Northway Real Estate (Pvt) Ltd and Kennedy Shongorisho v Zimre Property Investments (Pvt) Ltd and The Sheriff of the High Court

The applicants were ordered to pay US$66,447.97 plus costs of US$4,500.00 to the first respondent pursuant to a judgment by consent granted on 29 September 2015 in Case No. HC 6038/15. A deed of settlement executed on 25 September 2015 provided for payment of US$3,500 on or before 30 September 2015, followed by monthly instalments of US$3,500 on or before the last day of each month. The applicants defaulted on their monthly instalments. The first respondent caused a writ of execution to be issued on 16 December 2015. The second respondent (Sheriff) attached property belonging to both applicants. Property of the second applicant was removed on 10 March 2016, with removal of the first applicant's property scheduled for 17 March 2016. On 17 March 2016, the applicants instituted an urgent chamber application to stay execution. The applicants alleged they had engaged the first respondent's representatives for an extension, paid the February instalment of US$3,500 on 7 March 2016, and received assurances that attached goods would not be removed, but removal proceeded on 10 March 2016. They then paid for March 2016 on 15 March 2016.

• Whether the court should exercise its discretion to stay execution of a judgment where the judgment debtor has defaulted on payment terms under a deed of settlement
• Whether the applicants established special circumstances justifying a stay of execution
• Whether an alleged oral agreement to suspend execution if arrear instalments were paid had been proven

The application was dismissed. The applicants were ordered to pay costs jointly and severally, the one paying the other to be absolved.

The court has inherent power to stay execution of its judgments, but will only do so where special circumstances are established and real and substantial justice so demands. The onus rests on the party seeking a stay to prove such special circumstances. Where a judgment debtor has defaulted on payment terms under a deed of settlement that provides for the entire amount to become due upon breach, the judgment creditor is entitled to proceed with execution. A party seeking to rely on an alleged agreement to suspend execution must establish clear evidence of such agreement. Mere allegations unsupported by evidence of who made the agreement, contradicted by the conduct of the other party, are insufficient to discharge the onus.

The court observed that granting the relief sought would create an undesirable situation where, if the applicants defaulted in future, the first respondent would need to cause a second writ of execution to be issued because the writ issued in December 2015 would have been stayed. The court noted this would undermine the efficacy of the process of execution of judgments of the court. The court also noted that stays of execution can be more readily found where the judgment is for ejectment or transfer of property, as carrying such orders into operation could render restitution of the original position difficult.

This case reinforces the well-established principles governing stay of execution in Zimbabwean law. It emphasizes that a judgment creditor is generally entitled to execute upon a judgment, particularly where there has been breach of a settlement agreement. The case demonstrates the high threshold for proving special circumstances that would justify staying execution, and the importance of establishing clear evidence of any alleged agreements to suspend execution processes. It also underscores the court's concern with maintaining the efficacy and integrity of its execution processes.