W & E Silks (Private) Limited v Fynatex Distributors (Private) Limited (292 of 2023) [2023] ZWHHC 230 (15 May 2023)

W & E Silks (Private) Limited v Fynatex Distributors (Private) Limited (292 of 2023) [2023] ZWHHC 230 (15 May 2023)

Leave to execute judgment pending appeal is granted because the respondent failed to comply with statutory tenancy requirements by paying rent late, had no reasonable prospects of success on appeal, and the appeal was not bona fide but intended to delay execution. The doctrine of substantial compliance does not...

Source-derived case information.

Citation
[2023] ZWHHC 230
Parties
Applicant: W & E Silks (Private) Limited; Respondent: Fynatex Distributors (Private) Limited
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
15 May 2023 15 May 2023 14 February 2023
Case Number
292 of 2023
Procedural Posture
Opposed Chamber Application for Leave to Execute Pending Appeal / Ruling on Application for Leave to Execute Judgment Pending Appeal
Outcome
Application for leave to execute judgment pending appeal granted
Legal Topics
Statutory Tenancy, Eviction, Leave to Execute Pending Appeal, Novation, Substantial Compliance
Source Language
english
Landlord and Tenant Law Civil Procedure Statutory Tenancy Eviction Leave to Execute Pending Appeal Novation Substantial Compliance

Source-derived case record

Summary, issues, holding and outcome

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Parties

W & E Silks (Private) Limited

Applicant

Fynatex Distributors (Private) Limited

Respondent

Procedural Posture

Opposed Chamber Application for Leave to Execute Pending Appeal / Ruling on Application for Leave to Execute Judgment Pending Appeal

Legal Issues

  1. 1 Whether leave to execute judgment pending appeal should be granted
  2. 2 Whether the respondent was a statutory tenant under s 22(2) of the Commercial Premises (Rent) Regulations, 1983
  3. 3 Whether late payment of rent constituted substantial compliance with statutory tenancy requirements

Ratio Decidendi

Leave to execute judgment pending appeal is granted because the respondent failed to comply with statutory tenancy requirements by paying rent late, had no reasonable prospects of success on appeal, and the appeal was not bona fide but intended to delay execution. The doctrine of substantial compliance does not apply to the peremptory requirement of timely rent payment under s 22(2) of the Commercial Premises (Rent) Regulations, 1983.

Court Disposition

Application for leave to execute judgment pending appeal granted

Orders

  • Leave to execute judgment HH 527/21 dated 29 September 2021 in respect of case No. MC 4305/19 pending determination of Supreme Court Appeal SC 377/21 is granted.
  • Costs of the application shall follow the outcome of case No. SC 377/21.