Old Mutual Life Assurance Company (Private) Limited v D. L. Makgatho

Old Mutual awarded a bursary to Fortune Makgatho, the respondent's son, in February 1995 for actuarial science studies at the University of Cape Town. The bursary agreement stipulated that Fortune must maintain certain academic standards, failing which the bursary would be withdrawn and amounts paid would become a student loan payable on demand. The respondent signed a suretyship as co-principal debtor for Fortune's obligations. Fortune failed to meet the conditions of the agreement. Old Mutual demanded repayment and issued summons against the respondent as surety. On 13 September 2006, the High Court entered judgment against the respondent for $121.52 (with interest at 30% p.a. from 9 October 2003) and R201,750.08 (with interest at South African rates from the same date), plus costs. The respondent noted an appeal (SC 260/06). Old Mutual then applied for leave to execute the judgment pending appeal, believing the appeal was noted to buy time and frustrate collection.

• Whether leave to execute pending appeal should be granted
• What factors a court must consider when exercising discretion to grant leave to execute pending appeal
• Whether an appellant's absolute right to appeal can be overridden
• Whether prospects of success on appeal are the sole consideration in applications for leave to execute
• Whether new points not raised at trial can be considered on appeal
• The interplay between an appellant's absolute right to appeal and execution pending appeal

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

An appellant's absolute right to appeal must be upheld unless it is clear that the appeal has been noted without genuine intention to test the correctness of the judgment and execution will not defeat the appellant's right. Prospects of success on appeal, while relevant, are not the sole or overriding consideration in applications for leave to execute pending appeal. The court must exercise discretion based on all circumstances including: potentiality of irreparable harm to both parties, prospects of success on appeal (including whether the appeal is frivolous or vexatious), and balance of hardship. Where execution would completely defeat the appellant's right to appeal, leave to execute should be refused even where prospects of success appear limited, unless the appeal is clearly not bona fide.

The court observed that the respondent's attempt to introduce a new issue (that liability should be in local rather than foreign currency) would likely face difficulties on appeal, as it was not pleaded or canvassed at trial. The court noted that the purpose of pleadings is to clarify issues between parties, and generally all issues should be raised on pleadings. Parties should not direct attention to one issue then canvass another at trial without leave to amend. Courts may only adjudicate on issues not raised on pleadings where those issues have been fully canvassed at trial. The court indicated that had the currency issue been pleaded, further evidence regarding manner of payment would have been introduced. The point goes to the court's discretion rather than jurisdiction, further limiting prospects of raising it for the first time on appeal.

This case is significant in Zimbabwean civil procedure for clarifying the approach courts must take to applications for leave to execute pending appeal. It reinforces that while prospects of success on appeal are important, they are not the sole or overriding consideration. The judgment emphasizes the paramount importance of protecting an appellant's absolute right to appeal, particularly where execution would completely defeat that right. The case provides guidance on balancing the competing interests of successful litigants seeking to enforce judgments and appellants exercising their statutory right to challenge adverse decisions. It also demonstrates judicial reluctance to grant execution pending appeal solely on the basis of limited prospects of success where doing so would be tantamount to denying the right to appeal.