Zimpapers Logo

Godknows Hofisi

According to various sources a stay of execution or “cesset execution”, is a court order to temporarily suspend the execution of a court judgment or order.

Execution itself is the imposition or bringing into effect, the operation or consequences of a court judgment or order. A stay of execution can be granted by operation of the law, for example, where a judgment or order of a lower court has been appealed against in a superior court such as the High Court or Supreme Court. It may be granted by an order of a court on application by a litigant.

Stay of execution against a default judgment

A default judgment is granted where a party to legal proceedings is in default of court processes or proceedings such as failure to file court papers like opposing papers, or where a party fails to attend court without justifiable reason or cause.

Where a stay of execution against a default judgment there are usually three related court cases:

The application for stay of execution itself,

Application for rescission of a default judgment, and

The main matter such as a claim for a debt.

Requirements for an application for stay of execution against a default judgment

Some of the requirements are that:

There should be a pending court case for rescission of a default judgment.

Real and substantial justice demands the granting of an order of stay.

Balance of convenience favours the applicant

Availability of any other remedy.

There are prospects of success by the applicant in the application for rescission of judgment, which includes the absence of wilful default.

Real and substantial justice

In the case of Norman Sambaza versus Damascus Tazvitya Mabeka, case reference HC 6228/23, HH554-23 (‘Sambaza v Mabeka”) the High Court held that the court may set aside or suspend a writ of execution where real and substantial justice so demands.

In the case of Tendai Mashamhanda v Bariadie Investments (Private) Limited and Sheriff of the High Court, case reference SC680/23, Judgment Number SC17/24, the Supreme Court stated that the requirements for a stay, as set out in Cohen v Cohen, are that for the court to grant a stay of execution, it must be satisfied that an injustice would result if the stay was not granted.

In other words, it would mean justice would turn on its head if justice was not granted.

Balance of convenience

The court will determine who between the applicant and the respondent is favoured by the balance of convenience. In other words, the court will weigh the convenience and inconveniences to the parties of granting or not granting the order.

Availability of other remedies

Applicants are required to show that there is no other remedy except the remedy for a stay of execution.

Prospects of success in the application for rescission of judgment

An application for a stay of execution also needs to prove to the court that the applicant has good prospects of success in the application for rescission pending before the court. In other words, an applicant ought to establish good and sufficient cause for the granting of a rescission of judgment.

In the Sambaza v Mabeza case (supra or as cited above) the three factors looked at were explained as follows:

Reasonableness of the explanation for the default. In my own words, this should show the absence of wilful default of legal processes such as court appearance.

The bona fides (genuineness) of the application for rescission.

The bona fides of the defence on the merits of the main matter (for example summons matter for an amount owed) which carries prospects of success.

In the case of Dr Walter Mangezi v Dr Tonderai Irvine Kasu, case reference HCH 7978/24, judgment number HH 132-24, the factors were explained.

A reasonable explanation was held to refer to a logical and justifiable account for failing to do that which a party was required to do.

It is an explanation that aligns with common sense and rationality. This should show that there was no wilful default by the applicant. Citing the case of Zimbabwe Banking Corporation v Masendeke, the court held that wilful default occurs when a party with full knowledge of service or set down of the matter and the risks upon default, freely takes a decision to refrain from proceedings.

The bona fides of the application to rescind judgment refers to the genuineness or good faith behind the request to reverse a default judgment. This tests the absence of mala fide such delaying tactics. Some applicants who are facing execution may mount several roadblocks to attachment, removal and sale in execution of their assets by judgment creditors.

The bona fides of the defence on the merits of the main case for which default judgment was granted ought to be proved to show that both the application for stay of execution and rescission are not without merit.

Put differently, as regards the main case, the applicant ought to prove that if the default judgment is rescinded and the matter goes to trial or is heard on the merits, the applicants has prospects of success.

Conclusion

An application for a stay of execution is a commonly used legal remedy to stall the execution of a court judgment or order. It is usually used together with or built around another pending court case.

This simplified article is for general information purposes only and does not constitute the writer’s professional advice.

Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He was recently appointed to sit on the Council of Estate Administrators in Zimbabwe. He writes in his personal capacity. He can be contacted on +263 772 246 900 or [email protected] or [email protected]. Visit www//:hofisilaw.com for more articles.