U-Tow Trailers (Pvt) Ltd v City of Harare and Superlux Trailers (Pvt) Ltd

In December 1994, the applicant entered into a lease agreement with the 1st respondent (City of Harare) for premises at 9 Market Street, Eastlea, Harare, renewable from time to time and due to expire on 30 March 2010. In April 2008, the applicant and 2nd respondent entered into a joint venture to build trailers and panel beat motor vehicles, and the 2nd respondent moved onto the premises. The joint venture failed but the 2nd respondent remained on the premises. In January 2009, the 1st respondent summarily terminated the lease agreement claiming the applicant had sub-leased to the 2nd respondent in breach of the lease agreement, and proceeded to lease the premises to the 2nd respondent. The applicant successfully obtained judgment in case HH 103/09 nullifying the termination and ordering ejectment of the 2nd respondent. On 29 October 2009, the 2nd respondent appealed, prompting this application for leave to execute pending appeal.

• Whether leave to execute pending appeal should be granted
• Assessment of prejudice to both parties if leave is granted or refused
• Whether the 2nd respondent has prospects of success on appeal
• Where the balance of convenience lies
• Whether the 2nd respondent has legal entitlement to remain in occupation of the premises

1. The applicant was granted leave to execute the judgment granted on 21 October 2009 in case HH 103/09 pending the appeal noted by the 2nd respondent. 2. The 2nd respondent was ordered to pay the costs of the application.

In an application for leave to execute pending appeal, where both parties are likely to suffer prejudice, the determining factor is whether the respondent has prospects of success on appeal. A party cannot rely on an invalid sublease to establish legal entitlement to remain in occupation of premises, particularly where the sublease was entered into in breach of the main lease agreement without the lessor's authority. Where an appeal appears to have been noted merely to delay execution and the appellant has no prospects of success, and the applicant would suffer greater prejudice (including loss of goodwill built over many years), the balance of convenience favors granting leave to execute pending appeal.

The court observed that the 2nd respondent would be building its own goodwill if it remained in occupation to the detriment of the applicant. The court also noted that the appeal appeared to have been noted merely to delay the inevitable, suggesting it was frivolous and vexatious without bona fide intent to reverse the judgment but rather intended to gain time and harass the applicant.

This case is significant in Zimbabwean law (the judgment is from Zimbabwe, not South Africa) as it clarifies the application of the principles governing leave to execute pending appeal, particularly emphasizing that where both parties would suffer prejudice, the determinative factor is the prospects of success on appeal. It also reinforces principles regarding subletting in breach of lease agreements and the consequences of such breaches. The case demonstrates that appeals noted without genuine prospects of success and merely to delay execution will not prevent leave to execute being granted where the applicant would otherwise suffer irreparable harm.