In October 2019, the first respondent (Katt Construction) obtained a default judgment against the applicant's ex-husband (Caven Gunha) for eviction from stand No. 4074 Simon Muzenda Housing Cooperative. The eviction order was granted based on Gunha's breach of a lease to buy agreement with the first respondent. At the time of the judgment, the applicant's marriage to Gunha had been terminated. The applicant was not served with the papers as she was not a party to the lease agreement. The applicant alleged that upon divorce, her ex-husband's rights in the property were ceded to her, though she provided no documentary proof of this cession. Following attempts to execute the judgment, the applicant sought a stay of execution pending determination of her application for rescission of the default judgment under case No. HCH 2167/24.
The application for stay of execution was dismissed with costs.
A stay of execution will only be granted where real and substantial justice requires it or where injustice would otherwise occur. The court will not grant a stay of execution pending an application for rescission where that application has no prospects of success. Under the doctrine of privity of contract, only parties to a contract can enforce its terms or be bound by its obligations; third parties cannot claim rights under a contract unless they are expressly included as beneficiaries or have been validly assigned rights. A person cannot cede or transfer rights which they themselves do not possess (nemo dat quod non habet). Where an applicant seeks a stay based on alleged property rights arising from a purported cession but provides no documentary evidence of such cession, and where the alleged cedent had no rights to cede, the application must fail.
The court observed that the execution of the judgment had already been delayed through orders made under case No. HC 5964/20 and HC 4900/18, and that the culmination of those matters in favour of the first respondent meant that the writ was ready for execution in order to observe the principle of finality to litigation. While the first respondent requested costs on an attorney-client scale on the basis that the application was an abuse of court process, the court granted costs on the ordinary scale, implicitly declining to characterize the application as sufficiently abusive to warrant the higher scale of costs. The court noted concerns about material non-disclosure and false statements by the applicant regarding background facts, but these points were not separately analyzed or relied upon as independent grounds for dismissal.
This case reinforces fundamental principles of Zimbabwean civil procedure and contract law, particularly: (1) the doctrine of privity of contract—that third parties cannot claim rights under contracts to which they are not parties unless expressly included or validly assigned rights; (2) the principle nemo dat quod non habet—that no one can transfer greater rights than they possess; (3) the stringent requirements for granting a stay of execution, which requires demonstration of real and substantial justice and that injustice would otherwise occur; and (4) that courts will not grant stays of execution where the underlying application (such as for rescission) has no reasonable prospects of success. The case serves as authority that mere assertions of property rights without documentary proof, especially when based on purported cessions by persons who themselves lacked rights, will not suffice to obtain interim relief.