Theresa Jairosi v Jeffry Lucas and Deputy Sheriff, Harare

The first respondent, Jeffry Lucas, was the registered owner of Stand 4756 Salisbury Township (15 Campbell Road, Braeside, Harare), which he purchased from the applicant's former husband, Peter Jairosi. On 8 June 2011, Lucas obtained a default ejectment order against the applicant in case HC3126/11. The applicant was ejected pursuant to a writ of ejectment. She then successfully obtained an urgent chamber application (HC 6054/11) on 30 June 2011 to restore her occupation pending determination of her rescission application (HC 6056/11). However, the first respondent applied for dismissal of the rescission application for want of prosecution, which was granted on 2 January 2013 under case HC 14050/12. Following this dismissal, the first respondent issued another writ of ejectment in January 2013. The applicant then filed the present urgent application seeking a stay of execution pending her intended application to reinstate the dismissed rescission application.

• Whether the court should exercise its inherent power to stay execution of a valid ejectment order
• Whether the applicant demonstrated that real and substantial justice required a stay of execution
• Whether the applicant's failure to prosecute her rescission application disentitled her to the court's indulgence

The urgent chamber application for stay of execution was dismissed with costs.

The court has an inherent power to control its processes and may exercise a wide discretion to stay or set aside execution of a judgment where real and substantial justice so dictates. However, this discretion must be exercised judicially, bearing in mind the general rule that a party who has obtained an order is entitled to execute upon it. A party seeking a stay of execution must discharge the onus of demonstrating that real and substantial justice requires the stay. Where an applicant has failed to prosecute their application for rescission of judgment without acceptable explanation, and where the respondent holds uncontested title to property and a valid ejectment order, the applicant will not have discharged this onus.

The court noted with significance that the applicant did not contest the first respondent's title to the property and that there were no proceedings pending challenging his ownership. The court also observed that given the applicant was seeking the court's indulgence, one would expect greater diligence in prosecuting her application for rescission of judgment. The court further noted that the applicant's lack of awareness that her rescission application had been dismissed at the time of filing the present application was indicative of her lack of diligence in the matter.

This case illustrates the Zimbabwean High Court's approach to applications for stay of execution, confirming that while courts possess inherent power to stay execution in the interests of real and substantial justice, this discretion will not be exercised in favour of a party who has been dilatory in prosecuting their remedies, particularly where the opposing party has obtained a valid judgment and holds uncontested title to property. The case reinforces the principle that litigants seeking the court's indulgence must demonstrate diligence and provide proper explanations for any procedural defaults.