Pallematic Freight t/a Little Fune (Private) Limited and Welshman Ncube v Hon Magistrate Maxwell Ncube, Crossmil Enterprises (Private) Limited and Messenger of Court

The appellants (Pallematic Freight t/a Little Fune (Pvt) Ltd and Welshman Ncube as guarantor) were in a lessor-lessee relationship with the second respondent (Crossmil Enterprises). The second respondent sought eviction from four fuel service stations for non-payment of rentals. The appellants failed to defend proceedings in the Magistrates Court and a default judgment was entered against them ordering cancellation of the lease, payment of arrear rentals (USD$3,727.37 and ZWL44,700.54), ejectment, costs, and holding over damages. The appellants then applied for rescission of the default judgment and stay of execution, which was dismissed. They noted an appeal (HCA 62/23). The second respondent obtained leave to execute pending appeal, which the appellants challenged through another appeal (HCA 71/23) and a review application (HC 1459/23). The appellants then filed an urgent chamber application for stay of execution, arguing they had paid the judgment debt but a warrant of execution was still issued. On 1 and 3 August 2023, the appellants made payments towards satisfying the judgment debt. The second respondent raised preliminary objections including the doctrine of peremption, arguing the appellants had acquiesced in the default judgment by paying the debt.

• Whether the High Court erred in dismissing the urgent application for stay of execution on the basis of the doctrine of peremption
• Whether payment of a judgment debt constitutes acquiescence in that judgment such that the right to challenge it is perempted
• Whether payment made pursuant to an order for execution pending appeal can constitute acquiescence
• Whether payment claimed to be made 'under protest' negates the application of the doctrine of peremption

The appeal was dismissed in its entirety with costs awarded against the appellants.

The binding legal principles established are: (1) The doctrine of peremption prevents a party who has acquiesced in a judgment from subsequently challenging that judgment; (2) Payment of a judgment debt constitutes unequivocal acquiescence in that judgment, thereby perempting the right to challenge it; (3) For payment to be considered made 'under protest' and thus not constitute acquiescence, the protest must be clear, unequivocal, and contemporaneous with the payment - retrospective claims of protest made after the fact are insufficient to negate acquiescence; (4) A party cannot approbate and reprobate - having two courses of action open and unequivocally taking one, a party cannot later turn back and take the other; (5) Once a party complies with or acts upon a judgment, whether by payment or otherwise, that party may not later seek to impugn the very judgment it has honored; (6) The doctrine of peremption serves the broader policy of finality in litigation, which is essential to the proper administration of justice.

The Court observed that the urgent chamber application was essentially an indirect attack on the default judgment, as the stay of execution would only be relevant if the underlying default judgment was successfully impugned. The Court also noted that the appellants' true aim through the series of proceedings (including appeals HCA 62/23 and HCA 71/23, and review application HC 1459/23) was to challenge the default judgment. The Court commented that the retrospective claim that payment was made under protest appeared to be an afterthought designed to defeat the peremption objection. The Court also noted (without deciding) the second respondent's argument that the appeal in HCA 71/23 was a legal nullity as it sought to appeal against an order granting leave to execute without leave having been obtained. The High Court's finding that the doctrine of peremption rendered the review application and appeals devoid of reasonable prospects of success was implicitly endorsed by the Supreme Court.

This case is significant in Zimbabwean jurisprudence for clarifying the application of the doctrine of peremption in civil proceedings. It establishes that payment of a judgment debt, even when made pursuant to an order for execution pending appeal, constitutes unequivocal acquiescence that perempts the right to challenge the judgment. The case emphasizes that for payment to be considered 'under protest' and thus not constitute acquiescence, the protest must be clear, unequivocal, and contemporaneous with the payment - retrospective claims are insufficient. The judgment reinforces the principle that parties cannot approbate and reprobate, and that finality in litigation serves the broader policy of proper administration of justice. It serves as authority for the proposition that once a litigant acts in a manner demonstrating acceptance of a judgment, subsequent challenges to that judgment will be barred by peremption.