Farai Marume v Tonderai Gwarada and Tenda Transport Service (Pvt) Ltd and Enerst Taurayi

On 15 April 2010 at about 1900 hours along Chimanimani Road in Mutare, a Mercedes Benz motor vehicle belonging to the third respondent and being driven by the first respondent collided with a commuter omnibus belonging to the applicant and being driven by Moreblessing Magweka, causing damage to the omnibus. The applicant sued for damages for repair costs ($6,264.75) and loss of business ($17,840.00), alleging the collision was caused by the negligence of the first respondent acting within the course and scope of his employment by the second respondent. The applicant also sought to hold the third respondent liable on the basis that he was the director and CEO of the second respondent who had authorized the first respondent to drive his vehicle despite having no valid driver's licence. KARWI J issued judgment on 21 March 2012 in favour of the applicant against all three respondents jointly and severally. The respondents noted an appeal to the Supreme Court (SC 95/12) which was yet to be determined. The applicant then applied for leave to execute the judgment pending appeal, believing the appeal was noted merely to gain time.

• Whether leave to execute pending appeal should be granted
• Whether the appeal was noted bona fide to test the correctness of the judgment or merely to gain time or harass the successful party
• Whether granting execution would cause irreparable harm to the appellants
• Whether refusing execution would cause irreparable harm to the respondent (applicant in the execution application)
• What factors should guide the court's discretion in applications for leave to execute pending appeal

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

An appellant's absolute right to appeal must be upheld at all times unless it is clear to the court that the appeal has been noted not with the genuine intention of testing the correctness of the judgment appealed against and that execution pending appeal will not have the effect of defeating the appellant's absolute right. In exercising discretion on applications for leave to execute pending appeal, the court must determine what is just and equitable considering: (1) potentiality of irreparable harm to the appellant if execution is granted; (2) potentiality of irreparable harm to the respondent if execution is refused; (3) prospects of success on appeal and whether the appeal is frivolous, vexatious or noted to gain time or harass; and (4) the balance of hardship. Where the appeal raises pertinent legal issues and execution would render the appeal nugatory by disposing of property, while delay in execution would not cause irreparable harm to the judgment creditor, leave to execute should be refused.

The court noted that the original trial judgment by KARWI J was silent on the liability of the third respondent who was nevertheless ordered to pay damages, suggesting a potential issue with that judgment. The court also observed that it had thoroughly read the judgment and grounds of appeal and found that the respondents raised "very pertinent issues relating to vicarious liability and the quantum of damages," implying some sympathy with the respondents' position on appeal, though this was not determinative. The court expressed agreement with the observation that an application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success, especially where execution would defeat the whole object of the appeal.

This case affirms the fundamental principle in Zimbabwean civil procedure that an appellant has an absolute right to appeal and to test the correctness of a lower court's decision before being called upon to satisfy the judgment. The case demonstrates the court's reluctance to interfere with this absolute right except in clear cases where the appeal is not bona fide. It provides guidance on the application of the South Cape Corporation principles in the Zimbabwean context and emphasizes that execution pending appeal should generally not be granted where it would render the appeal nugatory, even where the respondent has been waiting for years to enjoy the fruits of judgment. The case also illustrates the court's willingness to deprive even a successful party of costs where they have been tardy in prosecuting their case.