Batore Import & Export (Pvt) Ltd v Bayswater (Pvt) Ltd and Messenger of Court

The applicant sought an urgent stay of execution of a magistrates court judgment dated 7 August 2014 granted in default in favor of the first respondent, for eviction from shop number 7, 83 Kaguvi Street, Harare and payment of $4,940.00 in arrear rentals. Execution was levied following service of a warrant of execution and notice of attachment on 17 October 2014. The applicant, through its managing director Admire Tore, claimed it had never received summons, was not in rent arrears, and that the first respondent had not obtained leave to execute pending appeal. However, evidence revealed that: (1) the applicant had been served and had entered appearance to defend through legal counsel Messrs Manase and Manase on 19 May 2014; (2) it received notice of eviction on 22 August 2014, giving it 26 days notice before removal; (3) it had admitted rent arrears of $13,000.00 in correspondence and meetings; and (4) leave to execute pending appeal had been granted by consent on 14 October 2014 with costs on a legal practitioner and client scale.

• Whether the applicant was entitled to a stay of execution based on its allegations
• Whether material non-disclosure and falsehoods in an urgent application disentitle an applicant to relief
• Whether an appeal against dismissal of a rescission application suspends the underlying default judgment
• What the consequences should be for dishonest conduct in urgent applications

The application was dismissed with costs on a legal practitioner and client scale.

The binding legal principles established are: (1) Applicants in urgent applications, whether ex parte or otherwise, must observe the utmost good faith and disclose all facts relevant to the matter which have a bearing on the outcome; (2) An application based on falsehood, half-truths, and material non-disclosure cannot succeed and will be dismissed; (3) An appeal against the dismissal of a rescission of judgment application does not suspend or affect the underlying default judgment which was sought to be rescinded, in the absence of a court order to that effect; (4) Where an applicant acts with mala fides or dishonesty in misleading the court, punitive costs on a legal practitioner and client scale are warranted as a seal of the court's disapproval.

Mathonsi J made several obiter observations expressing concern about the increasing trend of debtors approaching the court seeking stays of execution without any proper basis, describing it as an "unacceptable abuse of process." The judge noted it is "amazing how an applicant seeking relief from a court of law by urgent application could possibly anchor such application on falsehood, half-truths, mendacious and outrightly dishonest assertions and still hope to obtain relief from the court." The judge also commented that it is "becoming in vogue at the moment for litigants who find themselves with execution being levied against their property to invariably approach this court seeking a stay of that execution even where there is not the slightest basis upon which execution can be stayed." The judge further observed that "it may well be that in seeking leave to execute pending appeal, which it obtained by consent, the first respondent was engaging in fruitless activity and superfluity," suggesting that such leave may not have been necessary given that the default judgment remained intact and the appeal was only against dismissal of the rescission application.

This case is significant in Zimbabwean jurisprudence as it reinforces the strict duty of candor and good faith required from applicants in urgent applications. It serves as a strong deterrent against the abuse of court processes through dishonest applications seeking to delay execution of lawful judgments. The case illustrates the court's willingness to impose punitive costs where litigants engage in material non-disclosure and make false statements in an attempt to obtain undeserved relief. It also clarifies that an appeal against dismissal of a rescission application does not suspend the underlying default judgment sought to be rescinded.