The respondents were tenants of the appellant. In April 2015, the appellant sued for cancellation of the lease, ejectment, arrear rentals of $1,104, and holding over damages. The parties settled at trial with an order by consent granted on 16 August 2016, requiring the respondents to pay $7,285 in monthly instalments of $700 starting end of August 2016. The order provided that if an instalment was not paid on the due date, the whole amount would become due and the respondents would be evicted forthwith. The respondents did not pay the first instalment by end of August 2016. On 6 September 2016, the appellant issued a warrant of ejectment and execution without notice to the respondents. On 3 October 2016, the messenger of court served the warrant and attached property. The respondents filed an ex parte application for stay of execution on 7 October 2016, which was granted. The respondents alleged they failed to pay on time because the appellant had not availed its banking details, which were only provided after lawyers intervened. They made two payments on 15 and 30 September 2016 totaling $1,906. On 10 November 2016, the magistrate confirmed the rule nisi staying the warrant, but ordered costs against the respondents.
The appeal was dismissed with costs.
A court has inherent power to control its own process and may grant a stay of execution based on considerations of real and substantial justice. A warrant of ejectment and execution cannot be issued without notice to the respondent and without proper proof that the conditions for its issuance have been met, even when enforcing a consent order. Where a consent order is not itself an eviction order but merely provides that eviction may follow upon default, the creditor must follow proper procedure to prove the default before a warrant can issue. An appellate court will not interfere with a lower court's exercise of discretion to grant a stay of execution unless it is shown that the discretion was exercised injudiciously, capriciously, upon a wrong principle, or that extraneous or irrelevant considerations influenced the decision, or that the decision was so grossly unreasonable as to defy logic.
The court observed that the order by consent was very loosely worded and had not been thought through properly. The court suggested that a typical acceleration clause should read something like: 'In the event that an instalment remains outstanding beyond the due date, then the entire balance outstanding at the time of the default will immediately become due and payable, and the creditor shall have the right, without notice to the debtor, to make a chamber application for a default judgment and to issue a warrant of ejectment and execution against property.' The court also noted that while the respondents' reasons for failing to pay on time seemed manifestly tenuous and lacked specifics, the appellant's opposing affidavit was worse, being merely argumentative, repetitive and consisting of unhelpful syllogisms. The court observed that facts are not proved through syllogism or deductive reasoning. The court also noted that while the magistrate could have been more elaborate with its reasons for judgment, such shortcoming was not so fundamental as to make the decision impeachable.
This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the requirement of procedural fairness before issuing warrants of execution, particularly the need for notice to the affected party and proof of default; (2) the inherent power of courts to control their own processes and grant stays of execution based on real and substantial justice; (3) the high threshold for appellate interference with a lower court's exercise of discretion in granting stays of execution; and (4) the importance of properly drafting consent orders to include clear acceleration clauses and procedural mechanisms for enforcement. The case serves as a reminder that creditors cannot bypass procedural requirements even when enforcing consent orders.