Ambassador Chimonyo v Route Toute BV and Others

Fangudu farm was acquired from the respondents by the fourth respondent (Minister of Lands and Rural Resettlement). A portion of the farm was allocated to the applicant (Ambassador Chimonyo). While a dispute regarding the acquisition was ongoing, the applicant moved onto the farm. The respondents obtained a spoliation order in case HC 7170/06, which was confirmed by Patel J in judgment HH 128/09 on 21 December 2009. After the provisional order, the applicant moved out but subsequently persons acting on his authority reoccupied the farm. This led to a second spoliation order granted by Karwi J on 5 January 2010 in case HC 6541/09. The applicant contended that process for the second spoliation order was not properly served on him as he was based in Tanzania as Zimbabwean Ambassador, and service was instead made on the second respondent who had no mandate to accept service on his behalf.

• Whether the application and notice of set down leading to the default judgment were properly served on the applicant in accordance with the High Court Rules
• Whether the applicant had prospects of success in seeking rescission of the default judgment based on the defence of illegality in spoliation matters
• Whether real and substantial justice demanded a stay of execution of the default judgment
• Whether unlawful occupation can constitute a defence to a claim for mandament van spolie

The application was granted. The court ordered: (a) The operation and execution of the default order handed down by Karwi J in case number HC 6541/09 be stayed pending determination of the matter; (b) The applicant shall file his application for rescission of judgment granted in case number HC 6541/09 within seven days of the granting of this order.

The binding legal principles established are: (1) The court has inherent power to control its own process and procedures and may, in the exercise of wide discretion, stay execution where real and substantial justice so demands; (2) Process must be properly served in accordance with Order 5 Rule 39(2) of the High Court Rules - service on a ministry when the applicant is an ambassador stationed abroad, rather than on the applicant personally or at his residence/employment, does not constitute proper service; (3) Where there is a divergence of judicial authority on a point of law (such as whether unlawful occupation can be a defence to spoliation), an applicant cannot be said to have no prospects of success in seeking rescission of a default judgment based on that point of law; (4) The onus rests on the party seeking a stay to satisfy the court that special circumstances exist or that injustice and irreparable harm will be occasioned if relief is not granted.

The court observed that service of the application on the applicant's employees at the farm would have sufficed for proper service. The court also noted that respondents' counsel attempted to serve the applicant's legal practitioners "out of abundance of caution" but the offices were closed, and there had been no indication from applicant's counsel that he had instructions to accept service. The court further commented that the rights of the parties to the farm in question were "evenly balanced" given the uncertainty in the law regarding spoliation and unlawful occupation.

This case illustrates the Zimbabwean High Court's approach to stay of execution applications, particularly in the context of land disputes arising from land acquisition and redistribution. It demonstrates the court's willingness to exercise its inherent jurisdiction to control its own processes where service is defective and where there is uncertainty in the law. The case also highlights the ongoing judicial uncertainty regarding whether unlawful occupation constitutes a defence to spoliation, an issue noted by the Chief Justice in Nyasha Chikafu. The judgment is significant in civil procedure for its application of the principles governing stay of execution and the requirements of proper service of process.