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HH 29-24
HC 7679/23

JOCKSTAR INVESTMENTS (PRIVATE) LIMITED

versus
CHIPO MUZIRWA

HIGH COURT OF ZIMBABWE

MUCHAWA J
HARARE, 12 December 2023 & 19 January 2024

Urgent Chamber Application

Mr A Mtima, for the applicant

Ms D Sanhanga, for the respondent

MUCHAWA J: This is an urgent chamber application for stay of execution in

which the following provisional order is sought:-

“TERMS OF THE ORDER SOUGHT

That the respondent show cause why a final order should not be made in the following
terms:-
1. That the provisional order is hereby confirmed.
2. That the judgment under HC 4309/22 be and is hereby rescinded and set aside.
3. The first respondent to pay costs of suit.

INTERIM RELIEF GRANTED

Pending determination of case number HCH 7583/23, the application be and is hereby
granted with the following relief:
9. The judgment under HC 4309/22 be and is hereby stayed.”

The respondent is opposed to the application being granted. Points in limine had been
raised but were abandoned in favour of having the matter decided decisively on the merits.
The applicant and the respondent entered into an agreement of sale of stand number
2654 of Zizalisari Lot 4 Bannockburn Township Harare. The material terms of the agreement
were that the respondent would pay the purchase price of US$17 000. She also had to pay a
development fee in the amount of US$6 500. A clause provided that the stand size, shape
and number might be changed. The applicant undertook to tender transfer of the stand after
all the conditions in the agreement had been met.
The respondent paid the US$17 000 and US$6 500. The applicant proceeded to issue
a certificate of compliance in 2018.
On 30 June 2022 the applicant issued summons against the respondent under case
number HC 4309/22 alleging that though the respondent had duly paid what was due in terms
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of the agreement, there was now a variation in the stand size from 2015 square meters due to
the Surveyor General’s work to 2002 square metres. It was further alleged that respondent
had refused to accept the adjustment to the stand size and the applicant had duly informed her
that they were proceeding to cancel the agreement.
It was prayed that the court should confirm cancellation of the agreement of sale
between the parties and the applicant elected to refund the amount paid by the respondent.
The respondent entered appearance to defend on 7 July 2023 and requested further
particulars on 20 July 2022. These were only availed on 23 September 2022. A request for
further and better particulars was made on 29 September. These were availed on 10
November 2022.
The respondent filed a claim in reconvention on 13 February 2023 in which an order
compelling applicant to execute all documents required and necessary to pass the rights, title
and interest in stand number 2654 of Zizalisari Lot 4 Bannockburn Township, Harare was
sought. It was served on the applicant on 29 June 2023 yet the very first one was filed on 13
February 2023. On 9 August 2023 a notice to plead and intention to bar was filed and the bar
was effected on 22 August 2023.
Thereafter the respondent filed an application for dismissal for want of prosecution
which was deemed abandoned in terms of r 18(8) and (9) which requires one to pay security
of costs within five days.
It is alleged that it is the applicant which noted the above development and proposed a
round table meeting but was in no show at the several attempts to hold this.
Thereafter the respondent proceeded to file for default judgment in terms of r 23(2) of
the High Court Rules 2021. The applicant purportedly filed their plea to the claim in
reconvention on 28 September 2023 in the face of an effective bar.
No attempt was made to have the bar uplifted both before MUSITHU J and MHURI J
nor was any written application for upliftment of bar made in terms of r 39(49) of the High
Court Rules, 2021.
When the matter appeared before MUSITHU J, on the unopposed he removed it from
the roll on account of a technical error in the application. When such a request was placed
before MHURI J, she declined to uplift the bar on the basis that the applicant had had prior
numerous occasions to do so but had failed.
Resultantly on 1 November 2023 default judgment was granted in favour of the
respondent herein granting her prayer in the claim in reconvention which ordered the
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applicant to execute all documents required and necessary to pass the respondent’s rights and
interests held by applicant in respect of Stand Number 2654 of Zisalisari Lot 4 Bannockburn
Township, Harare amongst other things. It is this order whose execution is sought to be
stayed in these proceedings to enable the applicant to prosecute an application for rescission
of judgment.
The Law
In Santam Ltd v Norman & Anor 1996 (3) SA 502 (C) @ 505 E – F it was held as
follows:-
“The court has a discretion to order the staying of the execution of an order of court for such a
period as it deems fit. It is a discretion which should be exercised judicially, but generally
speaking, a court will grant a stay of execution where real and substantial justice requires it or
where injustice would otherwise be done.”

See also Chibanda v King 1983 (1) ZLR 116 (SC) and Mupini v Makoni 1993 (1)
ZLR 80 (S).
In Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H) it was held that the
court should not aid a litigant to harass a victorious respondent by alleging non-existent harm.
The reason why a court may grant a stay of execution pending the determination of
the main matter or appeal is the inherent power reposed in it to control its process. See
Cohen v Cohen 1979 (3) SA 420 @ 423 B – C.
“Execution is a process of the court and the court has inherent power to control its own
process subject to the rules of court. Circumstances may arise here a stay of execution is sought
hence should be granted on the basis of real and substantial justice. Thus where injustice would
otherwise be caused the court has the power and would generally speaking grant relief.”

In the exercise of its discretion of whether to stay execution pending an application

for rescission of judgment, the court looks at several factors which include the prospects of
success in the intended application for rescission of judgment, the irreparable harm to the
applicant if stay is not granted, the balance of hardship for the parties concerned and any
other special circumstances. See Damson v Dzipange & Anor HH 830/22.
I turn now to apply the law to the case at hand.
Whether the applicant has prospects of success in the application for rescission
In the case of Pastor Davias Mburuma v United Apostolic Faith Church (UAFC) &
The Sheriff of Zimbabwe HH 142/15, MATHONSI J (as he then was) made the following
remarks:-
“It is true that I am not dealing with the rescission of judgment application which the
applicant has filed, but in deciding whether to exercise my discretion to grant the applicant an
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indulgence of a stay of execution, I must consider whether he presents good and sufficient cause (r
63(2)) for a rescission of judgment. In other words it is imperative to peep into the rescission of
judgment application to see if it has merit before exercising my discretion in favour of the
applicant.

Where the application for rescission itself lacks merit, a court should not grant the indulgence
of a stay of execution because it would offend against the time tested principle of our law that
there should be finality in litigation. In such circumstances the default judgment would
prevail and therefore a stay of execution should purposely be refused. The onus is on the applicant in
such an application to satisfy the court that he is entitled to an indulgence.”

As appointed out by Ms Sanhanga, the applicant’s founding affidavit makes no

averments on prospects of success. All that is said is that there is a pending application for
rescission of judgment. The application for rescission of judgment itself is not attached to this
application to enable the court to peep into it and assess prospects of success. It is as if the
applicant is saying the granting of a stay of execution is his upon merely asking for it. The
applicant has dismally failed to discharge the onus placed upon it. It is not enough to say that
if the stay is not granted then the application for rescission would be merely academic.
In submissions before me, Mr Mtima sought to introduce new issues to justify
prospects of success to the effect that it was improper to grant an order in respect of a
counterclaim which failed to consider a main matter which was pending. He referred the
court to the case of CABS v Rautenbach 2009 ZLR, 319 (SC). A search for this matter under
this citation was unsuccessful.
Ms Sanhanga contended that an application stands or falls on the founding affidavit
and it was improper for Mr Mtima to make his case in oral submissions by raising this point
for the first time before me.
It was also crafty of Mr Mtima to suggest that the failure to attach the application for
rescission could be cured by the court having regard to its own records as per Mhungu v
Mutindi 1986 (2) ZLR 171 (SC). The onus was on the applicant to place its case before the
court and not for the court to go hunting for records and pleadings to locate what should have
been placed before it.
If one has regard to the history of this matter, it might explain the many hurdles in the
applicant’s path in the application for rescission of judgment. How does the applicant
explain the initial delay in supplying the further particulars some two months after the
request. Further and better particulars requested on 29 September 2022 were only supplied on
10 November 2023. The claim in reconvention which was filed on 13 February 2023 and re-
served on 29 June 2023 had a plea filed after a bar had been effected on 22 August 2023.
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The improperly filed plea was only filed on 28 September 2023. There was no attempt to
have the bar uplifted when the occasion presented itself before MUSITHU J and MHURI J.
Even without a peep into the application for rescission of judgment, the history of the
matter paints a rather gloomy picture showing no prospects of success.
Whether the applicant will suffer irreparable harm if stay of execution is not granted
All the applicant says in the founding affidavit is that execution of the court order will
cause significant prejudice to the applicant as the property is now owned by another party due
to cancellation of the agreement between the parties. There is no allegation of irreparable
harm arising as stated in Chibanda v King 1985 (1) ZLR 116. It is not enough to merely
allege hardship.
If indeed the property no longer belongs to the applicant, what would be the
irreparable harm suffered.
My considered opinion is that the applicant has not established the irreparable harm it
stands to suffer. In oral submissions, Mr Mtimu explained that if stay of execution is not
granted there would be chaos and a plethora of litigation. Does this amount to irreparable
harm it stands to suffer. I think not. The applicant needs to simply deal with the legal
consequences of what seems to me to be a double allocation of the same piece of land. The
applicant in its papers seems ready to refund to resolve this. It simply has to put that into
motion with either of the two parties.
Special Circumstances
Ms Sanhanga pointed to some material non disclosures by the applicant disentitling it to
the relief sought. It was contended that the entire basis of the urgent application is the letter
by the respondent dated 23 November 2023 in which the applicant’s attention was drawn to
the terms of the order by MHURI J and the need to execute.
In para 4.6 of the founding affidavit the applicant says it uploaded the application for
rescission on 21 November 2023 and it was issued on 22 November 2023. A perusal of the
application under HC 7583/23 shows however that it was issued on 27 November 2023.
The narrative presented by the applicant seeks to show that it was the respondent who
was spurred into action by that application for rescission. It is the other way round. This
kind of material non-disclosure and lack of candidness with the court is that which the court
frowns on as not showing urgency. See Ncube v Mpofu & Anor HB 121/11 and Nehanda
Housing Cooperative Society & 5 Ors v Simba Moyo & Ors HH 987/15.
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No explanation has been tendered as to why the applicant did not apply for upliftment
of bar in the two opportunities presented before MUSITHU J and MHURI J. Further, there is no
explanation as to why no written application was filed.
It is my finding that the applicant has not made a good case that real and substantial
justice favours the granting of a stay of execution.
Whether the applicant should pay costs on a higher scale
Ms Sanhanga prayed for costs on a higher scale based on the conduct of the applicant
and relied on the case of Kauma v Vambe & Anor HH 883/22.
Mr Mtima submitted that there is no basis for costs on a higher scale and that costs
should not deter parties from accessing justice. Further, it was observed that costs are within
the court’s discretion.
Costs on a higher scale are awarded only in exceptional circumstances where a party’s
conduct is mischievous and objectionable and the cause of all costs. In the case of Kauma v
Vambe & Anor (supra), the applicants had concealed information and even lied. They sought
to play hide and seek with the court and had taken the law into their hands and unlawfully
evicted the respondents. Such conduct is not too different from that exhibited herein. Costs on
a higher scale are justified.
Disposition
1. The application for stay of execution be and is hereby dismissed with costs on a
higher scale.

Jiti Law Chambers, applicant’s legal practitioners

Rungwadi & Company, respondent’s legal practitioners