MOHAMED v NOORMAHOMED & ANOR 2010 (2) ZLR 260 (H)

Flynote

Appeal — civil matter — appeal against interlocutory order or interlocutory judgment — order granting leave to execute pending appeal — such order interlocutory — leave to appeal required — appeal pending against main judgment — not permissible to grant stay of execution by means of urgent chamber application

Headnote

The first respondent obtained an eviction order against the applicant. The applicant noted an appeal against that order. The first respondent then applied for and obtained leave to execute pending appeal. The applicant noted an appeal against that order. The first respondent proceeded with the execution, obtaining a warrant of ejectment. The applicant brought an urgent application to prevent the ejectment from taking place. The applicant's counsel conceded that the appeal against the order granting leave to execute was invalid, as such order was interlocutory in nature. He argued, however, that the court could deal with the matter on the merits as the first appeal was still pending and could, on good grounds grant a stay of execution, after considering such factors as the prospects of success on appeal, the potentiality for irreparable harm or prejudice to either party if stay of execution is granted or is not granted and the balance of inconvenience or hardship to either party. He argued that real and substantial justice enjoined the court to grant the application.

Held, that the application was made on the basis of the second, admittedly invalid, appeal. In the papers filed of record, the argument had been that the order for leave to execute judgment pending appeal, though interlocutory, was definitive in nature hence appealable. The applicant was completely changing the thrust of his argument and new papers need to be filed.

A Held, further, that there were also practical problems. Firstly, the court could not meaningfully deal with the merits and demerits of the matter unless it was sitting as an appellate court. That appeal was still pending and could not be partially dealt with under the guise of an urgent chamber application, particularly as the records of the proceedings in the lower court were not even before the court. Secondly, the applicant was simply trying to reverse the decision of the lower court when he knew the decision was not appealable. Both parties had argued the matter before the lower court, which exercised its discretion and granted the order for leave to execute pending appeal. The High Court could not review this decision in the absence of a proper application for review, as opposed to an urgent chamber application in the form and format filed by the applicant.