The late Brigadier General Paul Armstrong Gunda and his family occupied a house at 14 Lawley Road, Suburbs, Bulawayo from 2004 to 2007 by virtue of his position as Commander 1 Brigade. The house was a "reserved house" for the Commander 1 Brigade. Gunda passed away on 21 June 2007. Under army regulations, his widow (the respondent) and children had the right to remain in the house for one month, ending 31 July 2007. Despite this, she was only given notice to vacate on 20 October 2008. On 30 June 2011, the court ordered the respondent to vacate the premises within 10 days. The respondent appealed to the Supreme Court, which automatically suspended execution. The applicant (Minister of Defence) then applied for leave to execute the judgment pending appeal. The respondent claimed her late husband had been promised the right to buy the property as a sitting tenant, but could not produce an offer letter or substantiate this claim.
The application for leave to execute pending appeal was granted. The court ordered: (1) Leave to execute the judgment of 30 June 2011 in case number HB-92-11 pending appeal was granted; and (2) Respondent to bear the costs of the application on a party and party scale.
When determining whether to grant leave to execute a judgment pending appeal, the court must determine what is just and equitable in all circumstances, having regard to: (1) the potentiality of irreparable harm or prejudice to the appellant if leave is granted; (2) the potentiality of irreparable harm or prejudice to the respondent if leave is refused; (3) the prospects of success on appeal, including whether the appeal is frivolous or vexatious or noted merely to gain time; and (4) the balance of hardship where there is potentiality of harm to both parties. Leave to execute will be granted where the appellant has no prospects of success, the appeal appears to be noted merely to buy time, the respondent will suffer prejudice if leave is refused, and no prejudice will be occasioned to the appellant by granting leave. In the context of government property disposal, offers to purchase must be made in writing and unsubstantiated verbal claims will not suffice to establish a right to occupy or purchase property.
The court observed that while the army was criticized for the inordinate delay in giving the respondent notice to vacate the premises (from July 2007 to October 2008), this delay did not confer upon her any right to occupy the premises after the prescribed period of one month following her husband's death. The court also noted that the respondent's suggestion that she had witnesses including army officers who would support her story about the offer to purchase was clearly without merit, as such offers are not made verbally but by way of offer letters, and she failed to name any such witnesses.
This Zimbabwean High Court case demonstrates the application of South African jurisprudence (South Cape Corporation test) in determining applications for leave to execute pending appeal. It illustrates how courts balance competing interests when considering whether to lift the automatic suspension of judgment execution that occurs upon noting an appeal. The case also clarifies the rights of surviving family members to occupy military housing and the requirement for written documentation in government property disposal processes. It emphasizes that unsubstantiated claims and appeals noted merely to delay execution will not prevent leave to execute being granted where there are no realistic prospects of success on appeal.