Reajin Enterprises (Private) Limited v Prosecutor General and Emmanuel Ndemera and The Messenger of Court, Mutoko

### Preamble
1
HH 683-25
HCH 5220/25
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REAJIN ENTERPRISES (PRIVATE) LIMITED

versus

PROSECUTOR GENERAL

and

EMMANUEL NDEMERA

and

THE MESSENGER OF COURT, MUTOKO

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 21 & 29 October 2025

Urgent Chamber Application

Ms T. Rusinahama, with her, A. Rubaya, A. Chimhofu & P. Chivhenge, for the applicant

Ms P. A. Gutu for the first respondent

K. Gama for the second respondent

ZHOU J: This is an urgent chamber application for an order staying the execution of a fine and an order of restitution granted in criminal proceedings against an entity known as Reajin Mine.  The restitution order was granted consequent upon a conviction of the accused therein of theft of gold ore as defined in s 113(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with s 379 of the Mines and Minerals Act [Chapter 21:05].  The precise sentence passed reads as follows:

“To pay a fine of US$3000 in default of payment attachment of the company assets by the Messenger of Court.  In addition the accused is to restitute the complainant in the sum of US$875 667.67 in default of payment attachment of the company assets by the Messenger of Court.  In addition the residue dump is to be returned to the complainant.”

After the sentence was pronounced the applicant appealed to this Court against both the conviction and sentence.  The appeal is filed under Case No. HCHCR 5178/25.  That appeal is yet to be determined.  The applicant then approached the Magistrates Court for suspension of the sentence pending determination of the appeal which was refused.  The execution of the sentence is now imminent notwithstanding the noting of the appeal, hence the approach by the applicant seeking that the execution be stayed pending determination of the appeal.

In opposing the application the second respondent raised five objections in limine.  The first respondent associated itself with and adopted the said objections.  These will be dealt with first as determination thereon informs whether or not the merits of the application will be considered.  It is necessary to consider the question of urgency first.

Urgency

With respect to urgency, the respondents submitted that the matter is not urgent because the need to act arose on 17 September 2025 when the Magistrates Court dismissed the applicant’s application seeking suspension of the sentence.  It is common cause that the instant application was filed on 15 October 2025.  The feared execution is due to take place on 30 October 2025.  I do not accept that the period of less than one month deprived the matter of its urgency when regard is had to the fact that the applicant approached this court more than two weeks before the execution which is sought to be stayed is due to take place.    Even if the applicant had filed an ordinary court application on 17 September 2025 or soon thereafter that application would not have been heard within the period concerned.  There can therefore be no argument that the applicant ought to have acted earlier than it did.  There is therefore no delay to explain.  This court has stated that the requirement to act expeditiously in seeking urgent relief does not mean that a litigant has to abandon everything in the world in order to litigate.  It simply means that the party should not wait for the arrival of the day of reckoning in order to act.  In this case the day of reckoning is the date on which the execution is scheduled to take place.  For these reasons the objection to the urgent hearing of the matter is dismissed.

Whether the interim relief is inconsistent with the final relief sought.

The second ground of objection is that the interim relief being sought is inconsistent with the terms of the final order sought.  The final relief sought is a declaration that the execution of the sentence of restitution was automatically suspended when the applicant filed its appeal under HCHCR 5178/25.  The interim relief is for the enforcement of the sentence to be stayed pending the return date.  Clearly, there is no inconsistency between the two. The interim relief seeks to stay the process on the basis that it should not be proceeded with because it was automatically suspended by operation of law.  Whether or not that is correct is for the court on the return date to deal with.  It is clear that what is being sought to be stopped at this stage is the fact of the imminent enforcement of the sentence pending determination on whether or not the execution of the sentence was automatically suspended by the noting of the appeal.  The alleged inconsistency does not therefore exist, hence the objection is dismissed.

Whether the relief sought on the return date is contrary to the law

The respondents’ contention is that the relief sought on the return date is contrary to the provisions of s 372 (3) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07].  This is a matter for determination on the return date.  If it is determined at this stage then the matter would effectively have been disposed of in respect of the final order sought.  The considerations for the application at this stage are different from the considerations relevant to the merits on the return date.  In the premises, the objection must fail for want of merit.

Whether the relief sought is the same as that in the appeal and if so, whether it is incompetent

The respondents’ contention is that the relief that is being sought in casu is incompetent because it is the same as the relief that is being sought in the appeal.  The final relief sought shows that the relief that is being sought is anchored on the pending appeal in HCHCR5178/25.  That is an appeal against the conviction and sentence.  Both the interim relief and the final order sought are not similar to the relief that is being sought in the appeal.  For that reason, the objection is not sustainable and must fail.

Whether the matter is res judicata and/or whether issue estoppel arises

The respondents’ submission is that the dismissal of the application for suspension of the sentence before the Magistrate renders the instant matter res judicata, alternatively, that issue estoppel arises.  The cause of action before the Court a quo was different from the cause of action in casu.  Before the Magistrates Court the relief that was being sought was one that is available in criminal procedure, that is, the suspension of the sentence.  The relief that is being sought in the present case is civil in nature.  This is because the enforcement of the order having been ordered to be done by the third respondent is now in essence enforcement using the civil procedures.  An order of the kind in issue would require to be registered so that it becomes civil in its effect.  The Messenger of Court does not enforce criminal orders unless such orders have become civil orders through the process stipulated by the law.  The citation of the second respondent and his participation in the proceedings tells that all the parties were clear that they were no longer dealing with a criminal matter. The requirements for stay of execution of an order of a civil nature are different from those that apply to an application for suspension of a sentence passed pursuant to criminal proceedings. For these reasons neither res judicata nor issue estoppel arises, hence the objection is dismissed.

The merits

What is being sought, as noted earlier on, is stay of execution on the basis that an appeal has been filed that challenges the vary conviction and sentence which birthed the execution that is about to take place.  All counsels who debated the matter made submissions premised upon the mistaken view that stay of execution is an ordinary interdict and must satisfy the requirements of an interdict.  That is not entirely correct.  While the stay of execution has the effect of an interdict, it is in a class of its own and the principles that apply where stay of the execution is being sought are settled in this jurisdiction.  These were articulated in the case of Mupini v Makoni 1993 (1) ZLR 80(S) at 83B-D where GUBBAY CJ said:

“Execution is a process of the court, and the court has an inherent power to control its own process and procedures, subject to such rules as are in force.  In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands (emphasis added).  The onus rests on a party seeking a stay to satisfy the court that special circumstances exist. . . . Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.”

In the present case the court must of necessity consider the position of the applicant if the judgment is carried into execution and he ultimately succeeds in having the conviction quashed and the sentence set aside vis-à-vis the position of the respondents if the appeal fails.  This is the inquiry which enables the court to assess if real and substantial justice demands the grant of the stay.  The order involves attachment of property to satisfy the amount of US$875 667.67 in circumstances where there is no form of security de restituendo that is given.  If the appeal succeeds when property of that value has already been attached and sold the reality is that the property will not be recovered if it has been sold to third parties.  There is also the additional portion of the order directing the return of “residue dump”, by which is probably meant a dump containing gold ore.  This is movable property whose ownership is by presumption of law proved by mere possession thereof.  This means that once it has been collected the second respondent can dispose of it.  If the ore is disposed of it there is no chance of it being returned to the applicant especially if it has been sold to third parties and/or has been processed to extract the mineral from the dump.  On the other hand, if the appeal against conviction and sentence ultimately fails the respondents can still proceed to enforce the order.  From the foregoing, real and substantial justice clearly dictates that the enforcement of the order be suspended until the appeal has been finalised.  Not only would restoration of the status quo be difficult if the execution is allowed to proceed, but it will in all probabilities be impossible.

In all the circumstances of this case, this is an appropriate case for the court to exercise its discretion by stopping the third respondent from enforcing the order.

In the result, IT IS ORDERED THAT the provisional order be and is granted in the following terms:

TERMS OF FINAL ORDER SOUGHT:

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The interim relief be and is hereby confirmed.

It is declared that the execution of a sentence and order of restitution made by the Mutoko Magistrates Court in CRB No. MTK R 79/25 was suspended automatically by the noting of the appeal by the applicant under Case No. HCHCR5178/25.

Each party shall bear its own costs.

INTERIM RELIEF GRANTED

Pending determination of this matter on the return date, the applicant is granted the following relief: -

The execution and enforcement of the sentence of the Mutoko Magistrates Court (per Gatsi C.M.) in CRB No. MTK R 79/25 on 8 September 2025 be and is hereby stayed.

SERVICE OF THE PROVISIONAL ORDER

The applicant’s legal practitioners be and are hereby granted leave to serve copies of this provisional order on all the respondents or their legal practitioners.

ZHOU J:………………………………………………………..

Rusinahama-Rabvukwa Attorneys, applicant’s legal practitioners

National Prosecuting Authority, first respondent’s legal practitioners

Gama & Partners, second respondent’s legal practitioners