Saltlakes Holdings Private Limited and Temba Peter Mliswa v CBZ Bank Limited and The Sheriff of Zimbabwe N.O

CBZ Bank Limited, a commercial bank, issued summons on 8 October 2014 against Saltlakes Holdings Private Limited and Temba Peter Mliswa for payment of USD$2,745,092.72 being monies loaned through a written overdraft facility dated 17 February 2011 in the sum of USD$2 million to finance the first applicant's working capital requirements. The second respondent was a surety and co-principal debtor. The applicants entered appearance to defend on 20 October 2014 (out of time) and requested further particulars on 12 November 2014. The appearance to defend was not served on the first respondent's legal practitioners within the prescribed time period. On 3 December 2014, the first respondent's legal practitioners wrote to the applicants' lawyers warning that default judgment was about to be obtained because the appearance to defend was defective and filed out of time. No application to uplift the automatic bar was made. Default judgment was obtained on 16 December 2014. The applicants' property was attached on 29 June 2015. A day later, the applicants filed an urgent chamber application for stay of execution pending determination of an application for rescission of judgment.

• Whether the matter was urgent and should be heard on an urgent basis
• Whether the applicants had shown good and sufficient cause for stay of execution of a default judgment
• Whether special circumstances existed to justify staying execution of a judgment sounding in money
• Whether the application for rescission of default judgment had prospects of success
• Whether the applicants had discharged the onus of showing that irreparable harm or prejudice would result if execution was not stayed

The urgent chamber application to stop execution and to bar the respondents from proceeding with removal and execution of the applicants' property in terms of the default judgment in HC8835/14 was dismissed with costs on a legal practitioner and client scale.

A matter is not rendered urgent simply because an application for rescission of judgment has been filed and is pending resolution. Urgency that stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. For a stay of execution to be granted, the applicant must discharge the onus of showing that special circumstances exist. Where a judgment sounds in money and restitution is possible, execution will generally be allowed unless irreparable harm or prejudice would result. An applicant seeking rescission of a default judgment and stay of execution must provide sufficient evidence (such as expert affidavits and detailed calculations) to show good and sufficient cause, particularly where they do not deny total liability but merely dispute quantum. Bald averments of errors in calculation without supporting evidence are insufficient to justify the court's indulgence.

The court noted that even where judgment is given in default, and the court has a broad discretion to rescind such judgments, this does not automatically constitute a special circumstance justifying stay of execution. The court observed that had the applicants put forward an authoritative affidavit (such as from an accountant) explaining detailed errors in the bank's calculation, accompanied by a fresh calculation showing the correct amount due, consented to judgment in the admitted amount, and asked that only the disputed amount go to trial, the court would have been hard put to refuse their request despite what might be described as their wilful default (following the principle in Deweras Farm). The court characterized the application as an exercise in futility and an abuse of the court's process given the paucity of evidence presented.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the strict requirements for urgency in chamber applications, particularly that urgency cannot be self-created through deliberate or careless abstention from action; (2) the requirements for obtaining a stay of execution, particularly where a judgment sounds in money and restitution is possible; (3) the burden on applicants seeking to set aside default judgments to show good and sufficient cause with proper evidence; and (4) the importance of complying with procedural rules regarding entry of appearance to defend and service. The case emphasizes that parties seeking indulgences from the court must provide proper evidence to support their claims, not mere bald averments.