Thomas Mutambirwa & 70 Others v Arjun Investments (Pvt) Ltd

The respondent, Arjun Investments, was the registered owner of Victoria House/Victoria Flats, Stand No. 1053 Bulawayo Township, which it purchased from Guelder-Rose Investments (Pvt) Ltd on 25 November 2010 for US$140,000. The City of Bulawayo condemned the property as unfit for human habitation due to its run-down condition. The respondent applied to remodel and renovate the property and gave the applicants (71 occupants) notice to vacate. The applicants opposed eviction, claiming they had a right of first refusal from the previous owner. The respondent obtained an eviction order against the applicants in HC 379/11 on 14 March 2011, which was confirmed as a final order on 7 July 2011. A writ of ejectment was issued. The applicants had previously obtained an ex parte provisional order in HC 1276/11 suspending the effects of the provisional order in HC 379/11 pending finalization of that matter. After the final order was granted, applicants filed an appeal which subsequently lapsed due to non-compliance with Supreme Court Rules. The applicants then sought a stay of execution pending finalization of various related matters.

• Whether a stay of execution should be granted pending finalization of related matters
• Whether the provisional order in HC 1276/11 provided continuing protection after finalization of HC 379/11
• Whether an appeal was properly pending before the court
• Whether applicants had alternative remedies available
• Whether a right of first refusal is enforceable against a bona fide third party purchaser for value without notice

The application for stay of execution was dismissed with costs on the legal practitioner and client scale.

A provisional order suspending execution only until the occurrence of a specified event (such as finalization of another matter) ceases to have effect once that event has occurred and provides no continuing protection. A right of first refusal, even if established, is not enforceable against a bona fide third party purchaser for value who had no prior notice of such right. Where an appeal has lapsed due to non-compliance with Supreme Court Rules, there is no pending appeal to justify a stay of execution. Where alternative remedies exist (such as a claim for damages against the party who granted the right of first refusal), these remedies must be pursued rather than seeking to prevent execution against a bona fide purchaser.

The court observed that the applicants ought not to have obtained the ex parte provisional order in HC 1276/11 to suspend the effects of the provisional order in HC 379/11, but rather should have anticipated the return day of the provisional order in HC 379/11 so that matter could be argued and finalized. The court also noted that notwithstanding the applicants' wish for the provisional order in HC 1276/11 to protect them indefinitely (ad infinitum), it did not provide unlimited protection.

This case reinforces important principles in Zimbabwean property law regarding: (1) the protection afforded to bona fide third party purchasers for value who acquire property without notice of pre-existing rights such as rights of first refusal; (2) the limitation of provisional orders to their specific terms and temporal scope; (3) the requirement to comply strictly with Supreme Court Rules when prosecuting appeals; and (4) the principle that parties claiming rights of first refusal against previous owners have remedies in damages against those owners rather than against subsequent bona fide purchasers. The case also demonstrates the court's approach to abuse of process through successive applications aimed at indefinitely delaying execution of final orders.