Norwich Trading (Pvt) Ltd v Astrodorne Enterprises (Pvt) Ltd

Norwich Trading (Pvt) Ltd (the applicant) was the registered owner of property at 750 Gaydon Road, Greystone Park Harare under Deed of Transfer No 11896/98. In 2011, there was an agreement of sale of shares in the applicant between Nathan Mnaba and Mrs Nighert Savania. When Mnaba failed to pay the full purchase price, Savania cancelled the agreement. The applicant and Savania successfully evicted Mnaba under HC 9654/13 (judgment HH 730-18), though Mnaba appealed under SC 874/18 but vacated the property. Mnaba had fraudulently appointed Nyasha Muzavazi as director via Form CR 14 (later cancelled by court order) and used this to obtain a loan from Stanbic Bank secured by the property. In March 2019, Astrodorne Enterprises (Pvt) Ltd (the respondent) purchased the property by private treaty following Stanbic Bank obtaining judgment against the applicant for loan arrears under HC 2755/17. The respondent claims it took possession in March 2019. The applicant obtained a spoliation order on 9 April 2021 under HC 912/21 restoring it to possession. The respondent noted an appeal under SC 80/21, which suspended the judgment. The applicant then sought leave to execute pending appeal.

• Whether the applicant should be granted leave to execute the spoliation order pending determination of the respondent's appeal
• Whether the respondent's appeal has reasonable prospects of success
• Whether irreparable harm would accrue to either party depending on whether leave to execute was granted or refused
• Where the balance of convenience lies between the parties
• Whether the respondent brought the appeal with bona fide intention to test the correctness of the court a quo's decision

The application for leave to execute pending appeal was dismissed. Each party was ordered to bear its own costs.

An appellant has an absolute right to appeal and to test the correctness of the decision of the lower court before being called upon to satisfy the judgment. Leave to execute pending appeal will be refused where: (1) the respondent has good prospects of success on appeal; (2) the balance of convenience favours the respondent; and (3) the applicant has alternative remedies that prevent demonstrable prejudice. In spoliation matters, where it is unclear whether the applicant had peaceful and undisturbed possession at the time the respondent took possession, the appellate court may find that spoliation was not proved, giving the appeal good prospects of success. Where holding over damages have been awarded, the applicant for leave to execute cannot demonstrate irreparable harm.

The court observed that allowing a lower court to determine whether a judgment should be enforced pending appeal is a way of dealing with frivolous appeals brought with no bona fide intention of testing the correctness of the decision but motivated by a desire to buy time or harass the successful party. The court noted the complexity of the factual dispute regarding possession, particularly the sequence of events whereby Mnaba vacated in December 2018 as an individual, before the respondent purchased and claimed to take possession in March 2019, creating uncertainty about whether the applicant ever had peaceful and undisturbed possession after Mnaba's departure.

This case illustrates the application of the principle that an appellant has an absolute right to appeal and that leave to execute pending appeal should only be granted in exceptional circumstances. It demonstrates how courts balance the competing interests when dealing with spoliation orders and appeals, particularly where issues of possession are genuinely disputed and the successful party has alternative remedies (such as holding over damages). The case reinforces that prospects of success on appeal and balance of convenience are critical factors in determining applications for leave to execute pending appeal, and that the right to appeal should not be interfered with lightly.