GRAPHITE PETROLEUM (PRIVATE) LIMITED

versus

BLESSING MUTSENGI

and

LAIZA DOBI

and

THE SHERIFF FOR ZIMBABWE

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE; 12 and 17 March 2026

Opposed Application

R. Mutero, for the applicant

S. Kuchena, for 1^st and 2^nd respondents

MAMBARA J:

Introduction

[1] This is an opposed application for a stay of execution. The applicant seeks an order suspending execution of a default judgment that compels it to transfer immovable property to the 1st and 2nd respondents, pending the final determination of rescission-related proceedings that are said to place the basis for execution in dispute.

[2] The order sought to be stayed is, in substance, one directing transfer of a property described as Stand Number 3473 Warbury Road, Malbereign, Harare, measuring 1238 square metres, into the names of the 1st and 2nd respondents within a stipulated period; failing compliance, the Sheriff is authorized to sign transfer documents; and costs were awarded on a punitive scale.

[3] The applicant’s case is that, after the default judgment, it pursued rescission-related remedies which, though met with procedural difficulties and adverse interlocutory outcomes, remain alive in a pending matter. It apprehends that if transfer is perfected now, the dispute will be rendered practically academic and restitution will become difficult.

[4] The applicant further avers that in late January 2026 it became aware of renewed steps toward transfer, including pursuit of a rates clearance certificate from the City of Harare, and that it acted promptly thereafter to preserve the status quo.

[5] The respondents oppose the stay. They raise objections that the draft relief is incompetent or defective, that the applicant comes with “dirty hands” due to non-compliance with past costs orders, and that the applicant should be compelled to furnish security for costs.

[6] The issues for determination are:

(a) whether the points in limine are dispositive; and

(b) whether, on the merits, the applicant has shown grounds for this court to exercise its discretion to stay execution.

The law governing stay of execution

[7] The starting point in this jurisdiction is settled. Execution is a process of the court; the court retains an inherent power to regulate its own process and may suspend execution where real and substantial justice so requires. The discretion is wide but must be exercised judicially. The general rule remains that a successful litigant is entitled to the fruits of judgment, and the party seeking a stay bears the onus of showing special circumstances.

[8] Importantly, “special circumstances” are more readily found where the judgment concerns ejectment or transfer of property, because carrying the judgment into operation may render restitution of the original position difficult. This proposition has repeatedly been applied in Zimbabwean stay jurisprudence.

[9] A stay sought pending rescission (or pending proceedings which may revive or enable rescission) is not granted for the asking. The court must be satisfied that the pending challenge is bona fide and that execution carries a genuine risk of producing an injustice that cannot adequately be cured later. In evaluating whether real and substantial justice demands intervention, the court may have regard to factors typically encountered in interim protective relief, while keeping in view that the enquiry remains one of averting injustice rather than determining the main dispute.

[10] Comparative authority is consistent. Under South African Uniform Rule 45A, the court may suspend execution, but will not do so for speculative reasons: a sound factual and legal basis must be shown, and a stay is particularly apposite where the underlying causa is the subject of an ongoing dispute between the parties. Likewise, Commonwealth authority recognizes that the court should, where justice requires, ensure that a challenge is not rendered nugatory by premat