Rainbow Tourism Group Limited v Clovgate Elevators Company (Private) Limited and Sheriff for Zimbabwe

On 14 November 2013, the first respondent obtained a default judgment against the applicant for US$139,549.80 after the applicant failed to attend a pre-trial conference. On 22 April 2014, the first respondent obtained a writ of execution and proceeded to serve a notice of seizure and attachment on the applicant, with removal scheduled for 28 April 2014. Following discussions, execution was stayed and the parties engaged in settlement negotiations, agreeing to appoint experts to assess the work carried out and materials supplied. The first respondent's letter of 3 July 2014 set a deadline of 8 July 2014 for the appointment of experts, failing which execution would proceed. The applicant responded on 7, 15, 16 and 22 July 2014, providing names of experts on 16 July 2014. On 28 July 2014, the applicant learned that the second respondent had been instructed to proceed with execution, prompting this urgent application for a stay of execution.

• Whether the application was urgent and properly brought through the urgent chamber application procedure
• Whether there was reasonable explanation for any delay in bringing the application
• Whether a stay of execution should be granted pending determination of rescission applications
• Whether the balance of convenience favoured granting the stay of execution

The provisional order was granted with a slight amendment. The stay of execution was granted, interdicting the second respondent from removing the applicant's property attached on 23 April 2014 and staying execution of the default judgment pending determination of matters HC 3404/14 and HC 5451/14. Paragraph 3 relating to consolidation was deleted from the interim relief sought.

The binding legal principles established are: (1) Urgency in an application for stay of execution must be determined based on when the applicant became aware of the imminent threat of execution, not from the date of the original judgment or attachment; (2) Where parties have agreed to engage in settlement negotiations and appoint experts to resolve disputes, urgency arises when those negotiations are abruptly terminated and execution is instructed to proceed; (3) A reasonable explanation for delay in bringing an urgent application will suffice to establish urgency if the applicant acts immediately upon learning of the threat; (4) Where a real dispute exists and the applicant has demonstrated a genuine desire to defend the matter, the balance of convenience favours granting a stay of execution pending determination of rescission applications.

The court made several obiter observations: (1) That a deadline of less than a week to appoint experts was not practical; (2) That the first respondent's silence following correspondence and its unreasonable deadline constituted conduct attaching to a party negotiating in bad faith; (3) That if the rescission application relating to the default judgment is granted, the applicant's defence will automatically be restored, making reference to other rescission applications unnecessary; (4) That while there may be merit in consolidating existing matters, the court will not entertain an application for consolidation when it is not seized with the matters to be consolidated, and parties are free to determine how to proceed with their pending matters.

This case establishes important principles regarding urgency in applications for stay of execution in Zimbabwean law. It clarifies that urgency must be assessed based on the conduct of the parties and the circumstances prevailing at the time the applicant becomes aware of the need to act. The case demonstrates that where parties are engaged in bona fide settlement negotiations, urgency arises when those negotiations are abruptly and unilaterally terminated, not from the date of the original judgment or writ. It also illustrates judicial disapproval of bad faith conduct in settlement negotiations. The case reinforces that where a real dispute exists and there is a genuine desire to defend, the balance of convenience favours granting a stay of execution pending determination of rescission applications.