dismissed the respondent's application for condonation for the late filing of HC2575/09, counsel for the applicant inquired on whether the respondent was still intent on opposing the applicant's application in HC2220/09 and HC868/09.

Counsel for the respondent indicated that in view of the ruling in HC2655/09 she was no longer opposing the relief sought by the applicant in HC2220/09. She however expressed reservations about the relief in HC868/09 which is an application for contempt of court.

I did not hear the applicant's counsel to insist with that particular relief.

It was conceded that essentially what the applicant was seeking in both HC868/09 and HC2220/09 was the eviction of the respondent from the premises in question. In HC2220/09 the respondent was cited by her preferred name, and there is no doubt as to who the order affects, thus it may not be necessary to proceed to HC868/09.

Should she defy the order in HC2220/09 then contempt proceedings may be brought against her. This time she would have no excuse that the court order was not in her name.

In the circumstances, the application in HC2220/09 is granted in terms of the draft order, that is:

It is hereby ordered that:-

1. The respondent, her guests, invitees, and all those claiming through her, shall, within 48 (forty eighty) hours of the granting of the order vacate the premises known as Number 2 Umguza Close, Wilmington Park, Harare failing which the Deputy Sheriff is hereby empowered to evict them.

2. In the event that the respondent notes an appeal against this order, such appeal shall not have the effect of suspending the execution of this order.

3. There is no order as to costs.

The second point in limine is -

Whether this matter was properly before the court

The salient facts in this regard are the following.

The first and second respondents filed a court application at the Harare Magistrates Court seeking vacation of premises of the applicant from them on or before 31 July 2009.

The applicant did not instruct its legal practitioners timeously, resulting in a default judgment granted against it on 28 August 2009. Subsequent to the granting of the default judgment, the applicant filed an application for rescission. The first and second respondents filed opposing papers to the application for rescission.

The applicant filed an application for stay of execution, and a nisi rule in it was duly granted. The application for rescission, and the application for stay of execution were subsequently set down for hearing, and were both dismissed with costs.

Aggrieved by the turn of events, the applicant appealed against both judgments of the Harare Magistrates Court to the High Court, Harare, on 23 September 2009.

On 25 September 2009, the first and second respondents filed an application for execution pending appeal. The applicant filed opposing papers, and the matter was set down for hearing on 15 October 2009, and the Harare Magistrate granted the application for leave to execute pending appeal.

The applicant filed a notice of appeal against the latter judgment.

The issue is whether the filing of this notice of appeal suspends the magistrate's judgment granting leave to execute pending appeal.

The applicant's case is that whilst an application for leave is technically, an interlocutory matter, once it is granted, its effect is final, and, as such, the notice of appeal would serve to suspend that order, as envisaged by the provisions of section 40(2)(b) of the Magistrates Court Act [Chapter 7:10].

In my view, when leave to carry a judgment into execution under section 40(3) of the Magistrates Court Act [Chapter 7:10] has been granted by a magistrate, the appellant cannot take interdict proceedings against the execution of the judgment pending his appeal – Josat v Moosa 1949 (1) SA 883 (N)  and Sabena Belgian World Airlines v Ver Elst 1980 (2) SA 238 (W).

Such a procedure, as adopted by the applicant in casu, is not competent.

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:

“IT IS ORDERED THAT:

1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody and under its control vehicles registration number no. AAU 8190, ABC 3354 and AAP 1952.

2. Mydale International (Pvt) Ltd shall record the mileage on each vehicle from the time of receipt from the second respondent.

3. Mydale International (Pvt) Ltd shall be entitled to ordinary use of the motor vehicles and shall not sell or otherwise alienate the said motor vehicles without an order of court.

4. Messrs Byron Venturas & Partners shall within 24 hours of the order surrender to the Registrar of the High Court, Harare the US$28,500 the proceeds for the sale of the six motor vehicles owned by Mydale International (Pvt) Ltd for retention by the Registrar pending the determination of any dispute over ownership of Mydale International Marketing (Pvt) Ltd.”

On 4 April 2009, the first respondent noted an appeal against the order, and, as a result, he did not surrender the money to the Registrar as had been ordered....,.

On 21 April 2009, the applicant launched these proceedings under a certificate of urgency for the grant of a Provisional Order....,.

The terms of the interim relief being sought were the following:

“INTERIM RELIEF GRANTED:

(a) Pending appeal, within 24 hours of the service of this order on him, the first respondent and his lawyers Messrs Venturas & Samukange shall comply with para 4 of the judgment by OMERJEE J in case HC1049/09 dated 3 April 2009.

(b) Failing compliance, the first respondent, and the said lawyers, shall, within a further 24 hours, appear before this honourable court to show cause why he/they should not be committed to prison for contempt of court.”

The order by OMERJEE J is still extant in the sense that it has not been set aside by the Supreme Court.

The order was to the effect that the money which is subject matter of a dispute between the applicant and the first respondent be deposited with the Registrar until the ownership of the shareholding in the applicant has been determined.

The respondent has taken the position that he noted an appeal, and, as a result, did not need to comply with the part of the order requiring that he surrender the money to the Registrar.

In the interim relief sought, the applicant sought to make the order operational without having sought from court an order for execution of the judgment pending appeal.

Although the underlying theme in the body of the founding affidavit is to the effect that the judgment was interlocutory and could not be appealed against, the order being sought, for the legal practitioners of the respondent to pay the money to the Registrar, seems to recognize the validity of the appeal, as the preamble to the order sought shows.

The applicant has made much of the allegation that the appeal was made in order to frustrate the execution of the order by the learned judge.

The question as to whether the appeal has merit is not before me and I cannot delve into such an issue.

The applicant also avers that the appeal is null and void for want of validity as the judgment is interlocutory. The applicant cited no authority for this proposition.

It is a generally acceptable principle that at common law the noting of an appeal suspends the operation of a judgment, and that the consequence of the noting of the appeal is that the execution of the judgment is stayed unless the court directs otherwise. Normally, the party intending to execute against the judgment would approach the court for leave to execute pending appeal.

The applicant has not applied for leave to execute pending appeal which is a necessary procedural step.

The leading case in South Africa which has been followed by our courts is that of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) 534. At p 544H-545C CORBETT JA stated:

“Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks & Anor 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and given effect thereto, except with the leave of the court which granted the judgment.

To obtain such leave, the party in whose favour the judgment was given must make special application. (See, generally, Olifants Tin “B” Syndicate v De Jager 1912 AD 377 at 481; Reid and Anor v Godart & Anor 1938 AD 511 at p513; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746).

The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to intending appellant either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid's case supra at p513). The Court to which application for leave to execute is made has a general discretion to grant or refuse leave, and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (See Voet, 49.7.3; Ruby's Cash Store (Pty) Ltd v Estate Marks & Anor, supra at p127. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments (c.f. Fismer v Thornton 1929 AD 17 at p.19).”

In my view, before seeking to have the court order that the respondent deposit with the Registrar the money in dispute before the parties, the applicant ought to have sought an order to the effect that the appeal was null and void for want of compliance with the Rules on the grounds that the order was interlocutory or for an order for leave to execute pending appeal.

It is also pertinent to note that the appeal is before the Supreme Court, and, it is, in my view, the Supreme Court which should state whether or not the appeal is null and void for want of compliance with the Rules.

In the absence of such a declaration, it is not open to this court to find that the appeal is null and void.

The applicant has done neither, and, it is therefore not in this court's power to order that the respondent complies with the order of OMEREE J.

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:

“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for stay of execution.

2. In the event of the second respondent having ejected applicant from the premises known as 93 Coventry Road Harare, he is hereby directed, temporarily, to return possession of the premises to applicant pending the outcome of the application for stay of execution.”

The terms of the final order sought include, inter alia;

“That second respondent be and is hereby ordered to stay execution permanently against applicant pending the outcome of the Civil Appeal 251/10 ref CIV “A” 423/10.”

The background of the matter is briefly as follows:

The applicant and the first respondent entered into a lease agreement in respect of 93 Coventry Road wherein the applicant was the lessee.

On 9 September 2009, the first respondent's estate agents, Guest and Tanner, invited the applicant to come and discuss an increase in fair rental from $1,200 per month. The first respondent's representatives went for the discussion but the estate agents' representative missed the appointment, and, consequently, no discussion about the issue was ever held.

Subsequently, the applicant offered to increase the rental to $2,400 per month which was accepted by the first respondent. The estate agents communicated acceptance of the offer by a letter dated 21 October 2009 wherein they also gave the applicant a six month notice to vacate the premises on the ground that the first respondent required the premises for its own use. The notice period endured up to 30 April 2010.

Came 30 April 2010, the applicant did not vacate the premises.

On 17 May 2010, the first respondent filed an application for eviction of the applicant in the Magistrates' Court. On 7 June 2010, the Magistrates' Court granted the application. On 8 June 2010, the applicant noted an appeal in this court against the order for its eviction.

Since the noting of the appeal had the effect of suspending the judgment appealed against, the first respondent filed an application for leave to execute pending the appeal.

That application was granted.

The applicant, again, noted an appeal against the order granted to the first respondent to execute pending appeal. Thereafter, the applicant filed this urgent chamber application for the provisional order. The chamber application was accompanied by a certificate of urgency.

At the hearing, counsel for the first respondent raised the following points in limine:

(1) The application lacks urgency in that six months notice to vacate was given. Applicant sat back and it was only on 28 April 2010 (two days before expiry of the notice to vacate that the applicant, in vain, attempted to cajole the first respondent into signing an agreement it had drafted to have the notice period extended.

(2) If relief to stay the execution is granted, this would be tantamount to this court overruling the magistrate's decision to execute pending appeal. Effectively, the applicant was asking this court to determine the appeal when it is not sitting as the Appeal Court.

(3) The court should determine whether there is a valid appeal against the magistrate's decision to grant leave to execute pending appeal.

There is no appeal in this respect because that order to execute pending appeal is not a final or definitive one. It is merely an interlocutory order and such an order is not appeallable. Over and above that, the Notice of Appeal pertaining to that order is fatally defective in that it falls foul of Rule 7 of the Supreme Court Miscellaneous Appeal and Reference Rules, 1975 by not stating all the aspects required in a Notice of Appeal.

In the event, so the argument went, there is no appeal that was noted and the applicant has no basis to come before this court.

Counsel for the applicant, in response, contended that the matter was urgent in that the applicant believed that instead of the matter being brought by way of application, it should have been brought by way of summons since there existed a dispute of fact, viz whether the first respondent required the premises for its own use. Further, the urgency arises because of the first respondent's insistence on eviction before the applicant's appeal is heard.

Regarding the point that if relief to stay execution is granted, this would amount to overruling the magistrate's decision, he said it is interwoven with the one whether the judgment being appealed against is final or not. He submitted that the judgment is final in that once the applicant is evicted, the purpose of its appeal is frustrated.

On whether the Notice of Appeal is fatally defective, he denied that the same rules are applicable. Even if they are, the Notice is sufficiently clear, on the papers, regarding which judgment is being appealed against, the second one granting leave to execute pending appeal. He submitted that the prayer that the judgment of the court a quo be reversed is the standard practice in this regard....,.

3. The validity of the appeal against the magistrate's decision to grant leave to execute pending appeal

The issue for resolution here is whether an order granting leave pending appeal to execute a judgment is interlocutory or final.

It is settled law that if it is final it is subject to appeal, and, if merely interlocutory, then it is not appeallable.

Let me turn, with profit, to the case of Gillespies Monumental Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 (HC).

In the case, the parties had a dispute regarding mining rights over a certain piece of land. The dispute resulted in an order that GILLESPIES vacate the area. GILLESPIES noted an appeal against the order granted. Zimbabwe Granite filed an urgent chamber application seeking an order that leave to execute the order be granted notwithstanding the filing of the notice of appeal. The order applied for was granted. GILLESPIES then filed an appeal against the order and applied for an order that Zimbabwe Granite vacate the area concerned pending the outcome of the two appeals. The application was dismissed with costs.

SMITH J, after considering a series of decisions of the Appellate Division of South Africa and JONES and BUCKLE: The Civil Practice of the Magistrates Courts in South Africa Vol. 1, 8ed…, regarding the meaning of the terms 'interlocutory order' and 'interlocutory judgment', concluded that his order granting leave to execute pending appeal did not have a final or definitive effect on the main suit.

In other words, it was an interlocutory order and could only be appellable with leave of the court.

He held that in the absence of such leave, the noting of the appeal was invalid and hence there was no basis for the application by GILLESPIES: see also Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H); Faye Trust v Moses Zhanje and Anor HH57-02.

It is pertinent to point out the distinction, that, while leave of the High Court is required before making an appeal to the Supreme Court against an interlocutory order or judgment, in the Magistrate's Court the situation is different.

Subsection (2) of section 40 of the Magistrates Court Act [Chapter 7:10] does not provide for the court's leave to appeal.

Appeals are by choice of the appellant but limited to judgments, rules, orders, or decisions covered by paragraphs (a), (b) and (c) of the subsection. The common thread running through those provisions is that the judgment, rule, order, or decision being appealed against must have “the effect of a final and definitive judgment.”

It follows, therefore, that those orders or judgments which are of a purely interlocutory nature are not appeallable.

It having been established that an order granting leave to execute pending appeal, such as the one exitant in the instant case, is purely interlocutory and thus not having the effect of a final judgment on the main suit, despite causing inconvenience to the applicant, it is to all intense and purposes not subject to appeal.

In the result, the noting of the appeal by the applicant against the magistrate's order granting leave to execute pending appeal was invalid and there was no basis for this application. The bringing of the application could be described as analogous to shutting of the stable door after the horse had bolted.

Accordingly, the urgent chamber application is hereby dismissed with costs.

Counsel for the applicant submitted that the noting of the appeal to this court against the judgment of the Magistrates Court hence the need for a judgment creditor to obtain leave to execute pending appeal.

The common law position is that superior courts have an inherent jurisdiction to regulate their own procedures and process. A rule of practice therefore evolved whereby the operation of the judgment of a superior court is suspended upon the noting of an appeal against that judgment.

I will start my discourse on this issue with an examination of the provisions of the Magistrates Court Act [Chapter 7:10]. Section 40(3) of the Magistrates Court Act [Chapter 7:10] provides for the court to direct either that the judgment be executed pending appeal or for a stay of the judgment pending the determination of an appeal. This provision, in my respectful view, acknowledges the absence of an inherent discretion within the court for the automatic suspension of the operation of a judgment or order upon the noting of an appeal. The subsection therefore is specifically intended to provide the court with the power to suspend the operation of a judgment upon the noting of an appeal.

It appears, however, that there is some dissent in our jurisdiction as to the application of this rule to appeals against judgments that do not emanate from courts of superior or inherent jurisdiction.

The notion that this rule is of general application was disabused by GILLESPIE J in Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593. It was reaffirmed by MUNGWIRA J in Founders Building Society v Mazuka 2000 (1) ZLR 528 wherein she stated -

“I find that I cannot express my view on the matter better than by making reference to the following remarks of GILLESPIE J in the case of Vengesai & Ors v Zimbabwe Glass  Industries Ltd 1998 (2) ZLR 593 (H) at 598T:

'In stating the common law, CORBETT J referred to the automatic stay of execution upon the noting of an appeal, as a rule of practice. That is, not a firm rule of law, but a long established practice regarded as generally binding, subject to the court's discretion. The concept of a rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal or authority is a creature of statute and bound by the four corners of its enabling legislation. Moreover, the authorities cited by CORBETT CJ are authorities relevant to appeals from superior courts.'

The reference to this rule as a rule of practice shows the acceptance by the learned Judge of the analysis by JANSEN J. This analysis leads inexorably to the conclusion that the grant or withholding of a stay of execution is, at common law, a matter of discretion reserved to a court in which such discretion is imposed. It follows that, in the absence of any statute specifically conferring such discretion on an inferior tribunal or authority, or otherwise regulating the question of enforcement of judgments pending an appeal from that authority, no such discretion can exist. Such a court or authority can exercise only the powers conferred by the statute. It cannot order suspension of its own judgments notwithstanding an appeal. The only basis upon which its judgments or order can be supposed to be stayed is where its enabling statute provides for the situation. Therefore the grant, whether automatic or not, of a stay of execution of a judgment pending appeal is an inseparable part of an exercise of discretion by the court from which the appeal lies, to order the enforcement of its judgment notwithstanding the appeal or any temporary stay. It follows that the question of enforcement pending appeal of judgment from an inferior court cannot possibly be regulated according to a rule of practice derived from common law, and applicable in superior courts of inherent jurisdiction. In Chatizembwa v Circle Cement HH121-94 (not reported) SMITH J, in considering the same issue in the context of an appeal to the Labour Tribunal by an applicant dismissed in terms of a registered Code of Conduct, stated at p4 of the judgment:

“If the legislature had intended that the decision of the body concerned under the code of conduct should be suspended pending an appeal, it would have said so as is done in s113(3). In addition, it would have inserted a power enabling the Labour Relations Tribunal to declare otherwise in appropriate circumstances. The fact that it did not make a specific provision to that effect is a clear indication that it did not intend the noting of an appeal to suspend the decision appealed against. The introduction of the concept of registered codes of conduct which are binding on employers and employees is, to my mind, consistent with principle that determinations made in accordance with the provisions of a registered code should have effect until such time as any appeal is determined.”

This dicta appears, in my view, to run counter to what was expressed by KORSAH JA in Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45…, wherein he stated -

“I am of the persuasion that, in the absence of a clear indication by the law giver to the contrary, the common law position that the execution of all judgments is suspended upon the noting of an appeal, is not ousted by the silence of the statutory instrument, in terms of which the respondent's appeal to the Tribunal was lodged upon the effect of such appeal against the order made by the Minister.”

Earlier on in the judgment this is what the learned judge of appeal stated -

“By Roman Dutch Law, the execution of all judgments is suspended upon the noting of an appeal. Reid & Anor v Godart & Anor 1938 AD 511 at 513, per DE VILLIERS JA, cited with approval by ADAM J in Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (H) at 154G. DE VILLIERS JA explained that-

'The foundation of the common law rule as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by levy under a writ, or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from.'”

The damage that was meant to have been prevented in casu has happened, not because the applicant did not seek to protect its interest but because, due to uncertainty in the law, the judgment creditor proceeded to execute against the judgment despite the noting of the appeal.

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.

The main thrust of the applicant's argument is, however, based on the common law rules enunciated in the case of Phiri & Others v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) to the effect that the noting of an appeal suspends the decision appealed against.

That case should, however, be contrasted with the decision of MUNGWIRA J in the case of Founders Building Society v Mazuka (1) ZLR 526 531 in which she quoted GILLESPIE J with approval in the case of Vengesai & Others v Zimbabwe Glass industries 1998 ZLR 593 (H)…., where the learned judge remarked that:

“In stating the common law, CORBETT JA referred to the automatic stay of execution upon the noting of appeal as a general rule of practice. That is not a rule of law but a long established practice regarded as generally binding subject to the court's discretion. The concept of a rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal or authority is a creature of statute and bound by the four corners of its enabling legislation. Moreover, the authorities cited by CORBETT JA are authorities relevant to appeals from superior courts…,.

It follows that in the absence of any statute specifically conferring such discretion on an inferior tribunal or authority or otherwise regulating the question of enforcement of judgments pending an appeal from that authority, no such discretion can exist. Such a court or authority can exercise only the powers conferred by the statute.”

The applicant has failed to point to any legislation authorizing the automatic suspension of the search warrant upon appeal in the Magistrates Court.

I must, however, state that while I prefer the dicta of GILLESPIE J in the Vengesai & Others v Zimbabwe Glass industries 1998 ZLR 593 (H) case I am bound by the decision of McNALLY JA emanating from the Supreme Court in the Phiri & Others v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) case.

1….,.

2. …,.

3. …,.

4. …,.

5. That this order remains effective notwithstanding the noting of any appeal.

The facts of this case are common cause.

They are as set out in the founding affidavit to this application and aptly summarised in the judgment of the learned Judge in the court a quo. They are as follows:-

The first respondent (hereinafter referred to as "Adam & Co") instituted an action in the High Court for the eviction of Ritenote Printers from two premises it had leased to Ritenote Printers. Adam & Co also sought the payment of arrear rentals from Ritenote Printers. 

This was done in two separate actions. 

The first action was referred to trial and a trial date was set. The other action was still at the pre-trial conference stage. At that stage, Adam & Co withdrew its actions in the High Court and then instituted the same proceedings in the Magistrates Court. Adam & Co was successful in the Magistrates Court and the Magistrates Court ordered the eviction of Ritenote Printers as well as the payment of arrear rentals.

Dissatisfied with the magistrate's judgment, Ritenote Printers appealed against it to the High Court.  

Ritenote Printers, most probably because of the wording of section 40(3) of the Magistrates Court Act [Chapter 7:10] ("the Act"), concluded that the noting of the appeal would not suspend the order of the Magistrates Court. Ritenote Printers accordingly filed an application in the Magistrates Court for the stay of execution pending the determination of that appeal.

Section 40(3) of the Magistrates Court Act [Chapter 7:10] provides as follows:

"40 Appeals

(1)…,.

(2)…,.

(3) Where an appeal has been noted, the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application."

That application was dismissed by the magistrate on the ground that the magistrate was of the view that she could not grant such relief, as the noting of the appeal had suspended the operation of the magistrate's order. The following is the magistrate's ruling:

"This is an application for stay of execution by the applicant who is the respondent in the main matter.  

The applicant appealed against the decision of the court a quo, which appeal automatically suspended the operation of the judgment. The applicant is now applying again for stay of execution…, which is vague and embarrassing since execution has been stayed already by the appeal.

However, the applicant has no prospect of success at the High Court and (the) balance of convenience favours the respondent who is the applicant in the main matter.

 Accordingly, the application for stay of execution is dismissed with costs."

If the learned magistrate had dismissed the application on the basis that the appeal had no prospects of success, which appears to be her view, I would have no problem with that ruling.

However, a proper reading of her judgment clearly suggests that she dismissed the application because she was of the erroneous view that the noting of the appeal automatically suspended her judgment. This is not what section 40(3) of the Magistrates Court Act [Chapter 7:10] provides. What happens upon the noting of an appeal against the magistrate's judgment is governed by section 40(3) of the Magistrates Court Act [Chapter 7:10]. Adam & Co would probably not have needed to apply if the learned magistrate had dismissed Ritenote Printers's application on the basis that Ritenote's appeal had no prospects of success.

In my view, the wording of section 40(3) of the Magistrates Court Act [Chapter 7:10] leaves a lot to be desired, but a proper reading of the section reveals that it confers on the magistrate the power to stay execution despite the noting of an appeal. The section also confers on the magistrate the power to order execution despite the noting of an appeal. It follows, therefore, that for the magistrate to exercise the discretion in terms of section 40(3) of the Magistrates Court Act [Chapter 7:10], the party seeking to have the discretion exercised in its favour has to make an application. Upon the making of such an application, the magistrate exercises the judicial discretion and makes a proper determination.

In casu, Ritenote Printers applied for the stay of execution of the order pending the determination of the appeal. The learned magistrate dismissed that application on the erroneous basis that her judgment had been suspended by the noting of the appeal. In effect, her ruling was that her judgment cannot be executed because it had been suspended by the noting of an appeal. 

That determination, though based on a misdirection, is extant.

Adam & Co did not apply for leave to execute the judgment in its favour despite the noting of an appeal.

As I have said, my reading of section 40(3) of the Magistrates Court Act [Chapter 7:10] is that if Adam & Co wished to execute despite the noting of an appeal it had to apply for such leave. In casu, Adam & Co would probably not have needed to make the application if the learned magistrate's ruling had not been predicated on a serious misdirection. Adam & Co simply instructed the Messenger of Court, the second respondent, to evict Ritenote Printers and attach its property, which the Messenger of Court duly did.

Ritenote Printers, upon being evicted, applied to the High Court seeking to set aside the eviction and the attachment of its property. The application was based on two grounds;

(i) Firstly, that Adam & Co did not apply for and obtain an order to execute the judgment of the magistrate despite the noting of the appeal, as is required by section 40(3) of the Magistrates Court Act [Chapter 7:10]; and

(ii) Secondly, that the effect of the magistrate's ruling, cited above, was that Adam & Co could not execute the judgment because, in the magistrate's opinion, the noting of an appeal had the effect of suspending her judgment.

It is quite clear that the magistrate's ruling, right or wrong, was that Adam & Co could not execute her judgment….,.

GOWORA J dismissed Ritenote Printers' application.  

In her reasons for judgment, the learned Judge analysed, in some detail, the authorities on the doctrine of inherent jurisdiction enjoyed by the superior courts. She concluded, quite correctly in my view, that that jurisdiction empowers the superior courts to regulate their own process. Included in that jurisdiction is the courts' power to order execution of their judgments despite the noting of appeals. The learned Judge also concluded, again quite correctly in my view, that inferior courts do not have this inherent jurisdiction to regulate their own process. The power as to what inferior courts can do or cannot do is to be found within the four corners of the Act that creates them, in the present case the Magistrates Court Act, and, in particular, section 40(3) of the Magistrates Court Act [Chapter 7:10]. The learned Judge further concluded that the common law position that the noting of an appeal suspends the judgment appealed against does not apply to the Magistrates Court. Consequently, the judgment in favour of Adam & Co was not suspended by the noting of an appeal by Ritenote Printers.

The learned Judge further reasoned that because the noting of the appeal did not suspend the learned magistrate's judgment, Adam & Co were entitled to execute that judgment.  

In my view, this is where the learned Judge erred.

(i) Firstly, the ruling of the magistrate, that her judgment had been suspended by the noting of the appeal, though erroneous, was extant. 

While that judgment was extant, Adam & Co could not act in contravention of it. The learned Judge did not set aside the magistrate's ruling. There was no appeal against that ruling.  The application before the learned Judge was simply to set aside the eviction and attachment orders. The parties simply ignored it.

(ii) Secondly, section 40(3) of the Magistrates Court Act [Chapter 7:10] regulates the issue of execution and stay of execution upon the noting of an appeal.  

It confers on the Magistrates Court the discretion to authorise either.  

That discretion is a judicial discretion to be exercised upon the making of an application by either party.   Thus, a party, in this case Adam & Co, that wishes to execute despite the noting of an appeal, has to apply to the magistrate for the magistrate to exercise the discretion in its favour before it can execute the judgment. 

Adam & Co made no such application, and, in my view, cannot execute without an order authorising execution from the magistrate.   

Equally, if the losing party, in this case, Ritenote Printers, wishes to stay execution despite the noting of an appeal, it has to apply for such relief.  

This is what Ritenote Printers did.  

Regrettably, the learned magistrate dismissed the application, on the erroneous basis that the application was superfluous as her judgment had been suspended by operation of law.  

The effect of the magistrate's ruling is that Adam & Co cannot execute against Ritenote Printers.

As I have already indicated, Adam & Co cannot, in terms of section 40(3) of the Magistrates Court Act [Chapter 7:10], execute until it has applied in terms of that section to execute its judgment and that application has been successful. It has made no such application. Consequently, in my view, it was not be entitled to execute.

In the result, I am satisfied that Ritenote Printers has established a prima facie right, which is likely to be confirmed on appeal to this Court, entitling it to the interim relief that it has sought in this Chamber application. Once the interim relief is granted, the need to hear the appeal on an urgent basis falls away.

I would therefore grant the application and make the following order;

(1) Pending the determination of the appeal, the applicant is restored to the occupation of the leased premises, being 109 Leopold Takawira Street and 147 Mbuya Nehanda Street, Harare.

(2) The second respondent is ordered not to sell in execution any of the property attached by it pending the determination of the appeal.

The common law rule of practice in the superior courts is that execution of a judgment appealed against is automatically suspended unless leave to execute is granted:

See Wood NO v Edwards & Anor 1966 RLR 336 (G); 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; Geffen v Strand Motors (Private) Limited 1962 (3) SA 62; South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534; Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC); Vengesai and Others v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H); and Chematron Products (Pvt) Ltd v Tenda Transport (Pvt) Ltd & Registrar of Deeds HH343-13.

In terms of that common law rule, 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. 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.”

In South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534…, CORBETT JA put it as follows:

The first respondent's second line of argument in opposition to the application was that, whilst the principle which states that an appeal suspends execution of a judgment appealed against was, or is, a correct reflection of the law, the intended appeal was aimed at the dismissal of the application for rescission of judgment and not at the default judgment itself.

It submitted that the default judgment was not disturbed by the appeal which the applicants filed with the Supreme Court. It said the default judgment remained intact. It stated that what was suspended by the appeal which the applicants noted was TAGU J's judgment. It, therefore, insisted that execution should proceed.

The applicants appeared to have missed the first respondent's argument on this matter. They did not address the court in respect of it. They remained disturbingly mute.

It requires little effort to observe that the dismissal of the application for rescission terminated the order for stay of execution which the court granted to the applicants on 21 April 2015 under case number HC1922/15. As of 5 August 2015, therefore, the order of MTSHIYA J [case number HC11024/14] once again became executable.

The appeal which the applicants noted does have a substantial bearing on the default judgment which the court entered in favour of the first respondent.

Where the Supreme Court dismisses the appeal, the default judgment remains undisturbed, and, therefore, enforceable. However, where the Supreme Court upholds the appeal, the default judgment cannot be enforced as it would have been rescinded by an order of that court. The parties would, in that regard, have reverted to their status quo ante which prevailed before the default judgment was granted to the first respondent.

There is no doubt that the appeal is inter-linked to both the dismissal of the application for rescission and the default judgment itself. The Supreme Court's determination of the appeal is a sine qua non of the enforceability or otherwise of the default judgment. It follows, from the foregoing, that the applicants' appeal to the Supreme Court suspends both the dismissal of the application for rescission and the default judgment which the court entered in favour of the first respondent….,.

The wise words of CORBETT JA, who, in South Cape Corporation v Engineering Management Services 1977 (3) SA 534 (A), made a definite pronouncement of the law on this aspect of the matter when he remarked as follows:

“It is today the accepted common law rule of practice in our courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with result that, pending the appeal the judgment cannot be carried out and no effect can be given thereto, except with the leave of court which granted the judgment. To obtain such leave, the party in whose favour the judgment was given must make a special application. The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant…,.”

Whilst the above-cited words emanated from a court which falls outside our jurisdiction, the persuasive value of CORBETT JA's dictum cannot be taken to be without weight.

The applicant was discharged from employment on 28 December 2015.

On 4 January 2016, he noted an appeal against the discharge to the Police Service Commission in terms of section 51 of the Police Act [Chapter 11:10], the applicant being a 'member' of the force as opposed to being 'an officer' as defined in section 2 of the Police Act [Chapter 11:10].

The appeal in question is still pending and is yet to be determined.

Notwithstanding the noting of the appeal, the applicant bitterly complains that the police authorities have gone ahead to effect the dismissal proceedings. His salary has been terminated, his rights to liberty and dignity have been violated as the respondent's subordinates have repeatedly harassed him in the presence of his colleagues and members of his family; and State property, given to him as a police officer, has been withdrawn, including the Government accommodation he has been occupying.

The applicant has therefore approached this court seeking an order interdicting the respondent from such conduct until such time that his pending appeal has been determinated by the Police Service Commission.

The only thing going in his favour in the present matter is that counsel for the respondent conceded that his termination process was commenced before the authorities received his appeal. Now that he has appealed his salary will be reinstated.

The respondent is empowered, by section 48 of the Police Act [Chapter 11:10], to discharge a member convicted of any offence and sentenced to imprisonment without the option of a fine whether or not the execution of such sentence is suspended.

That section gives the respondent the discretion to either discharge a member or impose the penalty of a reduction of rank, loss of seniority, or withhold a salary increment. He may, in his discretion also reprimand a member.

Appeals against the decision of the Commissioner, taken in terms of that Part, are governed by section 51 of the Police Act [Chapter 11:10] which provides:

“A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed, and the order shall not be executed until the decision of the Commission has been given.”

As I have said, the applicant has appealed the discharge and the Commission is yet to adjudicate on that appeal.

It is clear from a reading of section 51 of the Police Act [Chapter 11:10] that an appeal to the Commission suspends the order appealed against. It is therefore incompetent for the respondent to set in motion the procedure for dismissal when the order has been appealed against.

The applicant is entitled to the status quo ante which subsisted before the discharge order was issued….,.

Counsel for the respondent conceded that when the applicant was discharged his salary was terminated. This they could not do, as I have already said, the appeal having suspended the discharge order.

Besides, the Mines and Minerals Act [Chapter 21:05] does not even say that in the event of an appeal being lodged mining operations are suspended.

The impugned interim order was granted on 11 December 2016.

The appellant noted the present appeal against that order on 12 December 2016 - the effect of which appeal was to suspend the order.

Following the granting of the provisional order, the applicant subsequently sought an order of contempt against the first respondent - which order was granted. The first respondent noted an appeal against the order of contempt and that appeal is yet to be heard.

Counsel for the applicant sought, as a preliminary point, the barring of the first respondent from being heard on the basis that he has not complied with the contempt order. It is common cause that the first respondent noted an appeal against the contempt order. Whilst acknowledging the appeal that was noted, counsel for the applicant persisted with the preliminary point on the basis that despite the noting of the appeal, the first respondent had still not complied with the provisional order.

Since the preliminary point is allied to the final relief sought I directed counsel for the applicant to proceed to address me on the merits.

WHETHER THE COURT A QUO SHOULD HAVE REFUSED AUDIENCE TO THE FIRST RESPONDENT

It is common cause that, following the issue of the provisional order, the first respondent opposed the confirmation of that order. He denied having taken occupation of the farm. He also denied having interfered with any farming activities or having moved his cattle onto the land.

In its answering affidavit, the appellant averred that by the time the provisional order had been granted, the first respondent's wife had moved three people into one of the rooms at the staff quarters. Between 1 August and 8 August 2014, notwithstanding the existence of the provisional order, the first respondent or his wife or other persons claiming through him had moved onto the farm, rounded up the appellant's pedigree hereford herd and removed the same from the farm; had evicted the appellant's labour from the farm compound and occupied the compound; had removed the senepol pedigree herd and instructed the appellant's labour force not to lock the gate leading to the vegetable garden.

Following what the appellant considered was the unlawful taking over of the farm by the first respondent, the appellant filed an application seeking an order, in HC1856/14, that the first respondent be found to be in contempt of the order of the court a quo. Although the first respondent opposed that application, the High Court granted the order declaring the first respondent to be in contempt of court and further ordered that he complies with the provisional order. The first respondent appealed to this Court against that order. A further application seeking execution pending determination of the appeal was also filed by the appellant.

Both matters had not been determined at the time of the disposition made by the court a quo which forms the basis of the present appeal.

Whether the first respondent had a right of audience was an issue that was considered by the court a quo. At page 3 of the cyclostyled judgment, the trial judge remarked:-

“Ms Dube sought, as a preliminary point, the barring of the first respondent from being heard on the basis that he has not complied with the contempt order. It is common cause that the first respondent noted an appeal against the contempt order. Whilst acknowledging the appeal that was noted, Ms Dube persisted with the preliminary point on the basis that despite the noting of the appeal the first respondent had still not complied with the provisional order….,.

At page 5 of the judgment, the court a quo further remarked:-

“In light of the above case authorities, and relevant legislation, I found applicant counsel's preliminary point of seeking that the first respondent be denied audience to be untenable. The applicant has no legal right to the land in question…,.”

The above remark, that the first respondent could not be denied audience because the appellant had no right to the land was clearly erroneous.

Whether the first respondent had a right of audience before that court had nothing to do with the question whether the appellant had any legal rights to the land. The appellant had submitted, in its heads of argument, that, despite the clear interdictory relief granted, the first respondent had nevertheless taken occupation of the farm and had disrupted farming activities thereon. On that basis, the appellant had urged the court not to hear the first respondent until such time as he purged his contempt.

Notwithstanding the above error on the part of the court a quo, it is clear that, for the reason that follows, the decision by the court giving audience to the first respondent was, at the end of the day, the correct one.

The appellant had instituted separate proceedings in HC1856/14 for an order declaring the first respondent to be in contempt of court. The High Court did, in fact, find the first respondent guilty of contempt of court but this order was immediately appealed against, and, at the time of the confirmation proceedings in that Court, the matter was pending before this Court. Also pending before the High Court was an application to execute the order that the first respondent was in contempt pending determination of the appeal.

The position is now settled in our law that the noting of an appeal suspends the execution of the judgment appealed against unless the court otherwise directs. See Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZLR 198 (S)…,.

The general effect of the noting of an appeal is that no results can flow from the judgment appealed against which would place the parties in a position different from that which they enjoyed immediately before judgment was given.

I therefore accept counsel for the first respondent's submission that the issue of contempt cannot properly arise on the papers. Whether or not the first respondent had conducted himself contrary to the order of the High Court was not common cause. That issue is the subject of an appeal that is pending before this Court. The suggestion that this Court should decline audience to the first respondent on the basis of a disputed contempt that is still to be determined by this Court cannot have been honestly made.

On the facts before it, the court a quo had no basis for refusing to hear the first respondent and therefore correctly dismissed that preliminary point.

It is trite that once an appeal is filed, the decision of the court a quo is suspended unless the successful party in the court a quo is granted special leave to execute pending appeal.

Mr Katsande approached this court seeking the following order;

“1. The writ of execution in case HC8046/12, dated 18 February, be and is hereby set aside.

2. The first and second respondents, jointly and severally, the one paying the other to be absolved shall bear the costs of the application on an attorney client scale.”

The background to the matter is that Mr Katsande, in case No. HC8046/12, unsuccessfully sued the second respondent for non-payment of his fees. The judgment was handed down on 31 October 2013. On 18 November 2013, Mr Katsande filed an appeal in the Supreme Court and served it on Messers Venturas & Samukange. On 18 February 2014, the second respondent obtained a writ of execution from this court. On 26 February 2014, Mr Katsande, through Messrs Katsande wrote to Messrs Venturas & Samukange advising them that they had noted an appeal against the judgment in HC8046/12. They challenged Messrs Venturas & Samukange to provide the legal basis upon they had obtained a writ when there was an appeal pending. The letter concluded by advising that if there was no compliance with their request then they would have no option but to have recourse at law. There was no response to that letter.

On 28 February 2014, Mr Katsande filed the present proceedings.

The basis for seeking the relief is that, in terms of the law, noting an appeal suspends the operation of the judgment appealed against. The writ is grossly irregular and must have been compiled by the first respondent with malicious intent….,.

On the merits, both respondents oppose the application on the basis that the appeal is defective as Mr Katsande did not follow the laid down rules of the court. The second respondent gave instructions to Mr Samukange to apply to have the appeal struck out for failure to comply with the rules. The respondents further aver that at the time the application was noted the writ had already been issued and noting of an appeal did not suspend the writ….,.

Mr Samukange further submitted that in any event the order being sought by the applicant has been overtaken by events as the appeal had lapsed. He produced the notice to Messrs F.M. Katsande & Partners, dated 19 December 2014, to that effect, from the Registrar of the Supreme Court.

In response, Mr Katsande submitted, from the bar, that there was an administrative error on the part of the Registrar to deem the appeal lapsed. He had made representations to the Registrar of the Supreme Court and the issue was still being considered.

He further submitted that having filed the appeal, Mr Samukange instructed the Deputy Sheriff to execute. He did not file for leave to execute pending appeal. The Deputy Sheriff indicated that he was under instruction from Mr Samukange. It was therefore necessary for Mr Samukange to explain the legal basis upon which he instructed the Deputy Sheriff to execute. He further submitted that Mr Samukange was “the miscreant and master mind” of the whole issue.

As was correctly submitted by Mr Samukange, the appeal was deemed lapsed by the Registrar of the Supreme Court. The order that the applicant sought has therefore been overtaken by events. The representations that the applicant made to the Registrar will not assist him unless and until the appeal has been re-instated….,.

Accordingly, I will make the following order:-

1. The application is dismissed.

This Urgent Chamber Application was placed before me because the Chief Justice was not available to hear it. The application raised two questions for determination:

(i) The first question is whether an interim order suspending the operation of legislation compelling payment by a taxpayer of the amount of tax liable to be paid notwithstanding an appeal to the Fiscal Appeal Court or pending a decision of a court should be granted pending the hearing and determination of the main application challenging the constitutional validity of the legislation by the full Bench of the Constitutional Court.

(ii) The second question is whether an order should be made directing that the main application be heard on an urgent basis.

The facts which gave rise to the questions for determination are these.

The applicant is a company incorporated under the laws of Zimbabwe carrying on the business of supplying transport services and selling of fuel. The respondent is an administrative authority established in terms of the Revenue Authority Act [Chapter 23:11]. It is entrusted with the responsibility of assessing taxpayers for tax liability and collecting revenue due to the fiscus in terms of the Value Added Tax Act [Chapter 23:12](“the VAT Act”) and the Income Tax Act [Chapter 23:06] (“the Income Tax Act”).

The applicant has been a registered operator in terms of the Value Added Tax Act [Chapter 23:12] since October 2010. As from 2010, the applicant has been supplying transport services to and purchasing fuel for sale at its service station from an entity called Sakunda Energy. It has always been aware of its obligation to charge value added tax on the invoices for the transport services supplied to Sakunda Energy. Instead of submitting returns of value added tax based on the invoices on the transport services supplied, the applicant set off the costs of fuel purchased from Sakunda Energy against the invoices for the transport services and submitted returns for value added tax in respect of the balance.

The respondent commenced investigations into the tax affairs of the applicant in October 2013. Upon examination of the applicant's books of account, the respondent concluded that the applicant had under-declared the value added tax charged on the invoices on transport services supplied to Sakunda Energy as a result of the setting off of the cost of fuel purchased against the value of the invoices for the transport services. The applicant was advised of the under declaration on 11 December 2013. The respondent was of the view that the value added tax on the invoices was liable to be paid to the fiscus regardless of the purpose for which transport services were supplied.

On 7 February 2014, the respondent issued the applicant with an assessment of value added tax liability in an amount of US$1,619,161=32 including penalties and interest. According to the respondent, it was what the applicant and Sakunda Energy were doing in their business transactions, as revealed by the examination of books of account, which produced evidence of tax evasion.

The applicant was dissatisfied with the tax liability assessment arguing that it did not owe the whole amount of the value added tax assessed to be due and payable. On 27 February 2014, the applicant lodged a formal objection with the Commissioner against the correctness of the assessment in terms of section 32 of the VAT Act. The allegation was that the respondent had adopted a wrong method of assessing the applicant's tax liability. The respondent was accused of having misunderstood the nature of the applicant's business operations. Correspondence was exchanged on the matter between the parties between 14 and 17 March 2014. The Commissioner disallowed the objection in respect of the assessment of value added tax liability on 13 May 2014.

The applicant noted an appeal to the Fiscal Appeal Court against the correctness of the assessment on 23 May 2014.

On 27 May 2014, the Commissioner reminded the applicant of its continuing obligation to pay the amount of the tax assessed to be due and payable notwithstanding the noting of the appeal to the Fiscal Appeal Court. On 30 May 2014, the applicant's tax consultant simply expressed a view to the respondent that it would be prudent to await the outcome of the appeal.

Concurrently with the review of the applicant's value added tax affairs, the respondent carried out an assessment of the applicant's income tax liability. The respondent assessed the applicant's income tax liability to be an amount of US$2,066,652=84 including penalties and interest. On 3 June 2014 it sent to the applicant a complete tax computation for both value added tax and income tax. The respondent threatened to put in place measures to recover the taxes in terms of section 48 of the Value Added Tax Act [Chapter 23:12] should the applicant fail to pay the money voluntarily. It later appointed three of the applicant's bankers, and Sakunda Energy, as agents for the payment of the value added tax assessed to be due and payable.

On 5 June 2014, the applicant filed an application with the Constitutional Court, in terms of section 85(1) of the Constitution, challenging the validity of sections 36 of the VAT Act and 69(1) of the Income Tax Act. The allegation is that the legislative provisions violated the applicant's fundamental right of access to the courts enshrined in section 69(3) and the right to administrative justice guaranteed under section 68(1) of the Constitution. The applicant sought, as the relief, a final order declaring sections 36 of the VAT Act and 69(1) of the Income Tax Act to be ultra vires sections 68(1) and 69(3) of the Constitution and therefore void.

Simultaneously with the filing of the main application, the applicant filed the urgent chamber application seeking an order that the main application be heard on an urgent basis. It also sought interim relief in the following terms:

“INTERIM RELIEF GRANTED

1. Pending the hearing and finalization of Applicant's appeal in the Fiscal Appeal Court, Applicant's obligation to pay value added tax and income tax be and is hereby suspended.

2. Respondent be and is hereby ordered to forthwith provide written reasons for its decision to compel payment of value added tax and income tax pending Applicant's appeal to the Fiscal Appeals Court.”

Section 36 of the Value Added Tax Act [Chapter 23:12] provides:

“36. Payment of Tax pending appeal

The obligation to pay and the right to receive and recover any tax, additional tax, penalty or interest chargeable under this Act shall not, unless the Commissioner so directs, be suspended by any appeal or pending the decision of a court of law, but, if any assessment is altered on appeal or in conformity with any such decision or a decision by the Commissioner to concede the appeal to the Fiscal Appeal Court or such court of law, a due adjustment shall be made, amounts paid in excess being refunded with interest at the prescribed rate (but subject to section forty-six) and calculated from the date proved to the satisfaction of the Commissioner to be the date on which such excess was received, and amounts short-paid recoverable with penalty and interest calculated as provided in subsection (1) of section thirty-nine.”

The obligation to pay the amount of tax assessed to be due and payable is imposed by section 38 of the Value Added Tax Act [Chapter 23:12].

Section 69 of the Income Tax Act [Chapter 23:06] provides:

“69. Payment of tax pending decision on objection and appeal

(1) The obligation to pay and the right to receive any tax chargeable under this Act shall not, unless the Commissioner otherwise directs and subject to such terms and conditions as he may impose, be suspended pending a decision on any objection or appeal which may be lodged in terms of this Act.

(2) If any assessment or decision is altered on appeal, a due adjustment shall be made, for which purpose amounts paid in excess shall be refunded and amounts short paid shall be recoverable.”

The obligation to pay income tax assessed to be due and payable is imposed by section 71(1) of the Income Tax Act [Chapter 23:06]….,.

I now turn to decide the first question.

It is important to mention that the purpose of these proceedings is not to determine the correctness or otherwise of the tax assessments made by the respondent. That is the question to be determined by the Fiscal Appeal Court in the appeal lodged by the applicant. On the question before this Court, the decision is that a case has not been made for the granting of the relief sought. The reasons for the decision follow:

There is no doubt that a judge of the Constitutional Court may grant interlocutory relief by way of an interim order pending determination of a constitutional matter by the full Bench of the court. Section 166(3) of the Constitution provides for interlocutory matters to be heard by one or more judges of the court. See Williams & Anor v Msipha N.O. & Ors 2010 (1) ZLR 552 (S)…,.

The applicant seeks an order suspending the statutory obligation to pay the amount of the tax it was assessed to be liable to pay to the fiscus pending the hearing and finalization of the appeal in the Fiscal Appeal Court. It is in the heads of argument that the applicant reveals that the relief sought is an interim interdict. There is need to have regard to the substance and not the form of the relief sought. The fact that the applicant calls the order sought an interim interdict does not make it one.

The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with. An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a prima facie right pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right.

It is axiomatic that the interdict is for the protection of an existing right. There has to be proof of the existence of a prima facie right. It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it. An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct. Airfield investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S); Stauffer Chemicals v Monsato Company 1988 (1) SA 895; Rudolph & Anor v Commissioner for Inland Revenue & Ors 1994 (3) SA 771.

The applicant accepted, in the founding affidavit, that the respondent acted lawfully in enforcing the obligation to pay the tax notwithstanding the noting by it of the appeal to the Fiscal Appeal Court against the correctness of the assessment. It did not allege any unlawful conduct on the part of the respondent which would justify the granting of an interdict. It also accepted that at the time the respondent put in place measures to collect the tax, the provisions of sections 36 of the VAT Act and 69(1) of the Income Tax Act were binding on it.

That means that the applicant had no prima facie right in existence at the time not to pay the amount of tax it was liable to pay to the fiscus. Sections 36 of the Value Added Tax Act [Chapter 23:12] and 69(1) of the Income Tax Act [Chapter 23:06] protect a duty, not a right.

The provisions are designed to remove any doubt in the mind of the taxpayer as to whether an appeal to the Fiscal Appeal Court, or a decision of a court, would have the effect of suspending the obligation to pay the tax assessed to be due and payable….,.

Sections 36 of the VAT Act and 69(1) of the Income Tax Act provide that the Commissioner may, by a directive, in appropriate circumstances, give the appeal to the Fiscal Appeal Court the effect they prohibit on the obligation to pay the assessed tax. The Commissioner may, in the exercise of discretion, and upon consideration of the facts presented to him by the taxpayer, direct that the obligation to pay the tax be suspended pending determination of the appeal by the Fiscal Appeal Court or pending a decision by a court of law.

Whilst sections 36 of the VAT Act and 69(1) of the Income Tax Act provide that the occurrence of any of the specified events shall not suspend the taxpayer's obligation to pay the tax assessed to be due and payable, they, at the same time, create a remedy for the amelioration of possible financial hardships faced by an individual taxpayer. They give the Commissioner the discretionary power to suspend the obligation pending the determination of the appeal by the Fiscal Appeals Court or pending the decision by a court.

Failure to fulfill an obligation may be due to a variety of circumstances. The legislature decided to place the responsibility of deciding whether or not the particular circumstances of a taxpayer, entitle him or her to a directive suspending the obligation to pay the assessed tax, on the Commissioner. A court of law would be acting unlawfully if it usurped the discretionary powers of the Commissioner and ordered a suspension of the obligation on a taxpayer to pay assessed tax pending determination of an appeal by the Fiscal Appeal Court….,.

Sections 36 of the Value Added Tax Act [Chapter 23:12] and 69(1) of the Income Tax Act [Chapter 23:06] make provision for a remedy, compliance, with which is designed to give effect to the protection of the fundamental rights the applicant claims have been infringed. See Metcash Trading Ltd v The Commissioner for the South African Revenue Service and Another 2001 (1) SA 110 (CC).

The fact that the statutory provisions give the Commissioner the discretionary power to direct that the continuing obligation to pay the tax be suspended pending an appeal to the Fiscal Appeal Court means that a mechanism was put in place to ameliorate financial hardships experienced by individual taxpayers as a result of the enforcement of the “pay now, argue later rule.” Suspension of the operation of the 'pay now, argue later rule' can be decided and should be decided by the Commissioner. He cannot act mero motu. As the facts on which the Commissioner would exercise the discretionary power would be within the exclusive knowledge of the taxpayer he or she must place them before the Commissioner.

In this case, the Commissioner was not formally requested, by the applicant, to direct the suspension of the continuing obligation to pay the charged tax pending determination of the appeal by the Fiscal Appeal Court. No decision was made by the Commissioner on the matter. The respondent cannot be ordered to give reasons for a decision it did not make. The applicant merely expressed an opinion that it would be prudent for the respondent not to demand payment of the tax pending determination of the appeal. The respondent cannot be ordered to give reasons for reminding the applicant of its statutory obligation…,.

(1)…,

(2) The application for an interim order suspending the obligation imposed on the applicant to pay the tax assessed to be due and payable pending the hearing of the appeal by the Fiscal Appeal Court or the constitutional matter filed in Case No. CCZ41/14 be and is hereby dismissed.

(3) The applicant is to pay the costs of the urgent chamber application.

It is common cause that the Domestic Violence Act [Chapter 5:16] (DVA) makes no provision in respect of appeals….,.

One may also argue that any party should be afforded the opportunity to appeal as a right and that if the legislature intends to oust such a right then a clear provision in the Act should state that an appeal will not suspend the operation of the order granted.

There are similar provisions in section 27(3) of the Maintenance Act [Chapter 5:09] and section 92E(2) of the Labour Act [Chapter 28:01]….,.

I am…, of the strong view that a right to appeal is an important right which is protected in our law.

It is trite that generally the noting of an appeal suspends the order appealed against.

Effect of Noting Appeal

Counsel for the applicant submitted that section 201A of the Customs and Excise Act [Chapter 23:02] relates to appointment of agents by the Commissioner-General. Since an appeal was noted against the decision of the Commissioner General, the decision made in the letter of 3 December 2013 was suspended.

He based this submission on the common law.

However, counsel for the applicant further submitted that there is conflict regarding the effect of noting an appeal against the decision of an administrative authority. Nonetheless, counsel for the applicant placed reliance on the case of Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR149 (HC). He also referred to section 14 of the Fiscal Appeals Court Act.

Counsel for the respondents submitted that the dispute must be analysed in the context of the provisions of the Customs and Excise Act [Chapter 23:02]. Thus, the statute in question bestows certain powers on the respondents which cannot be overridden by common law principles. For example, there is provision for payment of duty pending the resolution of a dispute….,.

Regarding the effect of noting of the appeal, section 14 of the Fiscal Appeal Court Act [Chapter 23:05] provides that -

“The obligation to pay and the right to receive and recover any tax, additional tax, penalty or interest chargeable under this Act shall not, unless the Commissioner so directs, be suspended by any appeal in accordance with section 11 or 13 or pending the decision of the court, but, if any assessment is altered on appeal or in conformity with any such decision or a decision by the Commissioner to concede the appeal to the court, a due adjustment shall be made, amounts paid in excess being refunded with interest at the prescribed rate and calculated from the date proved, to the satisfaction of the Commissioner, to be the date on which such excess was received, and amounts short-paid being recoverable with penalty and interest.”

In Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC), SMITH J held that, in civil cases, the noting of an appeal automatically suspends the execution of any judgment or order granted by the court of first instance. Having noted that there are statutes that provide against the suspension of a judgment or order upon the noting of an appeal the learned judge went further to recommend that the law be amended in as far as it provides for the automatic suspension of the execution of a judgment or order upon the noting of an appeal.

In Longman Zimbabwe (Pvt) Ltd v Midzi & Others 2008 (1) ZLR 198 (S), the Supreme Court noted that the common law rule on the effect of noting an appeal has not been applied uniformly, resulting in a divergence of opinion. However, at pp 205-206 GARWE JA had this to say:

“There is a presumption in our law that Parliament does not intend to alter the common law unless it does so expressly or by necessary implication. Silence by the Legislature should not be taken to mean that the Legislature intends to alter the common law position. If the enabling legislation is silent, then the common law position must apply: PTC v Mahachi 1997 (2) ZLR 71 (H).

The position may now be accepted as settled in this jurisdiction that, unless empowered by law to do so, an inferior court, tribunal or other authority has no power to order the suspension of its own orders or judgments, and, further, that the noting of an appeal against the judgment or order of such a court, tribunal or other authority, in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.”

In light of section 14 of the Fiscal Appeal Court Act [Chapter 23:05], the noting of an appeal with the Fiscal Appeal Court did not suspend the decision of the Commissioner-General. I did not hear any contention that the Commissioner General directed the suspension of the order against the applicant pending the appeal noted….,.

1….,.

2….,.

3….,.

4. The noting of appeal to the Fiscal Appeal Court did not suspend the decision of the second respondent.

It is an established and general principle that once an appeal is noted; all proceedings are automatically stayed pending the determination of the appeal, unless leave is obtained to proceed with any consequence of the decision appealed against.

An application for leave to execute pending appeal is available because, by operation of the law, an appeal automatically suspends the decision appealed against and so it cannot be carried into execution. But, if despite the appeal, the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.

The application is premised on the principle that the court has an inherent power to control its own process. The overriding principle is the need to achieve real and substantial justice: see Santam Insurance Company Ltd v Paget [2] 1981 ZLR 132…,.

This was an application for leave to execute pending appeal....,. 

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 Chematron Products [Pvt] Ltd v Tenda Transport [Pvt] Ltd & Anor 2013 [2] ZLR 365 [H].

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…,.

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent's affidavit (Minister of Mines and Mining Development) aims at clarifying issues, he says. He acknowledges that the respondents' appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties' dispute to him. He confirms that the Disputes Committee is seized with the parties' case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant's statement, which is to the effect that it acquired mining rights of Makaha in 2012, cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent (Minister of Mines and Mining Development), showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashonaland East Province for resolution. The Director works under the supervision of the fourteenth respondent. The dispute which, in earnest, was between the applicant and the fourth respondent was decided in the applicant's favour.

The Director's ruling, which is dated 25 October 2016, reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) Ltd has no legal right over mining claims registered in favour of Prosper Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute….,. Milmath Securities should be allowed to work…,.”…,.

It is the statement of the applicant that the decision of the Director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It therefore moves the court for their eviction from the same.

The decision of the Director should, in my view, be read in its proper context.

An effortless reading of the same shows that the Director acknowledged the fifth respondent's title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth (Proper Machekera), and not the fourth (Earthrow Investments) respondent has title in Makaha.

It is for the mentioned reason, if for no other, that he stated that the fourth respondent (Earthrow Investments) has no legal right over mining claims which are registered in favour of the fifth respondent (Proper Machekera).

He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the Director's records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent (Proper Machekera). The fourth respondent (Earthrow Investments) does not.

It was by way of comparative analysis that he remained of the view that when the fourth respondent's case is compared with that of the applicant, the latter entity, which has title in Makaha, was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the Director's decision should be understood.

The applicant makes every effort to discredit the appeal which the first to the thirteenth respondents filed with the fourteenth respondent (Minister of Mines and Mining Development) against the Director's decision. It states that the appeal is defective for lack of locus standi on the part of the twelfth respondent who filed the same. He, it says, was not authorized by the fourth respondent which was involved in the dispute with it to appeal as he did. He, it alleges further, is not a director or an employee of the fourth respondent. He, it concludes, does not have the authority to appeal as he did. It states that the appeal does not, at any rate, suspend the decision of the Director.

The respondents' contrary statement is that their appeal is properly before the fourteenth respondent. They state, further, that the appeal suspends the decision of the Director.

Whether or not the appeal is defective, as the applicant would have me believe, is not for me to decide. I am not seized with the appeal. The fourteenth respondent (the Minister of Mines and Mining Development) remains seized with the same. He will decide that at his own time. The applicant's submission on the propriety or otherwise of the appeal is, therefore, misplaced.

What, however, I am called upon to decide is whether or not the appeal which the respondents filed with the fourteenth respondent (the Minister of Mines and Mining Development) suspends the decision of the Director.

If it does, the application cannot be granted. If it does not, and in the absence of such matters as should be considered in casu, nothing would stand in my way to grant the application as well as to order the eviction of the first to the thirteenth respondents from Makaha.

The principle which speaks to the suspension of the decision appealed against has advantages and disadvantages to the one or the other of the parties who appear before the court a quo. The principle is, in my view, a double-edged sword. It goes against the normally accepted statement which is to the effect that one cannot approbate and reprobate. It blows both hot and cold as it were. That is so as the appeal can be bona fide or mala fide. The principle, by and large, depends on the appellant's underlying reason for appealing.

A bona fide appeal occurs where the appellant who is not genuinely satisfied with the decision of the court a quo appeals the same. His aim and object would be to test the correctness of the decision, and, in the same breadth, attain justice for himself.

It stands to good reason that the decision of the court a quo should not be enforced until the appeal has been conclusively heard. The rationale for the same is simple. It is that, if the decision is enforced before the appeal is heard, the appeal which he files would be more academic than it assists in the attainment of real and substantial justice.

Justice, it is accepted, must not only be done but must be seen to be done.

With a bona fide appeal, therefore, the principle which insists that an appeal should, and does in fact, suspend the decision appealed against remains very sound law which should not be disturbed. It serves a very useful purpose. It allows the wheels of justice to turn slowly but surely for the proper administration of justice as well as for the parties' benefit.

At the other end of the scale is the case of a mala fide appellant.

He knows in his heart of hearts that his appeal would never see the light of day. He remains alive to the hopelessness of the appeal which he files. He sees some advantage if he appeals a sound decision properly grounded in law which the court a quo enters against him. He intends its suspension for his own ulterior reasons. He remains aware that the moment he appeals, the court a quo's decision which was entered against him remains suspended until the appeal is heard and determined. He, in the process, makes every effort to delay the day of reckoning which he knows will one day take effect notwithstanding the appeal. His appeal becomes more effective where the subject of the parties' dispute relates to property which is capable of being dissipated. He remains of the firm view that, during the period which extends from the date that he files his appeal to the date of its hearing, he will have reaped a lot from his adversary's property with probably no means of compensating the latter in the event of his appeal being dismissed for lack of merit.

This is a sad and very bad phenomenon which justice, unfortunately for the disadvantage party, has to go alone with.

A diligent bona fide litigant who suffers from the second described set of circumstances applies to the court a quo for leave to execute notwithstanding the appeal. The rules of court allow him the leeway. He has, however, to satisfy the court that his application has merit.

The court to which he applies for enforcement is, unfortunately for him, not infallible. It is manned by human beings who are not unnaturally immune to fallibility. They may not share his view in which case the undesirable situation which the mala fide appellant creates continues to rear its ugly head in the parties' case in an un-abetted manner.

The way forward in regard to this unnecessary, but very real, challenge which unscrupulous litigants are very much fond of remains unclear as well as undefined. Perhaps the drafters of the rules of courts of all levels require some re-think on this aspect. That is all the more so because bone fide litigants whose cases are unquestionably well decided should not continue to be held to ransom under the guise of the principle which is under consideration. The principle, which is otherwise good in substance, should be crafted in such a way that it is able to, as it were, separate the sheep from the goats.

In our jurisdiction, the Supreme Court pronounced itself clearly and unambiguously on the principle which is under consideration. It proceeded on the accepted common law practice which is to the effect that an automatic stay of execution upon the noting of an appeal is binding only to the extent that it relates to superior courts of inherent jurisdiction. These are the High Court and the Supreme Court. Reference is made in this regards to the pertinent remarks of CHIDYAUSIKU CJ who eloquently discussed the subject at hand in Associated Newspapers of Zimbabwe v Min of State for Information and Publicity & Ors 2005 (1) ZLR 222 (S)…, wherein he said:

“It is quite clear…, that the power of a court to order execution of its own judgment, despite the notice of an appeal, is founded in the common law doctrine of inherent jurisdiction. It is trite that only the superior courts enjoy inherent jurisdiction. In this country, these are the High Court and the Supreme Court. Courts created by statute do not have inherent jurisdiction, and, consequently, do not have power to order execution of their judgments unless such jurisdiction is conferred on them by statute.”…,.

GARWE JA clarified the matter further in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZLR…, wherein he remarked as follows:

“The position may now be accepted as settled in this jurisdiction that unless empowered by law to do so, an inferior court, tribunal or other authority has no power to order the suspension of its own orders or judgments, and, further, that the noting of an appeal against the judgment or order of such a court, tribunal or authority, in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.”…,.

It follows, from the above-cited dicta, that the respondents' appeal to the fourteenth respondent (the Minister of Mines and Mining Development) does not suspend the decision of the Director. That decision remains extant until it is varied or set aside by the fourteenth respondent. The respondents' statement, which was to the contrary effect is, therefore, misplaced.

The first to the thirteenth respondents' case would have crumpled to pieces if they relied on the appeal for their continued presence at Makaha. They cannot properly argue that the appeal which they filed suspends the decision of the Director, and, in the process, offers an avenue to them to remain at Makaha. The above decided case authorities negate their contention.