Edward Mark Warhurst N.O v Jacobus Kotze Carstens

This was an urgent application for leave to execute pending appeal. The applicant was appointed as judicial manager of Rolldice Mining Services (Pvt) Ltd. In an earlier judgment (HH 424-21, HC 3646/21), an interim order was granted directing the first respondent (former employee of the company who had been dismissed) to surrender the books of account, gold and assets of Rolldice Mining Services (Pvt) Ltd to the applicant and barring him from accessing Gloy Mine or any business premises of the company. The first respondent noted an appeal to the Supreme Court against the interim order on seven grounds, including that he owned the mining claims and house, that the matter was lis pendens, that there was non-joinder of the Master, issues with delegation, and that the order offended the Gold Trade Act. The first respondent had already been found in labour disciplinary proceedings to have misappropriated company funds. He produced an unsigned Notarial Special Covering Bond suggesting he intended to place company assets under a bond.

• Whether leave to execute pending appeal should be granted
• What are the requirements for granting leave to execute pending appeal
• Whether the first respondent had reasonable prospects of success on appeal
• Whether the appeal was frivolous and vexatious
• The balance of hardship and potential irreparable harm to either party
• Whether an appeal against an interim/provisional order requires leave

1. Leave was granted to the applicant to execute the operative order granted in HC 3646/21 under judgment HH 421-21 pending the appeal noted by the first respondent to the Supreme Court in case number SC 301/21. 2. The first respondent was ordered to pay costs.

At common law, the noting of an appeal suspends the operation of a judgment, but the court granting the judgment has inherent jurisdiction to order execution despite the noting of an appeal. In determining whether to grant leave to execute pending appeal, the court must exercise a wide discretion and consider what is just and equitable having regard to: (i) potential for irreparable harm to the appellant if leave is granted; (ii) potential for irreparable harm to the respondent if leave is denied; (iii) the balance of hardship or convenience; and (iv) the prospects of success on appeal, including whether the appeal is frivolous, vexatious or not bona fide. The proper approach is to start with prospects of success on appeal. Where there is very little prospect of success and the appeal appears to be filed solely to frustrate execution, leave to execute pending appeal should be granted. An order granting leave to execute pending appeal is itself interlocutory and requires leave to appeal.

The court made obiter observations that: (1) The application to execute pending appeal must be viewed from the background of the Constitution, particularly sections 56(1) (equality before the law) and 69 (right to a fair hearing), as granting such an application may infringe the respondent's rights by rendering their appeal an academic exercise. (2) A point of law may be raised for the first time on appeal or in any matter provided it does not cause prejudice, and provided it is fatal to one or more contentions of the other party and is dispositive of the whole or part of the appeal. (3) The court noted that the issue of whether the first respondent could appeal against an interlocutory order without leave could only be dealt with by the Supreme Court. (4) The court observed that non-joinder is not fatal to a cause or matter under Order 13 rule 87(1) of the repealed High Court Rules 1971.

This case is significant for reaffirming and applying the established principles governing applications for leave to execute pending appeal in Zimbabwe. It demonstrates the court's approach to examining prospects of success on appeal by scrutinizing each ground of appeal. It also illustrates the protection afforded to judicial managers in insolvency proceedings and the courts' willingness to prevent frustration of orders through frivolous appeals. The case confirms that provisional/interim orders are interlocutory in nature and that appeals against such orders require leave. It also shows the court's approach to balancing hardship between parties and the importance of preserving company assets in the context of judicial management.