Cagar (Private) Limited and Others v National Railways of Zimbabwe Contributory Pension Fund and Another

The applicants sought a stay of execution of a default judgment granted in favour of the first respondent on 24 May 2017 in Case Number HC 8560/16. On 29 May 2017 the applicants filed an application in terms of Rule 449 to set aside that judgment. On 30 May 2017 they filed the instant urgent application seeking stay of execution. The default judgment had been granted following the applicants' failure to attend a pre-trial conference due to their mistaken belief that their attendance was not necessary as they were negotiating a possible settlement with the respondent. Their legal practitioner was in attendance. The underlying dispute concerned alleged outstanding rentals, which the applicants contested on the basis that the first applicant had vacated the premises and left the property occupied by persons who were paying rent directly to the first respondent.

• Whether the application for stay of execution was urgent
• Whether real and substantial justice demanded that execution of the judgment be stayed pending determination of the rescission application
• Whether the applicants had established special circumstances warranting a stay of execution

The provisional order was granted with amendments: (1) Execution of the judgment granted on 24 May 2017 in Case No. HC 8560/16 was stayed pending determination of the rescission application filed under Case No. HC 4748/17; (2) The respondent was ordered to pay costs of suit; (3) As interim relief, the first respondent was interdicted from attaching the applicants' goods or otherwise enforcing the order pending determination of the matter.

In applications for stay of execution, the applicant bears the onus to satisfy the court that special circumstances exist and that real and substantial justice demands suspension of execution. Where a default judgment is explained on reasonable grounds attributable to legal practitioner error, where the case on the merits has prospects of success, and where execution would cause irreparable prejudice to the applicant while delay would not prejudice the respondent who can still execute if the rescission fails, a stay of execution should be granted. The court has inherent power to control its own processes and will exercise this power where real and substantial justice so demands.

Zhou J made important observations regarding procedural compliance and drafting standards. The court criticized the failure to use the prescribed Form 29C format for draft provisional orders, warning that future non-compliance may result in penalties. The court also criticized the practice of filing prolix, argumentative founding affidavits that fail to tell a complete story and instead rely on annexed bundles of documents, stating that a founding affidavit must set out the case completely on its own with annexures only serving to verify averments. Additionally, the court criticized the increasingly common practice of legal practitioners raising points in limine regarding urgency as a matter of course without properly considering the merits of such objections, describing this as an abuse of the court process.

This case illustrates the proper application of the principles governing stay of execution applications in Zimbabwe. It reinforces that courts will exercise their inherent power to control their own processes where real and substantial justice demands it, particularly where there are reasonable prospects of success in a rescission application and where execution would cause irreparable prejudice. The judgment also serves as an important reminder to legal practitioners regarding compliance with prescribed forms in the High Court Rules and proper drafting of founding affidavits, with the court warning of potential future penalties for disregard of the rules.