Shirley Jean Scott v Tobias Zangarai & Anor

### Preamble
1
HB 271/20
HC 1974/20
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SHIRLEY JEAN SCOTT

Versus

TOBIAS ZANGARAI

And

THE SHERIFF OF THE HIGH COURT N.O.

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 16 & 19 NOVEMBER 2020

N. Mazibuko for the applicant

Ms A. S. Ndlovu for the 1st respondent

Urgent Chamber Application

MOYO J:	This is an urgent chamber application for a stay of execution of the order of this court in HC 2773/18 pending the determination of an application to the Supreme Court for condonation and extension of time within which to note an appeal.  Such application is filed under SCB 107/20.

The facts leading to this application are that following a divorce order applicant and her husband had their matrimonial home sold so that they could share the net proceeds therefrom.  The property was bought by 1st respondent who has since obtained transfer of same.  Following disputes relating to the sale in question, applicant sought cancellation of the agreement of sale with 1st respondent seeking eviction of the applicant.  This honourable court heard the 2 matters and ruled in favour of the 1st respondent thereby granting an order for applicant’s eviction.  Applicant noted an appeal to the Supreme Court out of time as she did not serve all the respondents with the prescribed period.  She then filed an application for condonation at the Supreme Court following her failure to serve all the parties on time, it was struck off the roll for various anomalies.  Applicant then filed another application for condonation and extension of time at the Supreme Court.

It is that application that she seeks to have the execution stayed for.  She seeks an order that the execution be stayed pending the application for extension of time to appeal at the Supreme Court.  1st respondent has opposed the application primarily on the basis of lack of urgency and that there is no appeal and lack of prospects of success on both the pending applications and the intended appeal.

I find that this application is misplaced and cannot succeed for the following reasons:

There is no appeal pending before the Supreme Court.  An order of a lower court is suspended only upon the noting of an appeal.  In this case, there is no appeal that has been noted and therefore there is none pending.  There can never be an appeal that is pending warranting a stay of execution of a lawful order of a court unless and until the application for condonation and extension of time has been dealt with and granted and a notice of appeal has actually been filed.  The order of a court remains in effect until a notice of appeal has been properly filed.

It is common cause that the order of this court for the eviction of the applicant remains extant.  The applicant filed a notice of appeal but failed to abide by the rules of the Supreme Court resulting in the matter being struck off the roll.  She has filed another application to the Supreme Court which has not been heard and granted and until that happens and a valid notice of appeal filed it cannot be in the interests of justice to stay the execution of a lawful order of this court which remains extant.  If applicant wants to stay execution, applicant should file a valid notice of appeal at the Supreme Court, which notice will automatically suspend the order of this court.

This honourable court cannot stay the execution of a lawful order that remains extant solely on the basis that applicant is trying to lodge an appeal.

I hold the view that trying to lodge an appeal cannot be sufficient reason to stay a lawful order of court.  The attempt to be condoned and be granted extension of time is subject to the discretion of a judge of the Supreme Court and until such discretion has been exercised in applicant’s favour and a valid notice of appeal filed, there is nothing causing this court to suspend execution of a lawful order that remains extant.  Refer to the cases of Mercy Jonga vs BarRy James Warwick & Anor HH-231-18 and that of NMB Bank Ltd v Goto HH-187-17 where similar sentiments were expressed.

I accordingly find that there being no valid appeal noted, applicant has failed to make a case for the relief she seeks and I consequently decline to exercise my discretion in applicant’s favour.

I accordingly dismiss the application with costs.

Calderwood Bryce Hendrie & Partners, applicant’s legal practitioners

Messrs Webb Low & Barry, 1st respondent’s legal practitioners