Sibambene Traders Association v Findley Investments (Pvt) Ltd and Others

The 1st respondent (Findley Investments) issued summons against the 2nd respondent (Mpumelelo Investments) and other individuals in HC 774/17 on 17 February 2017. The parties settled by consent on 13 February 2019. The applicant (Sibambene Traders Association), a common law universitas, was not a party to HC 774/17. In November 2021, the 1st respondent obtained an amendment of the consent order in HC 774/17, in which the applicant became designated as the 2nd respondent's trade name. On 30 November 2021, the applicant was served with a writ and warrant of ejectment. On 15 December 2021, the applicant filed an application for rescission of the amended order (HC 1951/21) at 0907 hours, followed by this urgent application for stay of execution at 1143 hours. Despite being served with both applications, the 3rd respondent (Sheriff) proceeded with evictions on 17 December 2021, completing them at 1051 hours and handing keys to the 1st respondent's representative. The applicant's members occupied the premises through the 2nd respondent who was the lease holder.

• Whether the Sheriff's return of service should be accepted as prima facie evidence of completed eviction
• Whether the application for stay of execution had been overtaken by events
• Whether execution should be stayed pending an application for rescission when the Sheriff has been served with the stay application
• Whether the balance of convenience favoured restoring occupation to the applicant's members
• Whether the court should determine a matter that has become moot or academic
• What costs order should be made given the conduct of the 1st and 3rd respondents

The application for stay of execution of the amended court order in HC 774/17 was dismissed. The 1st respondent was ordered to pay the costs of the application to the applicant on an attorney and client scale.

The binding legal principles established are: (1) A Sheriff's return of service is prima facie evidence of the facts stated therein and should not be ignored without good cause; (2) It is the practice, custom and tradition of the court that when an urgent matter for stay of execution has been set down, it suspends execution until the matter is heard; (3) Once a Sheriff has been served with an application for stay of execution while awaiting set down, he must not proceed with execution; (4) A court must deal with a live controversy and not one that has become moot or academic by reason of changed circumstances - when the dispute becomes academic, the court's jurisdiction ceases; (5) Where execution has been completed despite proper service of a stay application, the balance of convenience will not favour restoring the pre-execution position; (6) Conduct by parties or court officers that attempts to defeat pending applications and unfairly pre-empt the court warrants censure through punitive costs orders on an attorney and client scale, even where the substantive application fails.

The court made important observations about proper litigation conduct, noting that "all litigants are expected to await the finalisation of a matter before the court" and that "it is always the best way to handle litigation that it be finalised once and for all preferably on the merits as opposed to other means." The court emphasized that the conduct of proceeding with execution after being served with stay applications "overloads this court with application after application" and that "matters are better permanently finalised than their finalisation deferred." The court also observed that it deliberately avoided delving deeper into the contents of papers relating to the merits of the rescission application, as those matters were not before it and commenting would be inappropriate. The court noted that the conduct of the 1st and 3rd respondents "fell rather short of what one would expect from an officer of this court" and was "akin to attempting to defeat the applications and unfairly pre-empt the court."

This case is significant in Zimbabwean civil procedure for affirming and reinforcing important principles regarding stay of execution applications and the conduct expected of parties and court officers. It establishes that: (1) a Sheriff's return of service constitutes prima facie evidence that should not be lightly ignored; (2) once a Sheriff is served with an application for stay of execution, execution should be suspended until the matter is heard - this is the practice, custom and tradition of the court; (3) proceeding with execution after being served with a stay application is conduct that warrants censure and punitive costs orders; and (4) courts will not determine matters that have become moot or academic due to changed circumstances. The case demonstrates the court's willingness to use costs orders on an attorney and client scale as a tool to censure improper conduct that attempts to defeat pending applications and pre-empt the court, even where the substantive application must be dismissed.