Zekia Mujaho v Turnstead Investments (Pvt) Ltd

The applicant purchased immovable property known as Stand 1201 Greendale Township through a sale in execution conducted by the Sheriff and became the registered owner under Deed of Transfer No. 3945/2018. After acquiring title, the applicant sought to recover the property from the respondent, which had failed to vacate despite being given notice. In Case No. HC 8351/18, the court granted an ejectment order on 16 January 2019, ordering the respondent to vacate the property and pay holding over damages of US$1600 per month from 1 August 2018 until vacant possession, plus costs on an attorney-client scale. On 23 January 2019, the respondent filed an appeal (SC 19/19) against the entire judgment. The applicant then sought leave to execute the judgment pending the appeal.

• Whether leave to execute pending appeal should be granted
• Whether the appeal noted by the respondent has prospects of success
• Whether the preponderance of equities favours granting leave to execute
• Whether the grounds of appeal constitute valid defences to an actio rei vindicatio

The applicant was granted leave to execute the judgment in Case No. HC 8361/18 notwithstanding the noting of an appeal against it. The respondent was ordered to pay the costs of the application.

When considering leave to execute pending appeal, the court must consider: (1) the prospects of success of the appeal, and (2) the preponderance of equities between the parties. In property matters based on actio rei vindicatio, grounds of appeal that do not constitute recognized defences to the actio (ownership and unauthorized occupation) will not establish prospects of success. The preponderance of equities favours a registered owner who has paid full purchase price and obtained transfer, and such owner should not be kept out of possession where the appeal does not seek to set aside the title itself. An appeal that seeks to allow continued occupation of property registered in another's name, without challenging that title, negates the right of ownership and has no prospects of success.

The court observed that the appeal appeared to be meant to harass the applicant. The court also noted it was inconceivable how the respondent's appeal could succeed without the applicant's title to the property being set aside, yet the appeal did not seek such relief. The court commented on the fact that Charles Mataure, who was mentioned in the grounds of appeal as the alleged owner, had actually appeared at the hearing to represent the respondent and never claimed a right to be joined as a party.

This case reinforces the principles applicable to applications for leave to execute pending appeal in Zimbabwe, particularly in property disputes involving actio rei vindicatio. It demonstrates the court's approach in assessing prospects of success by examining whether grounds of appeal constitute valid legal defences to the cause of action. The judgment emphasizes that registered ownership carries significant weight in determining where the balance of equities lies, and that appeals which do not challenge the fundamental basis of title (while seeking to prevent enforcement of ownership rights) are unlikely to succeed. The case also illustrates that courts will not allow the appeal process to be used as a tool for harassment or to indefinitely delay enforcement of legitimate property rights.