Shabati and Another v Sivan and 3 Others (95 of 2023) [2023] ZWHHC 145 (9 February 2023)

Shabati and Another v Sivan and 3 Others (95 of 2023) [2023] ZWHHC 145 (9 February 2023)

The applicants were not properly barred and the default judgment was obtained in error without proper service or determination of the extant special plea and exception. Both parties failed to follow proper procedure regarding irregular steps, but the balance of convenience and the need to preserve the subject matter pending rescission justify granting a stay of execution.

Citation
[2023] ZWHHC 145
Parties
Applicant: Gilad Shabtai; Applicant: Munyaradzi Gonyora; Respondent: Ofer Sivan; Respondent: Adlecraft Investments (Pvt) Ltd; Respondent: Registrar of Companies; Respondent: Sheriff of the High Court, Zimbabwe
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
9 February 2023 23 February 2023 9 February 2023
Case Number
95 of 2023
Procedural Posture
Application for Stay of Execution / Ruling on Application for Stay Pending Rescission
Outcome
Application for stay of execution granted
Legal Topics
Stay of Execution, Default Judgment, Rescission of Judgment, Directors' Removal, Irregular Proceedings
Source Language
English
Civil Procedure Company Law Stay of Execution Default Judgment Rescission of Judgment Directors' Removal Irregular Proceedings

Case Brief

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Parties

Gilad Shabtai

Applicant

Munyaradzi Gonyora

Applicant

Ofer Sivan

Respondent

Adlecraft Investments (Pvt) Ltd

Respondent

Registrar of Companies

Respondent

Sheriff of the High Court, Zimbabwe

Respondent

Procedural Posture

Application for Stay of Execution / Ruling on Application for Stay Pending Rescission

Legal Issues

  1. 1 Whether the applicants are entitled to a stay of execution of a default judgment pending determination of an application for rescission
  2. 2 Whether the default judgment was irregularly obtained in the face of extant special plea and exception
  3. 3 Whether the process of barring and notice to plead was properly effected

Ratio Decidendi

The applicants were not properly barred and the default judgment was obtained in error without proper service or determination of the extant special plea and exception. Both parties failed to follow proper procedure regarding irregular steps, but the balance of convenience and the need to preserve the subject matter pending rescission justify granting a stay of execution.

Court Disposition

Application for stay of execution granted

Orders

  • Stay of execution of the default judgment granted pending determination of the rescission application
  • Each party to bear its own costs