Golden Ribbon Plant Hire (Pvt) Ltd v Trastar (Pvt) Ltd t/a Takataka Plant Hire

Applicant hired out equipment (an excavator and 2 operators) to respondent at US$100 per hour under a contract. Respondent breached the agreement and failed to pay. Applicant sued under HC 2491/14 for US$87,288.52. Respondent entered appearance to defend but failed to file a plea and was automatically barred. Default judgment was granted on 13 April 2015. Respondent applied for rescission under HC 2696/15, which was dismissed. Sheriff filed nulla bona return, leading to attachment of respondent's director's property. An interpleader under HC 2931/16 was granted in favour of applicant. Respondent's director negotiated a payment plan (US$20,000 on 28 August 2017, balance over 6 months) but failed to honour it. Respondent filed another application for rescission under HC 2307/17 and urgent application for stay of execution under HC 2314/17. Takuva J dismissed the stay application on 10 November 2017. Respondent appealed on 16 November 2017 (SC-954-17), which suspended execution. Applicant then brought this urgent application for leave to execute pending appeal.

• Whether the application for leave to execute pending appeal was urgent
• Whether leave to execute pending appeal should be granted
• Whether the appeal was frivolous or vexatious
• The balance of irreparable harm between the parties if leave to execute was granted or refused
• Whether the respondent had reasonable prospects of success on appeal

Leave granted to the applicant to execute the judgment granted in case number HC 2491/14 pending determination of the appeal noted by the respondent in case number SC-954/17.

In determining an application for leave to execute pending appeal, the court must exercise a wide discretion based on what is just and equitable in all circumstances, considering: (1) potentiality of irreparable harm to appellant if leave granted; (2) potentiality of irreparable harm to respondent if leave refused; (3) prospects of success on appeal, particularly whether the appeal is frivolous, vexatious or noted to gain time or harass; and (4) balance of hardship. Where a party has repeatedly and unsuccessfully sought to avoid execution through various procedural mechanisms, consents to owing a substantial portion of the judgment debt, and presents grounds of appeal that merely repeat previously rejected arguments, the appeal will be found to be frivolous and vexatious, warranting the grant of leave to execute pending appeal.

The court noted with approval Mathonsi J's characterization of the respondent's conduct as having 'all the hallmarks of a litigant who will do anything and say anything including the absurd only to avoid paying what is owed.' The court also observed that even if the Supreme Court found error in dismissing the stay application, such an order would be of academic interest only because the underlying rescission application had already been dismissed by Mathonsi J. The court commented that respondent's arguments were 'mutually exclusive' and that respondent was 'clutching at straws' and had 'tried every trick in the book' to avoid payment.

This case demonstrates the Zimbabwean courts' approach to applications for leave to execute pending appeal and their willingness to grant such leave where an appeal is frivolous, vexatious, or intended merely to delay execution. It illustrates judicial impatience with litigants who abuse court processes through repeated unsuccessful applications to avoid legitimate debt obligations. The case reinforces the principle that the noting of an appeal does not automatically prevent execution where the justice of the case requires it, particularly where there is a pattern of dilatory tactics and abuse of process.