Lourens Marthinus Botha Snr v Gwanda Rural District Council

The parties had entered into a joint venture agreement on 17 December 2007. A dispute arose and they proceeded to arbitration before Honourable P. Ncube. On 13 December 2017, an arbitral award was issued directing the respondent to pay the applicant $5,507,980.00 as compensation. The applicant then applied to the High Court under case number HB-151-18, HC 3273/17 for registration of the arbitral award in terms of Article 35 of the Model Law on International Commercial Arbitration, 1985. Despite vigorous opposition by the respondent, Mathonsi J granted the application and registered the arbitral award as an order of the court. On 18 June 2018, the respondent filed a notice of appeal to the Supreme Court seeking to set aside the judgment. The applicant then filed the current application seeking leave to execute the judgment pending the appeal, arguing that the respondent had no prospects of success, the grounds of appeal were without merit, and the appeal was filed merely to buy time.

• Whether the court should grant leave to execute a judgment pending an appeal to the Supreme Court
• The applicable principles for granting leave to execute pending appeal
• Whether the appeal was frivolous, vexatious or noted merely for purposes of delay
• Whether the prospects of success on appeal should be determinative of leave to execute
• The balance of hardship and potential for irreparable harm to the parties

The application for leave to execute pending appeal was dismissed with costs.

At common law, a decision of a lower court in respect of which an appeal has been noted cannot be executed upon, and can only be executed in exceptional cases after leave has been granted. The court has a wide discretion to grant or refuse leave to execute pending appeal, which must be exercised judiciously and with caution. In exercising this discretion, the court should determine what is just and equitable considering: (1) potentiality of irreparable harm to the appellant if leave is granted; (2) potentiality of irreparable harm to the respondent if leave is refused; (3) prospects of success on appeal; and (4) the balance of hardship. Leave to execute pending appeal should generally not be granted solely on the basis that the appellant has no prospects of success, as this requires the court to review its own judgment when it is functus officio. Prospects of success can only be determinative where the appeal is manifestly and wholly without merit, frivolous or vexatious, or has been noted not with bona fide intention but for indirect purposes such as delay or harassment. The right to appeal is fundamental and should not be rendered nugatory. Where a judgment sounds in money and no security de restitutio is offered, execution pending appeal may lead to irreparable harm if the appeal succeeds.

The court observed that in cases where the judgment sought to be executed sounds in money and the successful party has offered security de restitutio, this may balance the preponderance of equities and the court may in its discretion allow execution. The court also commented that counsel for both parties had essentially re-argued their cases on the merits, which is not the proper function of an application for leave to execute pending appeal - it is not the business of the court to hear once more a matter already argued and decided. The court noted that only the Supreme Court could determine whether the appeal before it was a nullity, not the High Court hearing the application for leave to execute. The court also made observations about the arguable issues on appeal, including the validity of the Joint Venture Agreement in light of Watson v Gilson Enterprises and the legal effect of setting aside the registration of an arbitral award on the underlying award itself under Articles 35 and 36 of the Model Law on International Commercial Arbitration 1985.

This case reinforces important principles in Zimbabwean civil procedure regarding execution of judgments pending appeal. It emphasizes the fundamental nature of the right to appeal and the general undesirability of granting leave to execute pending appeal. The judgment provides clear guidance on the factors courts must consider when exercising discretion in such applications, particularly emphasizing that prospects of success should only be considered where an appeal is manifestly frivolous and vexatious. The case illustrates the protective approach courts take toward preserving the meaningful exercise of appeal rights, particularly where large monetary judgments are involved and no security for restitution is offered. It also demonstrates judicial restraint in avoiding reviewing one's own judgment under the guise of assessing prospects of success on appeal.