The respondents (Gunns) instituted action in the Magistrates' Court seeking eviction of the appellant (Tommy) and payment of arrear rates in respect of immovable property known as 4 Clocolon Road, Burnside, Bulawayo. The 1st respondent was the registered owner of the property. The appellant had been in occupation of the property since 2004 and incurred rates arrears amounting to US$1,500 as at 4th December 2016. The appellant defended the matter but failed, along with her legal practitioner, to attend court on the date of the pre-trial conference. The respondents obtained leave to file an application to strike out the appellant's defence, which was granted. The appellant appealed against the striking off of her defence. The respondents then filed an application for leave to execute pending appeal, which was granted. The appellant noted an appeal against the order granting leave to execute pending appeal under case number HCA 15/18.
The appeal was dismissed with costs.
No appeal lies against an order granting leave to execute pending appeal as such an order is interlocutory in nature and does not have a final or definitive effect on the main appeal. An order for leave to execute pending appeal does not give a final determination of the matter and is therefore not appealable.
The court observed that the appeal was hopelessly without merit and a gross abuse of court process. The court noted that the appellant had raised spurious defences and sought to cling to the property at all costs, and that the appeal was frivolous and only meant to delay execution of a judgment properly obtained. The court also commented that the trial magistrate had correctly found that the respondents would suffer irreparable harm by the continued occupation of the premises by the appellant.
This case reinforces the well-established principle in Zimbabwean civil procedure that orders granting leave to execute pending appeal are interlocutory in nature and not appealable. It serves as a reminder that appeals against such orders are invalid as they do not have a final or definitive effect on the main appeal. The case also illustrates the court's willingness to dismiss appeals that are frivolous and constitute an abuse of court process, particularly where they are designed merely to delay the execution of properly obtained judgments.