Maxwell Matsvimbo Sibanda and Gladys Sibanda v Martin Ndoro and Mercy Ndoro and Messenger of Court

The appellants (husband and wife) were tenants renting premises at No. 593 Prince Road, Borrowdale Brooke, Harare from the respondents. The respondents obtained an eviction order against the appellants. The appellants then filed three applications before the Magistrates Court: for condonation for late filing of an application for review, review of taxation of costs (in the sum of $631,000.00), and stay of execution of the eviction order. On 30 September 2020, the Magistrates Court dismissed all three applications, finding them to be frivolous, vexatious, meant to frustrate the respondents, and an abuse of court process. The appellants, acting in person, appealed to the High Court. By the time of the appeal hearing, execution had already been effected and the appellants had been evicted from the premises. The appellants had also previously appealed in another matter (CIV 'A' 84/20) which was dismissed for default, and their application for rescission was also dismissed.

• Whether the Magistrates Court erred in dismissing the application for stay of execution pending appeal
• Whether the Magistrates Court erred in dismissing the application for condonation for late filing
• Whether the Magistrates Court erred in dismissing the application for review of taxation
• Whether the matters were res judicata based on earlier judgments
• Whether the taxation exceeded the Magistrates Court's jurisdictional limit
• Whether the appeal had been overtaken by events given that eviction had already occurred

The appeal was dismissed with costs on a legal practitioner and client scale.

Where a lower court has correctly found that multiple applications filed by a party are frivolous, vexatious, meant to frustrate the opposing party and constitute an abuse of court process, an appellate court will not interfere with such finding. Further, an appeal will be dismissed as having been overtaken by events where the execution of the order being appealed against has already been carried out and the appellant has been evicted from the premises in question, rendering the appeal academic.

The court observed that the first appellant was not being candid with the court when he applied for postponement sine die, as he failed to disclose that the related appeal he referenced had already been dismissed for default and his rescission application had also been dismissed. The court also noted, in the interest of justice and recognizing that the appellants were self-actors (litigants in person), it allowed them to address the court despite their grounds of appeal being argumentative and not in compliance with the High Court Rules 2021.

This case illustrates the Zimbabwean courts' approach to dealing with applications that are found to be frivolous, vexatious and constitute an abuse of court process. It demonstrates that courts will not entertain serial applications designed to frustrate legitimate creditors or landlords seeking to enforce their rights. The case also confirms the principle that appeals may become moot or academic where they have been overtaken by events, particularly where execution has already been carried out. The award of costs on a legal practitioner and client scale (rather than the ordinary party and party scale) reflects the court's view of the appellants' conduct as particularly egregious and warranting a punitive costs order.