Tonderai Katsa v Samuel Goredema and The Messenger of Court

The applicant acquired property known as no. 2482 New Msasa Park, Harare in 2014. The first respondent claimed to have acquired the same property in 2015. In 2020, the first respondent instituted eviction proceedings against the applicant at the Harare Magistrates Court. Default judgment was entered against the applicant for failure to file his plea. The applicant's application for rescission of default judgment was dismissed at the Magistrates Court. The applicant noted an appeal to the High Court. On 28 September 2021, the appeal was ruled in favour of the first respondent in default as the applicant's former legal practitioners did not appear. The applicant claimed he only became aware of the judgment when served with a notice of eviction on 17 December 2021. On 20 December 2021, the applicant simultaneously filed an urgent application for stay of execution and an application for rescission of default judgment (HC 7304/21). The applicant had constructed a structure on the property where he resided. The applicant's title document was from Mukuvisi Tashinga Housing Co-operative, while the first respondent's document was from ZANU PF Mukuvisi Tashinga District.

• Whether the application for stay of execution was urgent
• Whether the applicant demonstrated a prima facie case with prospects of success
• Whether the applicant would suffer irreparable harm if the stay was not granted
• Whether there was an alternative remedy available to the applicant
• Whether the balance of convenience favoured granting the stay of execution
• The principles applicable to applications for stay of execution pending appeal or rescission proceedings

The Provisional Order for stay of execution was granted in terms of the draft as amended. The warrant for ejectment against the applicant was stayed pending the hearing of the applicant's application for rescission of judgment under case number HC 7304-21. The second respondent (Messenger of Court) was ordered to stay execution of the warrant for civil ejectment against the applicant pending determination of the rescission application.

In an application for stay of execution pending appeal or rescission proceedings: (1) An appellant has an absolute right to appeal and test the correctness of a lower court's decision before being required to satisfy the judgment; (2) Execution before determination of the appeal will negate this absolute right and is generally not permissible; (3) The applicant must demonstrate a prima facie case with prospects of success; (4) The applicant must prove they will suffer irreparable harm or prejudice if execution proceeds; (5) The balance of convenience must be considered; (6) There must be no other available remedy to protect the applicant's rights; (7) The court possesses wide common law discretion to grant a stay where real and substantial justice requires it or where injustice would otherwise be done; (8) Mere allegation of hardship is insufficient - the applicant must satisfy the court of irreparable harm; (9) The need to act in an urgent application arises when the applicant becomes aware of the judgment, not necessarily when judgment is delivered.

The court noted that whether the application for rescission of default judgment was filed within prescribed timeframes under Rule 27 of the High Court Rules, 2021 would be dealt with at the appropriate time when hearing the actual application, and it would be premature to make that determination in the stay application. The court observed that new evidence may be accepted by an appeal court in certain circumstances, citing Cold Chain Ltd v Makoni, but declined to deal with the admissibility of the agreement of allocation document as this might be subject matter for argument during appeal proceedings if the matter reached that stage. The court noted that where an appeal is brought with no bona fide intention of testing correctness but merely to buy time or harass the successful party, the court may in its discretion allow execution notwithstanding the appellant's right to appeal. The court emphasized that mercy should be sought in the action itself before judgment is given, not afterwards, but distinguished this principle from cases where irreparable harm can be demonstrated.

This case demonstrates the Zimbabwean High Court's approach to applications for stay of execution pending rescission proceedings. It affirms the wide common law discretion courts possess in granting stays of execution, emphasizing the importance of protecting an appellant's absolute right to appeal and have their case heard. The case illustrates the application of principles relating to prima facie case, irreparable harm, balance of convenience, and absence of alternative remedies in urgent applications. It also demonstrates judicial consideration of housing rights and the severe consequences of eviction in determining where justice lies. The case confirms that courts will exercise their discretion to prevent irreparable prejudice and ensure real and substantial justice, particularly in property disputes involving residential occupation.