Richard Chapanga and Others v Multipest Services (Pvt) Ltd and The Sheriff

On 10 July 2013, the first respondent (Multipest Services) applied for provisional sentence on an acknowledgment of debt. A draft order headed "Order by Consent" was presented, stating that a Deed of Settlement under HC 4283/13 be made an order of court. The court raised a query about the absence of the Deed of Settlement. Counsel for the first respondent undertook to file it by 4.00 p.m. that day but never did. On 15 July 2013, counsel wrote to the registrar expressing difficulty in obtaining the other party's consent, requesting to set the matter down again on the unopposed roll. This letter was never placed in the file. On 17 July 2013, the file was referred to the judge who mistakenly thought what was to be filed was the Acknowledgment of Debt already on record, and granted the order. A writ of execution was issued on 10 September 2013, leading to seizure and attachment on 16 September 2013. The applicants filed this urgent application on 18 September 2013 seeking suspension of the writ pending finalisation of an application (Case No. 7635/13) to set aside the order granted in error.

• Whether the applicants had established urgency for an interim interdict
• Whether the applicants had a clear prima facie right warranting suspension of the writ of execution
• Whether the applicants would suffer irreparable harm if the interdict was not granted
• Whether the balance of convenience favoured granting the stay of execution
• Whether the applicants had prospects of success in setting aside an order granted without their consent

The application was granted. The writ of execution dated 16 September 2013 issued pursuant to the order in case No. 4283/13 was suspended pending finalisation of case No. 7635/13. The Sheriff was directed to release and deliver to the applicants all attached property, namely: a Honda CRV AVJ 0405, 1 Defy fridge, 1 Capri chest fridge, 1 four-plate stove, 1 Samsung television, and 8 brown sofas.

Where a court order styled as a consent order was granted in error based on a mistaken assumption that parties had consented when in fact no consent existed, the affected party has a clear prima facie right to have execution stayed pending an application to set aside the order. Irreparable harm arises from enforcement of an order to which a party never consented, as any compensation is neither automatic nor guaranteed and would require costly and lengthy litigation. In determining whether to grant a stay of execution, the relevant consideration is whether justice demands suspension in relation to the application to set aside the order, not whether the applicant has a defence to the main claim. The balance of convenience favours granting a stay where the judgment creditor can pursue alternative remedies such as proceeding on an unopposed roll based on the underlying acknowledgment of debt.

The court observed that the first respondent's lawyer's error was to make an assumption that the other party had consented without verifying this. The court commented that the most sensible course in the circumstances was for the first respondent to set the matter down on the unopposed roll based on the acknowledgment of debt signed by the applicants, rather than attempting to enforce a consent order that was never actually consented to.

This case demonstrates the Zimbabwean High Court's approach to setting aside execution on orders granted in error without proper consent. It reinforces the principle that courts will grant interim interdicts to suspend writs of execution where consent orders were granted based on mistaken assumptions about party agreement, protecting litigants from enforcement of orders they never consented to. The case illustrates the court's willingness to correct procedural errors and emphasizes that irreparable harm exists when property is to be executed upon under an order lacking proper consent, regardless of the judgment creditor's ability to compensate.