On 10 March 2014, the court granted an order requiring the applicant to pay the first respondent US$189,800 in installments. The parties subsequently entered into various payment arrangements in November 2014, February 2016, and February 2019, which included the applicant surrendering a truck to the first respondent, with fees generated from the truck's use to be offset against the debt. By letter dated 7 February 2019, the first respondent made clear that the payment arrangement would subsist for a maximum of 18 months (expiring 31 August 2019), after which execution would proceed if the debt was not fully liquidated. The outstanding balance as of 1 August 2019 was US$173,882.71. When the debt was not cleared by the deadline, first respondent issued a writ of execution and the Deputy Sheriff attached applicant's Marcopolo Bus. On 8 November 2019, the applicant brought an urgent application seeking to stay execution, claiming the debt had been extinguished and requesting an accounting for the truck's use.
The application was dismissed with costs on an attorney-client scale.
The binding legal principle established is that an applicant seeking an interlocutory interdict must establish at minimum a prima facie right, albeit one admitting of some doubt. This is a threshold test that must be satisfied before the court's discretion to grant interim relief is engaged. Without establishing a prima facie right, the court cannot proceed to consider the other requirements for an interdict (irreparable harm, balance of convenience, and absence of alternative remedy). Where a judgment creditor has a valid judgment and the debtor has not discharged the debt despite agreed payment arrangements, no basis exists for the court to interfere with the creditor's right to execute that judgment. The existence of a right is a matter of substantive law, while whether that right is clearly established is a matter of evidence, and an applicant must prove the right on a balance of probabilities.
The court observed that the application appeared to be nothing more than a belated attempt to postpone the date of reckoning. The court noted with disapproval that the applicant chose to only disclose correspondence and documentation that it thought supported its case while leaving out other documents in its possession which showed it had not discharged its indebtedness. The court commented that the applicant must have appreciated that on the correct facts, the application was doomed to fail. The court also remarked that costs on an attorney-client scale are warranted to ensure full compensation to a successful litigant where an application is instituted without cause, so that the respondent is not put out of pocket.
This case reinforces fundamental principles regarding interlocutory interdicts in Zimbabwean law, particularly emphasizing that the establishment of a prima facie right is a threshold requirement without which the court's discretion to grant interim relief is not engaged. It demonstrates the court's approach to applications seeking to stay execution of valid judgments and illustrates that parties cannot avoid execution by making unsubstantiated claims of debt extinction while selectively disclosing evidence. The case also confirms that costs on an attorney-client scale are appropriate where applications are instituted without proper factual foundation and based on manifestly incorrect facts, serving as a deterrent against frivolous applications designed to delay enforcement of legitimate judgments.