Common Vision Housing Consortium v Johane Marange Apostolic Church and Others

The applicant (Common Vision Housing Consortium) had obtained a court order in HC 11845/16 on 25 July 2018, which included a declaration that the allocation and sale of stands 19751-19793 Budiriro Township to its member cooperatives by the City of Harare was legally binding, and ordered the first respondent (Johane Marange Apostolic Church) to demolish a brick and mortar wall that encroached on the allocated stands. On 7 August 2018, the first respondent noted an appeal against the portion of the judgment relating to the demolition order. The applicant then applied for leave to execute the judgment pending the determination of the appeal. There were conflicting positions from the City of Harare regarding whether the wall actually encroached onto the applicant's stands - one letter from December 2015 confirmed encroachment, while another from November 2016 requested the first respondent to accommodate the applicant's members on its complex.

• Whether leave to execute a judgment pending appeal should be granted
• What factors should be considered when exercising discretion to grant or refuse leave to execute pending appeal
• Whether the appeal has prospects of success
• Whether irreparable harm would be caused to either party if leave is granted or refused
• Where the balance of convenience lies between the parties

The application for leave to execute pending appeal was dismissed, with each party ordered to bear its own costs.

When considering an application for leave to execute pending appeal, the court must exercise its wide discretion by determining what is just and equitable in all circumstances, having regard to: (1) the potentiality of irreparable harm to the appellant if leave is granted; (2) the potentiality of irreparable harm to the respondent if leave is refused; (3) the prospects of success on appeal (whether the appeal raises arguable matters and is not frivolous, vexatious or noted for indirect purposes); and (4) the balance of hardship or convenience where both parties face potential irreparable harm. An appeal has prospects of success for these purposes if it raises matters which make it arguable and does not present as a predictable failure, even if ultimate success is uncertain. The balance of convenience favours refusing leave to execute where the prejudice from execution would be more difficult to repair than the prejudice from delay.

The court made observations regarding costs in interlocutory applications, noting that where both parties have been placed in a predicament by a third party's failure to clarify the factual position, and where the application is not groundless, it may be fair to order each party to bear its own costs rather than making the usual costs order. The court also noted that the City of Harare had elected to abide by the court's decision in both the main application and the interlocutory application, failing to provide clarity on the crucial factual issue of the location of the stands in relation to the wall.

This case demonstrates the application of established principles governing leave to execute pending appeal in Zimbabwean law. It illustrates how courts exercise their discretion by balancing multiple factors including prospects of success, potential prejudice to both parties, and the balance of convenience. The judgment is significant for clarifying that 'prospects of success' for purposes of leave to execute does not require the appeal to be likely to succeed, but merely that it raises arguable matters and is not frivolous or vexatious. The case also shows judicial flexibility on costs where parties are prejudiced by the actions or omissions of third parties (in this case, the local authority's conflicting positions).