Arosume Property Developments (Private) Limited and Others v Rhodian Photo and Another

This urgent chamber application arose from a default judgment granted in case HC 2258/21 on 21 July 2021. The applicants (Arosume Property Developments and Witness and Nyarai Mudungwe) sought a stay of execution of that order pending determination of an intended application for rescission of the default judgment. The default judgment in HC 2258/21 had nullified the second and third applicants' lease agreement for Stand No 194 of Carrick Creagh Estates and directed the second respondent (Minister of Local Government and Public Works) to ensure a lease agreement was signed in favor of the first respondent (Rhodian Photo). The applicants became aware of the default judgment on 11 August 2021. They could not immediately file the rescission application due to Covid-19 lockdown restrictions and Practice Direction 7 of 2021 which limited court operations. The first respondent opposed the application and raised several preliminary objections.

• Whether the application was urgent
• Whether there was material non-disclosure warranting dismissal
• Whether the second and third applicants were properly before the court given defects in their affidavits
• Whether the relief sought was defective
• Whether the court should grant a stay of execution pending a rescission application
• What constitutes special circumstances justifying stay of execution

The provisional order was granted in terms of the draft as amended. The first respondent was interdicted from interfering with the second and third applicants' occupation of Stand No 194 of Carrick Creagh Estates, and the applicants were ordered to file their application for rescission of judgment within the time prescribed (affected by subsequent Practice Directions).

The ratio decidendi is that: (1) A court has inherent power to grant stay of execution where real and substantial justice demands it, and the party seeking stay must satisfy the court that special circumstances exist (applying Mupini v Makoni); (2) Special circumstances warranting stay of execution exist where refusal would cause irreparable prejudice to the applicant if they ultimately succeed in their substantive application (here, rescission of judgment), while granting stay would cause only delay to the respondent; (3) Urgency in stay of execution applications must be determined based on when the need to act arose, which is when the order sought to be stayed was granted, not earlier procedural deadlines; (4) Technical defects in the form of court papers (such as incorrect headings on affidavits) may be condoned where the substance and capacity of the deponents is clear and justice demands it; (5) Information contained in affidavits properly annexed to founding papers constitutes disclosure even if not in the founding affidavit itself.

Zhou J made several obiter observations: (1) The court cautioned against "inattentive reliance on precedents" which led to the defective affidavit headings, describing such errors as "inexcusable"; (2) The court noted that in considering stay of execution pending rescission, "care must be taken to avoid delving much into the merits of the application for rescission of judgment. That application must be dealt with on its own merits"; (3) The court observed that Practice Direction 9 of 2021 replaced Practice Directions 6, 7 and 8 of 2021 and ended the prohibition on filing court applications, though this did not render the relief sought unnecessary as applicants must still be put on terms; (4) The court commented that the applicants' explanation, if proved and accepted, would amount to a reasonable explanation for default, and that their case on title warranted investigation citing Mdokwani v Shoniwa, though these were matters for determination in the rescission application itself.

This case is significant for several reasons: (1) It demonstrates the court's approach to technical defects in court papers, showing willingness to overlook procedural irregularities in the interests of justice where the substance is clear; (2) It clarifies when urgency arises in applications for stay of execution of default judgments, particularly in the context of Covid-19 restrictions on court operations; (3) It reaffirms and applies the principles from Mupini v Makoni regarding stay of execution, emphasizing that the court will exercise its inherent power to control its processes where real and substantial justice demands; (4) It illustrates the balance of prejudice test in stay applications, showing greater weight is given to potential irreparable harm versus mere delay; (5) It provides guidance on when supporting affidavits annexed to founding affidavits can cure alleged non-disclosure.