Varaidzo Mateko v Zenus Banda

The respondent was a tenant of the late Eunice Taylor, who owned property Lot 5 of Lot 18 and 19 Parktown Extension. Eunice Taylor sold the property to the applicant through public auction, rejecting an offer made by the respondent. The applicant gave the respondent notice to vacate but he refused, and from March 2007 occupied the premises without paying rent. The respondent filed suit against Eunice Taylor seeking to set aside the sale and have the property sold to him. The applicant was joined as a party and filed a counter-claim for eviction and holding over damages. During trial, the respondent withdrew his claim of right of first refusal, leaving only the issue of offer and acceptance. On 26 November 2010, the High Court (Uchena J) dismissed the respondent's claim and ordered him to vacate by 31 December 2010 and pay holding over damages of US$380 per month from 1 February 2009. The respondent noted an appeal on 14 December 2010. The applicant then sought leave to execute the judgment pending the appeal.

• Whether leave to execute a judgment pending appeal should be granted
• Whether the respondent would suffer irreparable harm if leave to execute were granted
• Whether the applicant would suffer irreparable harm if leave to execute were refused
• Whether the appeal had reasonable prospects of success
• Whether the appeal was frivolous, vexatious or noted merely to delay execution

Leave to execute the judgment dated 1 December 2010 in HC 5332/06 pending appeal was granted. The respondent was ordered to pay costs of the application.

At common law, the execution of a judgment is automatically suspended upon the noting of an appeal, but a party may apply for leave to execute pending appeal. In exercising its discretion to grant or refuse such leave, the court must determine what is just and equitable in all circumstances, having regard to: (1) the potentiality of irreparable harm to the appellant if leave is granted; (2) the potentiality of irreparable harm to the respondent if leave is refused; (3) the prospects of success on appeal, including whether the appeal is frivolous, vexatious or noted for an indirect purpose such as delay or harassment; and (4) the balance of hardship. Where an appeal lacks merit and appears designed merely to delay execution rather than to genuinely seek reversal of the judgment, leave to execute pending appeal should be granted. The onus is on the applicant for leave to execute to establish special circumstances justifying such leave.

The court noted that it is immaterial what a party subjectively believed regarding contract formation; the objective test of offer and acceptance applies. A tenant who deliberately refuses to pay rent and disputes the landlord's title cannot benefit from the statutory protection otherwise afforded by Rent Regulations. Issues not specifically pleaded cannot be considered by the court, and the court cannot be faulted for failing to set off unpleaded claims. Where material portions of a judgment were made by consent of the parties, this strengthens the inference that any subsequent appeal is not bona fide but designed to frustrate the successful party.

This judgment is significant as it applies and clarifies the common law principles governing applications for leave to execute pending appeal in Zimbabwe (applicable to South African jurisprudence given the shared legal heritage). It demonstrates how courts exercise their discretion in balancing the interests of parties when execution is sought pending appeal, emphasizing that the common law rule automatically suspends execution upon noting an appeal to prevent irreparable damage to the appellant, but leave may be granted where the appeal lacks merit and appears designed to delay justice. The case illustrates the proper application of the test from South Cape Corporation regarding prospects of success, irreparable harm, and whether an appeal is frivolous or vexatious.