Pastor Davias Mburuma v United Apostolic Faith Church (UAFC) and The Sheriff of Zimbabwe

The applicant, a pastor, was sued by the first respondent (United Apostolic Faith Church) in HC 7281/12 for eviction from church premises at stand 5488-77th Crescent Glen View, Harare. The first respondent alleged that the applicant had joined another church organisation (International Life Centre Church) but continued to collect tithe from the congregation which he converted to his own use. The matter was set down for trial on 13 January 2015. The applicant was served with notice of set down on 17 December 2014. His previous lawyers renounced agency on 5 January 2015, and Makuku Law Firm assumed agency on 9 January 2015, three days before trial. On the trial date, neither the applicant nor his legal practitioner appeared in court, resulting in default judgment being granted at 9 am. Mr. Makuku's firm sent a letter at 08:57 hours (three minutes before trial) requesting the matter be stood down as he had a Supreme Court engagement at 9:30 am. The applicant filed an application for rescission of the default judgment on 16 January 2015 and subsequently this urgent application for a stay of execution pending the rescission application.

• Whether the applicant's default was wilful or excusable
• Whether the applicant presented good and sufficient cause for a stay of execution pending rescission of judgment
• Whether the applicant had a bona fide defence to the claim for eviction
• Whether the court should exercise its discretion to grant a stay of execution in circumstances where the applicant appeared to be abusing court process

The application for a stay of execution was dismissed with costs.

When considering an application for a stay of execution pending rescission of a default judgment, a court must exercise its discretion judiciously and consider whether the applicant presents good and sufficient cause for rescission under Rule 63(2). The court should examine whether the underlying rescission application has merit before granting a stay, as granting a stay where the rescission lacks merit would offend the principle of finality in litigation. Courts will not exercise discretion in favor of litigants who abuse court process through dilatory tactics or who fail to show they were not in wilful default and lack a bona fide defence. A party leaving a church cannot lay claim to the property of that church.

The court made observations that the applicant's conduct, including changing lawyers at the eleventh hour and delivering a postponement request three minutes before trial, created the distinct impression that the applicant and counsel were deliberately building a case for future rescission rather than genuinely intending to prosecute the matter. The court noted it would be impossible to frame an exhaustive definition of what constitutes sufficient cause to justify granting an indulgence, citing Cairns Executors v Goarn 1912 AD 181 at 186. The court also observed that even if Mr. Makuku had a Supreme Court engagement, a phone call would have been more appropriate than a letter delivered three minutes before trial.

This case reinforces important principles regarding court process and litigation conduct in Zimbabwe. It establishes that courts will not exercise discretion in favor of litigants who abuse court process through dilatory tactics. The case also clarifies that when considering a stay of execution pending rescission of a default judgment, courts should examine whether the underlying rescission application has merit, as granting a stay where the rescission lacks merit would offend the principle of finality in litigation. Additionally, the case applies established church property law principles that a party leaving a church cannot lay claim to church property, citing binding Supreme Court and High Court precedent.