Kingstone Bungare v Local Authorities Pension Fund and Sheriff of the High Court N.O.

The applicant was adjudged to have defaulted a Pre-trial Conference hearing on 10 April 2018 before Charewa J in HC 1122/14. The applicant alleged he arrived with his legal practitioner a minute before the hearing and found the judge's door closed. Despite knocking, no one opened. He saw the first respondent's representatives coming out and discovered a default judgment had already been granted. His defence was struck out and default judgment granted. The applicant filed for rescission on the basis he was not in wilful default. Phiri J dismissed the rescission application under HC 4106/18 on 6 November 2018 via ex tempore judgment. The applicant appealed to the Supreme Court under SC-895/18. On 5 March 2019, the first respondent obtained a writ of execution which was served on the applicant on 19 March 2019, prompting this urgent application for stay of execution pending the appeal.

• Whether the urgent chamber application was properly urgent or whether urgency was self-created
• Whether a stay of execution should be granted pending the finalization of the Supreme Court appeal
• Whether the applicant should have filed for stay of execution on or about 10 April 2018 when the default judgment was granted

The court granted the provisional order directing the 2nd Respondent (Sheriff) to stay execution of the default order under HC 1122/14 granted by Charewa J on 10 April 2018 and confirmed by Phiri J under HC-4106/18 pending the outcome of the Supreme Court Appeal noted under case number SCA-895/18. Leave was granted to the applicant's legal practitioners to effect service of the order on the respondents.

In an application for stay of execution pending appeal, urgency arises upon service of the writ of execution, not upon the granting of the original judgment being appealed. Where an applicant has filed an appeal and a writ of execution is served, a stay should be granted to prevent execution from rendering a potentially successful appeal brutum fulmen. The need to act for purposes of urgency in a stay application arises when the writ is served, as that is when the actual threat of execution materializes, not at the earlier stage when the underlying judgment was granted.

The court observed that if the applicant and his legal practitioner were indeed not allowed inside the judge's chambers a minute before the Pre-trial conference hearing, the appeal would enjoy high prospects of success. The court noted that without a copy of the ex tempore judgment by Phiri J dismissing the rescission application, it was difficult to fully assess the prospects of success on appeal. The court commented that while the first respondent argued damages could be claimed if execution proceeded and the appeal succeeded, this did not adequately protect the applicant's interests. The principle that an applicant must be given his day in court was emphasized.

This case demonstrates Zimbabwean courts' approach to stay of execution pending appeal and illustrates the principle that execution should not proceed where it would render a potential successful appeal nugatory (brutum fulmen). It clarifies when urgency arises in execution matters - the trigger is service of the writ, not the underlying judgment. The case also emphasizes the right to a day in court and protection of litigants' rights pending appellate review, particularly where there are questions about procedural fairness in the original default judgment.