RITENOTE PRINTERS (PVT) LTD v A ADAM & CO & ANOR 2011 (1) ZLR 521 (S)

Flynote

Appeal — noting of — effect — appeal from magistrates court — party wishing to execute despite notice of appeal must apply for order of execution — unsuccessful party wishing to stay execution must apply for such relief

Headnote

The first respondent instituted an action in the High Court for the eviction ^ε of the applicant from two premises it had leased to the applicant. It also sought the payment of arrear rentals. This was done in two separate actions. The first action was referred to trial and a trial date was set. The other action was still at the pre-trial conference stage. At that stage the first respondent withdrew its actions in the High Court and then instituted ^ε the same proceedings in the magistrate's court. It was successful in the magistrate's court and the magistrate's court ordered the eviction of the applicant as well as the payment of arrear rentals. Dissatisfied with the magistrate's judgment the applicant appealed against it to the High Court. The applicant, most probably because of the wording of s 40(3) of the Magistrates Court Act [Chapter 7:10], concluded that the noting of the appeal would not suspend the order of the magistrate's court and accordingly filed an application in the magistrate's court for the stay of execution pending the determination of that appeal. The magistrate dismissed the application on the ground that she could not grant such relief, as the noting of the appeal had suspended the operation of her order. In spite of the ruling that the operation of the order had been suspended, the first respondent instructed the messenger of court to evict the applicant; this was duly done.

Held, that what happens upon the noting of an appeal against the magistrate's judgment is governed by s 40(3) of the Act. The magistrate's ruling — that the noting of the appeal suspended the operation of her order — was erroneous. A proper reading of the section reveals that it confers on the magistrate the power to stay execution despite the noting of an appeal. It also confers on the magistrate the power to order execution despite the noting of an appeal. It follows, therefore, that for the magistrate to exercise the discretion in terms of s 40(3) of the Act, the party seeking to have the discretion exercised in its favour has to make an application. Upon the making of such an application the magistrate exercises the judicial discretion and makes a proper determination. Thus a party, in this case the first respondent, that wishes to execute despite the noting of an appeal has to apply for the magistrate to exercise the discretion in its favour before it can execute the judgment. Equally, if the losing party, in this case, the applicant, wishes to stay execution despite the noting of an appeal, it has to apply for such relief