TM Supermarkets (Private) Limited v Avondale Holdings (Private) Limited and Another

The applicant (TM Supermarkets) had been a lessee of the first respondent (Avondale Holdings) since 1978. The lease was due to expire on 28 February 2014 by effluxion of time pursuant to an arbitral award dated 18 June 2009. On 1 October 2010, the applicant's director wrote to the first respondent confirming it would not contest the first respondent's right to repossess the premises upon expiry of the lease. However, on 29 January 2014, the applicant's lawyers wrote indicating it would remain in occupation as a statutory tenant beyond the lease expiry date. The first respondent issued summons for ejectment on 3 March 2014, which was served on a receptionist at the applicant's premises. The applicant did not defend and default judgment was entered on 6 May 2014. The applicant was evicted on 16 May 2014. The applicant then filed an application for rescission of judgment and an urgent chamber application for stay of execution. The stay application was dismissed by the High Court. The applicant noted an appeal (SC 255/14) and filed this urgent chamber application before the Supreme Court seeking stay of execution pending the appeal.

• Whether the applicant had a prima facie right to stay of execution
• Whether service of the summons on the receptionist was valid
• Whether a statutory tenant who has lost possession through lawful eviction has a right to restoration
• Whether a party can seek stay of execution after execution has already taken place
• Whether the applicant had waived its rights to occupation beyond 28 February 2014
• Whether the defective notice of appeal affected the application for stay of execution
• Whether the applicant would suffer irreparable harm
• Where the balance of convenience lay

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

A statutory tenant who has lost physical possession of commercial premises through lawful eviction pursuant to a court order has no right to be restored to possession, as the statutory protection afforded by sections 22 and 23 of the Commercial Premises (Rent) Regulations only protects the right of a statutory lessee in actual physical possession to resist eviction, not the right to regain occupation lost through ejectment. An application for stay of execution requires the applicant to demonstrate: (1) a prima facie right worthy of protection; (2) that irreparable harm will result if the stay is not granted; and (3) that the balance of convenience favours granting the stay. Where execution has already occurred, there can be no stay of something that has already happened, and the application for stay becomes incompetent.

The Court made several obiter observations: (1) That a notice of appeal which fails to state which court gave the judgment appealed against contains a fatal defect incapable of amendment; (2) That an application stands or falls on the averments in the founding affidavit, and the main foundation cannot be supplemented by mere skeletal allegations fortified in reply; (3) That to disprove a Sheriff's return of service requires clear and satisfactory positive evidence, and a bald allegation of non-service is insufficient - the party must provide some indication (supported by third party affidavit if necessary) of where they were or would likely have been at the relevant time; (4) That a party seeking stay of execution must come to Court with a very strong case before the Court will interfere with execution of its judgment; (5) That mere allegations of hardship are insufficient - an applicant must satisfy the Court of irremediable harm or prejudice.

This case is significant in Zimbabwean law (and relevant to South African jurisprudence given the similar legal principles) for: (1) Clarifying that statutory tenancy protection under Commercial Premises (Rent) Regulations only protects lessees in actual physical possession and does not extend to a right of restoration after lawful eviction; (2) Reaffirming that stay of execution applications require proof of a prima facie right, irreparable harm, and favourable balance of convenience; (3) Emphasizing that an application for stay of execution cannot succeed where execution has already taken place; (4) Applying the principle that waiver of contractual rights must be based on full knowledge of those rights but can be clearly evidenced by unequivocal written communications; (5) Reinforcing the presumption of regularity (omnia praesumuntur rite esse acta) that attaches to a Sheriff's return of service and the high standard required to rebut it.