National Employment Council for the Commercial Sectors of Zimbabwe v Image (Private) Limited t/a Sunshine Funeral Services and Shamiso Jane Chiutsi and Clemence Chikochi and Wonder Chitunhu

### Preamble
1
HH132-12
HC 2153/07
REF CASE NO. HC 3796/06
NATIONAL EMPLOYMENY COUNCIL FOR THE
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============================== NATIONAL EMPLOYMENT COUNCIL FOR THE COMMERCIAL SECTORS OF ZIMBABWE
versus
IMAGE (PRIVATE) LIMITED t/a SUNSHINE FUNERAL SERVICES
and
SHAMISO JANE CHIUTSI
and
CLEMENCE CHIKOCHI
and
WONDER CHITUNHU

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 23 May 2012

JB Colegrave, for the applicant
1st, 2nd, 3rd and 4th respondents in person

Opposed Application

HUNGWE J: After hearing argument, I granted the application and indicated the reasons will follow. These are they. This is an application for leave to execute judgment pending an appeal against the judgment dated 7 March 2007 given under case HC 3796/06.

On 7 March 2007 applicants obtained judgment against the respondents. After a week, the applicant instructed the Deputy Sheriff to serve a copy of the order of this court upon first respondent. On 19 March 2007 the respondents served upon the applicant’s legal practitioners a notice of appeal which had been filed with the Supreme Court on 14 March 2007 and with the High Court on 19 March 2007.


In its respondent relies on an alleged agreement of sale which is said to have been concluded between the parties. Applicants however point out that the issue as to whether or not the leased property had been sold by the applicant to first respondent was not an issue for determination in the trial. On this ground alone, the applicant prays that the appeal will in all probability be dismissed.

Applicant also points out to other features which suggest that what purports to be a letter from the applicant’s general secretary to the first respondent dated 15 September 2002 annexed to the notice of appeal is a forgery. First, despite repeated requests for an original of the letter, such an original was not produced at trial. Second, 15 September 2002 was Sunday. Applicant’s offices are not open for business on Sundays. Third, applicant at the time was not in direct communication with the first respondent at stand number 390, Salisbury Township, Harare, which is the leased premises. Applicant did not take occupation of this leased premises till 1 October 2002. Therefore on 15 September 2002 it was not the first respondent’s address for communication purposes. During the month of September 2002, first respondent’s address was 94 Kaguvi Street, Harare as will be apparent from their letter to CB Richard Ellis dated 2 September 2002.

Numerous other deficiencies pointing to the forgery of the letter attached to the notice of appeal are set out.

The court has a wide discretion to grant or refuse leave to execute pending appeal.

See ZDECO (Pvt) Ltd v Commercial Carers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 at p93D-63A)

In exercising this discretion the court considers what is just and equitable in all the circumstances of the case. In the present case it is my respectful view that the appeal has no prospects of success. I am satisfied that the appeal has been noted with no bona fide intention of seeking to reverse the judgment, but merely to buy time. I merely need to refer to the numerous deficiencies which are noted by the applicant. On that basis alone, one cannot say that the appeal was noted in good faith. As such it is just and equitable that leave to execute pending appeal be granted. It was after an assessment of these factors that I granted the order for execution pending appeal.

There following order is therefore granted.

1. Application for leave to execute pending appeal be and is hereby granted.

2. Respondents to bear applicant’s costs.

Coghlan Welsh and Guest, applicant’s legal practitioners
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