On 11 November 2020, the first respondent obtained judgment against the applicant under case number HC 3148/14. The applicant appealed this judgment on 23 November 2020 under case number SC 514/20, filing its notice and grounds of appeal and serving the first respondent on the same day. Despite the noting of the appeal, on 24 November 2020, the Sheriff (second respondent), acting on instructions of the first respondent, attached and took into execution the movable goods of the applicant. The applicant wrote to the Sheriff on 30 November 2020 advising him of the appeal and the case number, but the Sheriff ignored this letter and on 3 December 2020 removed the applicant's movable goods. On 7 December 2020, the applicant filed an urgent chamber application seeking suspension of execution and return of the attached property pending determination of the appeal.
The application was granted as prayed in the amended draft order: (1) Pending the determination of SC 514/20, the execution of the order issued under HC 3148/14 was suspended; (2) The second respondent was ordered to return the applicant's attached property within seven days at his own expense.
At common law, the noting of an appeal automatically suspends execution of the judgment appealed against. Execution cannot proceed on an appealed judgment except with special leave of the court which granted the judgment. To obtain such leave, the judgment creditor must make a special application showing that the appeal is merely a delaying tactic. The Sheriff, as an officer of the court, must not act in a 'robot-like' or 'hammer-like' manner but must exercise circumspection and verify relevant information when put on notice of matters affecting the validity of execution, such as the noting of an appeal.
The court made strong obiter observations criticizing the conduct of both respondents. Regarding the first respondent, the court noted he was not an ordinary litigant but a practicing legal practitioner, Senior Partner, Member of Parliament for Mudzi South Constituency, and chairperson of the Parliamentary Legal Committee. With these credentials, his decision to proceed with execution despite knowledge of the appeal showed 'callous disdain of the law'. The court observed that the Sheriff, like the court itself, should have recourse to court processes and records bearing on his work, particularly when provided with a case number. The court warned that 'it would be a sad day for the administration of justice' if the Sheriff were allowed to perform his functions mechanically without adopting a cautious approach when circumstances warrant it. The Sheriff must maintain balance and not appear to take sides with any party, as he is first and foremost an officer of the court, not an agent of the litigants.
This case reaffirms the fundamental principle of Zimbabwean (and South African) civil procedure that the noting of an appeal automatically suspends execution of the judgment appealed against at common law. It emphasizes that execution can only proceed with special leave of court, and that disregarding this principle constitutes a serious violation of procedural law. The judgment also provides important guidance on the role and duties of the Sheriff as an officer of the court, emphasizing that the Sheriff must not act mechanically but should verify claims and maintain impartiality. The case is significant for condemning deliberate disregard of procedural law even by senior legal practitioners, and for affirming that Sheriffs must exercise independent judgment and verify matters when put on notice of potential irregularities.