CHEMATRON PRODUCTS (PVT) LTD v TENDA TRANSPORT (PVT) LTD & ANOR 2013 (2) ZLR 365 (H)

Flynote

Appeal — noting of — effect — judgment appealed against suspended — rationale for practice — position in English practice — need for unsuccessful party D to apply for stay of execution pending appeal — desirability of following such practice in Zimbabwe

Headnote

In this country, unless otherwise provided, the common law rule of practice is that the noting of an appeal automatically suspends the execution of the judgment appealed against. The party that succeeds in the court of first instance has to seek the leave of the court to execute the judgment whilst the appeal is pending. The rationale for this rule is that there is need to prevent an irreparable damage from being caused to the appellant. On the other hand, if the purpose of the rule is to prevent an irreparable damage from being caused to the intended appellant, the automatic suspension of the judgment or decision appealed against may equally cause an irreparable injustice or harm to the respondent, who would have been the successful party. It is he who is prevented from enjoying the fruits of his success in the court of first instance.

In England, the noting of an appeal does not automatically suspend the execution of the judgment appealed against. The intending appellant must apply, and show special circumstances, for the execution to be stayed. The rationale for the English position is that a successful litigant should not be deprived of the fruits of his litigation. It should be for the unsuccessful party to have to seek leave for the judgment to be suspended if an appeal is noted. That party should be the one required to show that special circumstances exist which justify the suspension sought.

The system that prevails in Zimbabwe must have the effect of encouraging some debtors or persons with doubtful claims to appeal simply in order to play for time. Since an appeal automatically suspends execution, a debtor who wants to delay may as well appeal, even if he knows the appeal is hopeless or even if he knows that he will abandon it. At least it will buy him time. Our rule tends to encourage an abuse of the court process. In practice, a party that loses the first round in the court of first instance is less likely to want to press for the expeditious determination of the appeal, especially as the outcome is uncertain. Given the inevitable and often inordinate delays experienced in the appeal process, the appellant is often content to let matters drag on and, in the process, frustrate the respondent who was the successful party. The respondent has to wait patiently before he can enjoy the fruits of his success. The situation can be quite desperate in eviction cases. Where the landlord obtains an order for the ejectment of the tenant from the rented premises for which the tenant is not paying rent and the tenant appeals the order, the landlord can be stuck with the intransigent tenant for months on end, even years, unless he obtains leave to execute.

The situation obtaining in the English legal system has been adopted in Zimbabwe in maintenance and labour cases. The appellant must apply for the order appealed against to be suspended.