Apostolic Faith Mission in Zimbabwe v Cossam Chiangwa

The applicant (Apostolic Faith Mission in Zimbabwe) obtained a spoliation order on 10 November 2021 under HC 5549/21 against the respondent (Cossam Chiangwa) for dispossession of church premises. The respondent had noted an appeal against the spoliation order (SC 433/21), which automatically suspended execution. The applicant then sought leave to execute the spoliation order pending the appeal. The background involved a church leadership wrangle resolved by the Supreme Court in favor of the applicant's faction. The respondent had left and formed his own church but returned on 10-11 October 2021 and forcibly took control of the premises. Before the execution application was heard, the respondent raised a preliminary point seeking referral of constitutional questions to the Constitutional Court under s 175(4) of the Constitution, challenging whether the High Court's common law jurisdiction to order execution pending appeal was constitutional.

• Whether the High Court's common law jurisdiction to order execution pending appeal is consistent with the court hierarchy established in s 162 of the Constitution
• Whether a lower court determining prospects of success of an appeal already before a superior court violates the mandatory duty of impartiality under s 164 of the Constitution
• Whether execution pending appeal violates the right to a fair hearing under s 69(2) read with s 3(1)(b) of the Constitution
• Whether execution pending appeal violates the right of access to courts under s 69(3) read with s 3(1)(b) of the Constitution
• Whether the application for referral to the Constitutional Court was frivolous and vexatious
• Whether leave to execute the spoliation order pending appeal should be granted applying the principles from Netone Cellular (Pvt) Ltd v Netone Employees
• Whether the grounds of appeal against the spoliation order had prospects of success

1. The application for leave to execute the judgment granted on 10 November 2021 (HH 626-2021) pending appeal (SC 433/2021) was granted. 2. The applicant was granted leave to carry the spoliation order into execution notwithstanding the appeal. 3. Costs of the application to follow the outcome of the appeal in SC 433/21.

The High Court's common law jurisdiction to order execution of its judgment pending an appeal already pending in the Supreme Court is constitutional and does not violate: (1) the hierarchy of courts under s 162 of the Constitution, as the Supreme Court retains ultimate unfettered authority to decide the appeal on its merits regardless of whether execution has been permitted; (2) the duty of judicial impartiality under s 164, as a single High Court judge assessing prospects of success for execution purposes cannot influence three Supreme Court judges deciding the appeal; (3) the right to a fair hearing under s 69(2), as the appellant still has full opportunity to present their case on appeal; or (4) the right of access to courts under s 69(3). The power to grant execution pending appeal serves the legitimate purpose of preventing abuse of the appeal process through frivolous appeals noted to buy time or harass the successful party. Each application for execution pending appeal must be determined contextually based on its specific facts, applying the principles established in Netone Cellular (consideration of irreparable harm to both parties, prospects of success on appeal, whether the appeal is frivolous or vexatious, and balance of hardship).

The court observed that there is nothing wrong in ordering enforcement during the pendency of an appeal in factual situations which may make suspension impractical or undesirable, though the right to appeal is generally preserved and suspension of execution is not easily interfered with. The court noted that arguments for or against a position are created by lawyers all the time as part of their duty to clients, but this does not mean the purposes for which such arguments are advanced are not frivolous or vexatious. The court commented that allowing a lower court to determine whether a judgment should be enforced pending appeal is a way of dealing with frivolous appeals. The court also noted that applications for execution always engage the facts and are contextual, requiring analysis of the totality of circumstances. The court observed that generalized arguments that deliberately skirt the context of each case cannot be a basis for creating an imagined constitutional crisis.

This case affirms the constitutionality of the common law jurisdiction of the High Court to grant execution pending appeal under the Constitution of Zimbabwe 2013. It clarifies that permitting execution pending appeal does not violate constitutional principles of court hierarchy (s 162), judicial impartiality (s 164), the right to a fair hearing (s 69(2)), or access to courts (s 69(3)). The judgment reinforces that the power to grant execution pending appeal is an important mechanism to prevent abuse of the appeal process and to deal with frivolous appeals noted merely to buy time or harass the successful party. The case demonstrates that applications for execution pending appeal must be assessed contextually based on the specific facts and circumstances of each case, applying the established Netone Cellular principles. It also provides guidance on when applications for constitutional referral may be dismissed as frivolous or vexatious, particularly when they involve generalized non-contextual arguments that create an imagined constitutional crisis.