Upset Investments (Private) Limited v Chitungwiza Municipality

The applicant (plaintiff in HC 7649/14) sued the respondent for payment of US$46,332.00 for hiring out heavy duty equipment and machinery. The respondent contested the full amount but admitted in its pleadings to owing US$37,619.50. At a pre-trial conference held on 4 March 2015 before Bere J, with the respondent represented by legal counsel (Mr T Marume), judgment was granted in the admitted amount of US$37,619.50, with the balance and costs referred to trial. On 17 March 2015, the respondent appealed to the Supreme Court against the judgment, claiming the court erred in granting judgment without consent or striking of the defence, and that the court should have considered a pending application for consolidation (HC 1521/15) with another matter (HC 6245/14) involving the same parties. The applicant then sought leave to execute the judgment pending appeal.

• Whether leave to execute pending appeal should be granted
• Whether the appeal was noted bona fide or was frivolous and vexatious
• Whether the judgment granted at pre-trial conference was a consent order
• The relevance of a formal admission in pleadings
• The factors to be considered when granting leave to execute pending appeal

1. The applicant is hereby granted leave to execute the judgment granted in HC 7649/14. 2. The respondent to pay applicant's costs on an attorney-client scale.

A formal admission made in pleadings is binding on the court and cannot be ignored unless withdrawn. Where a party has clearly admitted liability in pleadings and prayed for an order to that extent, a judgment endorsing such admission is proper and an appeal against it lacks bona fides. When determining whether to grant leave to execute pending appeal, the court must consider: (1) potential irreparable harm to both parties; (2) prospects of success on appeal; (3) whether the appeal is frivolous, vexatious or noted merely to gain time or harass the other party; and (4) the balance of hardship. A party opposing execution must establish more than bold assertions regarding potential prejudice—it must demonstrate the nature and extent of the hardship or injury it will sustain. An appeal noted against a judgment endorsing a party's own admission constitutes an abuse of court process and demonstrates insincerity warranting costs on a higher scale.

The court observed that consent orders can be granted at common law apart from the provisions of Rule 54, citing Margaret Masulani v Fannel Masulani HH 68/03 and Washaya and Washaya 1989 (2) ZLR 195 (H). The court noted that the fact that Bere J only granted the admitted component of the debt and referred other issues to trial pointed to agreement between the parties. The court commented that whilst consolidation is a convenient way of bringing matters with the same parties having inter-related issues to be dealt with at once, the refusal by Bere J to be held up by a consolidation application was not fatal to the judgment. The court also observed that simple mathematical calculation would show that set-off could be effected irrespective of the existing order, given the amounts involved in the matters sought to be consolidated.

This case is significant for reinforcing the principles governing leave to execute pending appeal in Zimbabwean law. It emphasizes that formal admissions in pleadings are binding and cannot be withdrawn through an appeal process. The case demonstrates the court's willingness to identify and reject frivolous appeals designed to delay execution of judgment, particularly where a party has clearly admitted liability in pleadings. It also clarifies that consent orders can be granted at common law without strict compliance with procedural rules, and that pending consolidation applications do not necessarily bar a court from proceeding with a matter where one party has admitted liability.