Botton Amarture Winding v Cleminson & Plaskit (Pvt) Ltd and the Deputy Sheriff

The applicant and 1st respondent entered into a deed of settlement concerning outstanding rentals and rates for premises at No. 6 Cowden Road, Steeldale, Bulawayo, which was made a consent order by the High Court on 9 November 2017 (HC 763/17). The order required payment of $150,565.77 in outstanding rentals, $67,834.61 in outstanding rates, and $6,000.00 monthly rent from 1 September 2017, with $20,000.00 to be paid by 31 October 2017. The order provided that failure to comply would entitle the 1st respondent to the full amount and to evict the applicant. When the applicant failed to pay, the 1st respondent issued writs of ejectment and execution. The applicant then filed its first urgent application (HC 3276/16) to stay execution, which was granted provisionally by Makonese J on 15 December 2017 but discharged on 22 February 2018. The applicant noted an appeal to the Supreme Court (SC 155/18) and filed a second urgent application (HC 723/18) before Moyo J on 15 March 2018, which remained pending. The Deputy Sheriff executed the ejectment warrant on 9 April 2018, fully evicting the applicant. On 16 April 2018, the applicant filed this third urgent application seeking restoration to the premises, deliberately misleading the court by stating only that the premises were "locked up" rather than disclosing the full eviction.

• Whether the consent order of 9 November 2017 remained valid and enforceable despite the various interim applications and appeals filed by the applicant
• Whether a tenant who has been lawfully evicted pursuant to a court order can be restored to possession of the premises
• Whether the noting of an appeal against a judgment discharging a provisional order that stayed execution prevents the execution of the underlying consent order
• Whether the applicant's material non-disclosure of its eviction warranted dismissal of the application

The application was dismissed with costs on a legal practitioner and client scale (attorney-client scale).

A tenant who has been lawfully evicted from premises pursuant to a valid and enforceable court order cannot be restored to possession of those premises, even if the order may subsequently be found to be wrong. A consent order remains valid and enforceable until it is rescinded, varied, corrected, or successfully appealed against; the noting of an appeal against a judgment discharging a provisional order that stayed execution does not prevent execution of the underlying consent order. Material non-disclosure of vital facts in an urgent application, particularly where done deliberately to mislead the court, warrants dismissal of the application with punitive costs.

The court commented on the position that a provisional order, whether confirmed or discharged, "dies" on the return date, and even when confirmed it is the terms of the final order that take effect rather than the interim relief initially granted. However, Mathonsi J noted it was not necessary to pronounce definitively on this issue for purposes of the decision. The court also observed that the applicant appeared to be engaged in a pattern of filing successive urgent applications (three in total) to prevent execution of the consent order rather than directly challenging the order itself through proper legal channels.

This case reinforces critical principles in Zimbabwean law regarding: (1) the finality and enforceability of consent orders until properly challenged through recognized legal processes; (2) the binding precedent from Delco (Pvt) Ltd that lawful eviction pursuant to a court order cannot be reversed even if the order is subsequently found to be incorrect; (3) the duty of utmost good faith and full disclosure required of applicants in urgent applications; and (4) the court's willingness to impose punitive costs orders where material non-disclosures are intended to mislead the court. The judgment demonstrates the court's intolerance of attempts to frustrate the execution of valid court orders through successive interim applications while avoiding direct challenge to the underlying order.