Streamsleagh Investments (Private) Limited v Autoband Investments (Private) Limited

This was an application to execute a Supreme Court judgment notwithstanding the noting of an appeal to the Constitutional Court. In SC 43/14, the Supreme Court had allowed Streamsleagh Investments' appeal and ordered its restoration to possession of Stand 2924 Salisbury Township (No. 15 Lanark Road, Belgravia, Harare), declaring an eviction order from the Magistrates Court to be of no force and effect. The original eviction order had been granted against AMI Plc, not Streamsleagh, yet was executed against Streamsleagh. The day after the Supreme Court judgment, Autoband filed a notice of appeal to the Constitutional Court alleging infringement of constitutional rights. The Sheriff refused to execute the Supreme Court order, believing the Constitutional Court appeal suspended it. Streamsleagh then applied for leave to execute notwithstanding the appeal. The Chief Justice referred the eviction issue to a single judge for urgent determination.

• Whether execution of a Supreme Court judgment should be granted notwithstanding an appeal to the Constitutional Court
• Whether the court has discretion to grant leave to execute pending appeal
• What factors should be considered in exercising the discretion to grant leave to execute
• Whether the respondent had reasonable prospects of success on constitutional appeal
• Whether the original eviction order was irregular as it was granted against AMI Plc but executed against Streamsleagh, a separate legal entity

1. The application to execute the judgment of the Supreme Court in SC 43/14, notwithstanding the filing of an appeal to the Constitutional Court, was granted. 2. The respondent was ordered to pay costs on the legal practitioner and client scale.

The court to which application for leave to execute is made has wide discretion to grant or refuse leave, as part of its inherent jurisdiction to control its own judgments. In exercising this discretion, the court should determine what is just and equitable considering: (1) potentiality of irreparable harm to the appellant if leave is granted; (2) potentiality of irreparable harm to the respondent if leave is refused; (3) prospects of success on appeal, including whether the appeal is frivolous or vexatious; and (4) the balance of hardship. An eviction order granted against one legal entity (AMI Plc) but executed against a separate legal entity (Streamsleagh) is irregular and null and void. Where an appeal to the Constitutional Court has no reasonable prospects of success and the underlying order was irregular, leave to execute notwithstanding the appeal should be granted. The Supreme Court has power under sections 22 and 25 of the Supreme Court Act to restore the status quo where an irregularity has occurred, including ordering reinstatement following an irregular eviction.

The court noted that it became unnecessary to consider the argument that the respondent had no right of appeal to the Constitutional Court against the Supreme Court decision in the absence of the court making findings on constitutional issues. The court observed out of an abundance of caution that it brought the judgment to the attention of Malaba DCJ and Gowora JA, who sat on the original appeal panel, and both authorized indication of their full agreement with the conclusion. The court also observed that the opposition to the application appeared intended merely to delay execution of the judgment, warranting costs on the higher scale.

This case is significant in Zimbabwean jurisprudence for establishing the principles governing execution of judgments notwithstanding appeals to the Constitutional Court. It clarifies that courts retain inherent jurisdiction to control their own judgments and grant leave to execute where appropriate. The case also reinforces fundamental principles regarding separate legal personality, the requirements for spoliation orders, and the need for parties to be properly cited in proceedings that affect their rights. It demonstrates that constitutional appeals will not automatically suspend execution where the underlying order was irregular or null and void, and where the appeal lacks reasonable prospects of success.