Kershelmar Farms (Pvt) Ltd and Others v Mswelangubo Farms (Pvt) Ltd and Others

The applicants obtained judgment in their favour in HB 280/21, which found that the respondents had despoiled them by taking occupation of 145 hectares at Esidakeni Farm based on an offer letter without following due process for evicting the applicants who were in peaceful and undisturbed occupation. The judgment ordered the respondents' eviction on the basis they ought not to resort to self-help. The respondents noted an appeal to the Supreme Court (SCB 69/21), which had the effect of suspending the order in HB 280/21. The applicants then brought an urgent chamber application for leave to execute pending appeal, claiming urgency on the basis that they had crops at various stages of maturity requiring attention and constant irrigation, and that interruptions by the respondents would cause them to lose their crops. The respondents had occupied the disputed portion of land on 5 December 2021, and the application was heard in February 2022.

• Whether the application was fatally defective for using Form 25 instead of Form 23
• Whether the absence of a founding or supporting affidavit from the 3rd applicant rendered the application defective
• Whether the matter was urgent such that it warranted being heard on an urgent basis
• Whether execution pending appeal should be granted
• What test applies to determine urgency in applications for execution pending appeal

1. The point in limine that the application is not urgent is upheld. 2. The application is accordingly struck off the roll of urgent matters. 3. There shall be no order as to costs.

1. Rules of court should not be slavishly followed where there is substantial compliance and no prejudice to the other party - form should not triumph over substance. 2. In urgent chamber applications supported by a Certificate of Urgency, the use of Form 25 instead of Form 23 does not render the application defective where the respondent is properly served and able to participate fully. 3. Execution pending appeal is an extraordinary relief that requires careful consideration. 4. For a matter to be urgent, the harm suffered or threatened must require immediate redress because waiting for the ordinary pace of justice would result in irreversible loss of the right or legal interest being protected. 5. The considerations of urgency in an initial spoliation application differ from those in an application for execution pending appeal. 6. Commercial urgency must be assessed by evaluating the potential prejudice to the affected party and whether any subsequent relief would be hollow.

The court made observations that every litigant wishes to have their matter heard urgently, but courts must exercise their discretion judiciously to determine who deserves to jump the queue. The court also noted that the disputed issues regarding whether a holder of an offer letter has the right to resort to self-help without following due process were matters for the Supreme Court to determine on appeal, and had no bearing on the urgency of the present application. The court observed that punitive costs should only be awarded where there is conduct deserving of censure, and in this case, despite dismissing the application, the circumstances warranted no order as to costs.

This case is significant for clarifying the approach to procedural formalities in urgent applications and establishing the test for urgency in applications for execution pending appeal. It demonstrates that Zimbabwean courts will adopt a substance-over-form approach to procedural irregularities where no prejudice results, but will scrutinize claims of urgency carefully, particularly in applications seeking the extraordinary remedy of execution pending appeal. The judgment emphasizes that commercial urgency alone is insufficient without proof that delay would render any subsequent relief hollow or meaningless. The case also reinforces that the automatic suspensive effect of appeals should not be lightly overridden.