Mpumelelo Magama v Similo Masibi and Others

The applicant was allocated Stand Number 130 Khami under Matobo District by the Matobo Rural District Council in 2024 and erected a wooden cabin and fences on the land. The 1st respondent claimed she had been allocated the same land (previously described as Plot No. 63 Lovendale, Umguza District) by the then Umguza Rural District Council in 2009. The land's jurisdiction was transferred from Umguza RDC to Matobo RDC around 2020. The 1st respondent alleged the applicant despoiled her by removing her fences and obtained a mandamus van spolie order in default under case HCBC 258/25 evicting the applicant. The applicant was unaware of these proceedings as service was allegedly made on an unknown person (Keith Nyathi). On 5 June 2025, the applicant's employee informed him that papers had been served. The applicant discovered a Notice of Removal, Court Order and Writ of Ejectment with removal set for 10 June 2025. The applicant filed an urgent application for stay of execution on 9 June 2025 and simultaneously filed an application for rescission of the default judgment. On 13 June, the 1st respondent's counsel sought a postponement to 16 June due to illness of the attorney seized with the matter, undertaking that the sheriff had been placed on hold. However, execution proceeded on 13 June at 10:15 am after the postponement was granted. On 16 June, different counsel for the 1st respondent appeared and took a preliminary point that the matter was moot due to execution.

• Whether the applicant established the requirements for an interim interdict/stay of execution
• Whether the applicant had a prima facie right to the property
• Whether there was a well-grounded apprehension of irreparable harm
• Whether the balance of convenience favoured granting interim relief
• Whether the court's inherent jurisdiction allowed it to regulate its own processes in the interest of justice
• Whether the 1st respondent's counsel acted unethically by proceeding with execution after undertaking to place the sheriff on hold

1. That any execution or removal pursuant to a court order under case number HCBC 258/25 be and is hereby stayed pending the determination of the application for Rescission of Judgment and Order. 2. Should it be that the Sheriff of Zimbabwe has already removed the applicant, the Sheriff of Zimbabwe be and is hereby ordered to re-instate the applicant.

The binding legal principles established are: (1) A court will not allow a party to benefit from the malfeasance and unethical conduct of its legal representatives, as this would set an improper precedent for counsel to negotiate in bad faith. (2) Where counsel gives an undertaking to the court and opposing counsel (such as placing execution on hold) and obtains an indulgence (postponement) on that basis, the court will exercise its inherent jurisdiction to prevent that party from benefiting from walking back on such undertakings. (3) In applications for interim interdicts/stay of execution, a prima facie right can be established where an applicant has been allocated land by a competent authority, even where there are competing claims that may arise from double allocation following jurisdictional changes between local authorities. (4) The balance of convenience favours maintaining the status quo ante where a party has acted in breach of undertakings given to the court, and where irreparable harm would result from allowing execution to proceed pending determination of a rescission application. (5) Courts have inherent jurisdiction to regulate their own processes in the interest of real and substantial justice.

The court observed that it was "not clear if the illness and unavailability of Mr T. Moyo was just a ruse," suggesting suspicion that the initial postponement request may have been a deliberate strategy to create an opportunity for execution while appearing to cooperate. The court also commented that the competing land claims appeared to stem from a "genuine double allocation stemming from the change of the local authorities' jurisdiction" between Umguza RDC and Matobo RDC, which would ultimately be determined at trial in the rescission application. The court noted, quoting from Beach Consultancy (Pvt) Limited v Obert Makonya HH696-21, that "Like a game of chess the parties sought to checkmate each other and sought to occupy the most advantageous position in this legal contestation," characterizing the tactical maneuvering in the case.

This case is significant for establishing that courts will not permit parties to benefit from unethical conduct of their legal representatives, particularly where counsel obtains postponements or indulgences through misrepresentation and then acts contrary to undertakings given to the court and opposing counsel. It reinforces the court's inherent jurisdiction to regulate its own processes in the interest of real and substantial justice. The case also illustrates the application of interim interdict principles in the context of competing land allocation claims and provides guidance on how courts should assess prima facie rights where there may have been double allocation by different local authorities following jurisdictional changes. It emphasizes that professional courtesy between counsel must be reciprocal and that abuse of such courtesy will result in adverse consequences for the offending party.