Big Diagnostics (Private) Limited v Medical Investments Limited and Lechade Investments (Private) Limited

### Preamble
1
HH 587-25
HCH 4222/25
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BIG DIAGNOSTICS (PRIVATE) LIMITED

versus

MEDICAL INVESTMENTS LIMITED

and

LECHLADE INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MANYANGADZE J

HARARE, 8 & 24 September 2025

Urgent chamber application

G.R.J.Sithole, with E. Chatambudza and R.Moss, for the applicant

D. Tavavar, with G.Ndlovu, for the 1st respondent

T.W. Nyamakura, for the 2nd respondent

MANYANGADZE J:

INTRODUCTION

This is an urgent chamber application for leave to execute pending appeal. The application stems from an order issued by this court, per maxwell J, in HCH 4060/25, in which the applicant was granted spoliatory relief against the first respondent. The order, issued on 20 August, 2025, is in the following terms:

“The application for a spoliation order succeeds.

The first Respondent and all other persons acting through them or on their instructions, be and are hereby ordered to restore to the applicant the undisturbed and peaceful possession of the business premises and operations of the second Respondent situate wherever within the Avenues Clinic at Corner Mazowe Street and Baines Avenue, including, the leased premises being the portion(s) of the hospital known as 'The Diagnostic Imaging Department, CT Scan Suite and 3TMRI Suite.

The first Respondent be and is hereby ordered to pay costs on an ordinary  scale.”

FACTUAL BACKGROUND

The application is set against the background of what appears to be an acrimonious shareholders dispute between the applicant and the first respondent. The wrangle emanates from their shareholders agreement over the second respondent.  The applicant and the first respondent hold 55% and 45% shares, respectively, in the second respondent. The second respondent operates a radiology business on premises it leases from the first respondent. The first respondent owns Avenues Clinic, one of the largest private hospitals in the country. The radiology business is within the Avenues Clinic premises.

The first respondent terminated its shareholders agreement with the applicant. There is no need to delve into the complexities of the shareholders agreement and its disputed termination. Suffice it to state that the dispute was referred to arbitration, and an arbitral award was issued in favour of the first respondent. The applicant is impugning the arbitral award, and has since filed an application for review, wherein it seeks an order to set it aside.

Meanwhile, the first respondent moved in to enforce the arbitral award on its own. In somewhat dramatic scenes not characteristic of a hospital environment, the locks to the radiology centre, being the second respondent’s business premises, were changed. Bouncers were immediately deployed. All this was in a bid to deny the applicant, the losing party in the arbitration process, access to the premises from which the second respondent operates. The applicant asserts that it is the one that has been running the second respondent’s radiology operations for years and is a well known brand in the market.

The first respondent noted an appeal against maxwell J’s order. The appeal is pending under Case No. SC 657/25. The noting of the appeal has the effect of suspending the operation of the High Court order. This in turn means the applicant is denied access to the premises in question, contrary to the spoliation order. It is this state of affairs the applicant seeks to reverse, through the instant application.

It was brought to the attention of the court that whilst the instant application was pending, the second respondent also noted an appeal against maxwell J’s judgment, under Case No. HCH 4368/25. The noting of the appeal has the same effect as that of the appeal noted by the first respondent i.e. suspending the operation of maxwel J’s judgment. Again, the applicant filed an urgent chamber application for leave to execute pending appeal. The parties agreed the two applications be consolidated, that is, Cases No. HCH 4222/25 and HCH  4368/25. The cases are principally dealing with the same cause.  The only difference is that the applicant in HCH 4368/25 is the second respondent in HCH 4222/25, and the applicant in HCH 4222/25 is the first respondent in HCH 4368/25. It is a reversal of roles in the same cause of action. This just goes to reflect the uncompromisingly combative stance the parties have taken against each other.

This development has necessitated an amendment to the draft order, which now reads as follows:

“1. The instant applications for leave to execute pending appeal under reference case  numbers HCH4222/25 and HCH4368/25 are hereby granted.

2. The Applicant is hereby granted leave to execute the order of this Honourable Court under reference case number HCH 4060/25 as granted on 20th of August 2025 by Maxwell J, pending the appeals under reference case numbers SC 657/2025 and SC 676/2025.

3. The Applicant, with the assistance of the Zimbabwe Republic Police and/or the Sheriff of the High Court of Zimbabwe be and is hereby granted leave to execute the judgment of this court per Maxwell J under HCH 4060/25.

4. The Respondents shall pay the applicant's costs of suit on a legal practitioner and client scale.”

APPLICANT’S ARGUMENT

The applicant avers that denial of leave to execute will cause it serious financial and commercial viability as a business entity. It further contends that patients’ welfare has already been compromised as contingency measures have had to be taken by diverting patients to other stakeholders. The applicant points out that it has long experience and expertise in the operation of the radiology machinery which constitutes the core business of the second respondent. It (applicant) has been running this business for years. Added to this is the reputational damage inflicted by all these disturbances.

FIRST RESPONDENT’S ARGUMENT

In countering the applicant’s averments, the first respondent asserts, in the main, that it never has been in possession of the premises in contention. It is the second respondent who has been in possession thereof.  Put differently, there really is no spoliatory action to talk about on the part of the first respondent.

On the alleged commercial or financial viability, the first respondent avers that the applicant has not substantiated its allegations. No evidence has been placed before the court, such as financial statements or records, to prove the harm complained of. The first respondent further contends that in any case, harm of a financial nature can always be remedied through a claim for damages.

SECOND RESPONDENT’S ARGUMENT

The gist of the second respondent’s contention is that it is not affected by maxwell J’s judgment. No order was issued against it.

Mr Nyamakura, on behalf of the second respondent, pointed out that the dispute is between the shareholders i.e. the applicant and the second respondent. He argued that it seems the applicant is confusing restoration of management function and spoliatory relief. The former cannot be restored by means of the latter. Mr Nyamakura expressed this point in the following terms during oral submissions:

“Denial of management function is not the subject of spoliatory relief. The court could not restore operations by way of a possessory interdict. No positive order was sought against it (second respondent). The application should be dismissed against second respondent. The dispute is between the shareholders.”

THE LAW

The granting of an application for leave to execute is largely a matter within the court’s discretion. It is an equitable remedy where the court carefully weighs all the pertinent factors. Each case therefore turns on its own peculiarities. In exercising its discretion, the court considers the potentiality of prejudice to the applicant if the relief is denied. It also balances this against the potentiality of prejudice to the respondent if the relief is granted.

Very often, the court is called upon to do a fine balancing act between competing rights that are equally protected by the law. On the one hand, the party armed with an order in its favour is entitled to enforce that order. Execution is the next logical step to take after obtaining a court order. It is not a trophy won merely for display and admiration.

On the other hand, the party against whom the order operates, if aggrieved, has the right to appeal. If they exercise that right and note an appeal, such appeal may be rendered academic if execution is carried out and results in irreversible consequences. Thus, prospects of the appeal succeeding become a significant factor, together with the other factors, when considering whether or not execution should go ahead. In the case of Industrial Development Authority v Reggie Francis Saruchera, HH 129/06, BHUNU J (as he then was), stated, at p 4-5:

“It is trite that the noting of an appeal automatically suspends the decision appealed against.  This is however a rule of practice rather than a rule of law such that the court has discretion as to whether or not to grant leave to execute pending appeal.  It is an equitable remedy where the court is constrained to weigh the balance of convenience.  The parameters for consideration were laid down by BLACKIE J in Tranos Toziva v Rodney HC B 116-89 as including:

“1.	The potentiality of irreparable harm or prejudice sustained by the appellant on appeal (The respondent in the application) if leave to execute were to be granted.

2.The potentiality of irreparable harm or prejudice being sustained by the respondent (applicant in the application) if leave to execute were to be refused.

3.The prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but with some indirect purpose to gain time or to harass the other party.

4.Where there is the potentiality of irreparable harm or prejudice to both the appellant and the respondent, the balance of hardship or convenience as the case may be.”

The applicant bears the onus of establishing that the court should exercise its discretion in its favour.”

In CMED (Pvt) Ltd v First Oil Company (Pvt) Ltd, musithu J was seized with the same issue. I fully associate myself with the remarks made by the learned judge, at p7:

“The legal principles that are considered in applications of this nature have been traversed in numerous decisions of the superior courts. In Trustco Mobile (Pty) Ltd & Ano v Econt Wireless (Pvt) Ltd & Ano, Mavangira J (as she then was) set them out as follows:

“In Whata v Whata 1994 (2) ZLR 277 (S) at 281 B-C Gubbay CJ stated:

‘The principle to be applied by the court considering the grant of an application for leave to execute on a judgment under appeal is what is just and equitable in all circumstances. The enquiry normally involves assessing such factors as: the potentiality of irreparable harm or prejudice being sustained by either the successful or the losing party, and, if by both, the balance of hardship or convenience; and the prospects of success on appeal, including whether the appeal is frivolous or vexations or has been noted for some indirect purpose, such as to gain time or harass the other party. See the South Cape Corporation case supra at 545 E-G.’ (South Cape Corporation (Pty) Ltd Eng Mgmt Svcs (Pty) Ltd 1997 (3) SA 534 (A)’.”

The court further stated as follows:

“In Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H) Smith J articulated the same principle at 154F-9 as follows:

“In determining an application for leave to execute pending an appeal, the court must have regard to the “preponderance of equities”, the prospects of success on the part of the appellant and whether the appeal has been noted without “the bona fide intention of seeking to reverse the judgment but for some indirect purpose e.g. to gain time or to harass the other party”: see Fox and Carney (Pvt) Ltd v Carthew-Gabriel (2) 1997 (4) SA 970 (R) and ZDECO (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (H).”

In determining an application of this nature, the court must consider the entirety of the circumstances of this matter. That includes the potentiality of irreparable harm or prejudice to either the applicant or the respondent in the event that leave to execute is denied or granted. In the event that there is a likelihood of prejudice to both parties, then the court must consider whether the balance of convenience favours the granting of the relief or its denial. In so doing, the court must also relate to the prospects of success of the appeal. There is no point in denying execution pending appeal where the appeal is clearly devoid of merit, and it has simply been filed in order to delay the day of reckoning.”

APPLICATION OF THE LAW

Applying the law to the facts of the instant matter does not seem to me an onerous task. I say so in light of the nature of the relief granted by maxwell J, and the effect of its execution. The learned judge granted a mandament van spolie, whose terms are clear from the order cited. As such, it deals with the question of possession or occupation of the premises in question. This entails provision of radiology services to patients in very often critical need of such services, which is the core business of the applicant.

The applicant was disabled from carrying out this core business when the locks to the premises were changed and bouncers deployed to prevent access thereto. I did not hear the first respondent denying taking these extreme measures. The explanation was that this was targeted at certain managerial staff of the applicant. How this staff, being senior personnel of the applicant through whom it operates its business, can be separated from the applicant is something the first respondent could not explain. It is my considered view that the effect of the spoliation was the cessation of the applicant’s business operations.

The first respondent argued that the applicant ought to have tendered evidence of the financial harm it avers would be brought about by the spoliation. I do not think, for purposes of the interim measure being sought, the court should be burdened by poring through financial records of the applicant. This is not a liquidation inquiry. The court weighs the potentiality of harm likely to result from cessation of business operations. This is much the same way it considers the argument often advanced, in mining disputes where interim relief is sought, that there is potentiality of harm resulting from the depletion of gold or other minerals as a finite resource. The court rarely calls upon the party advancing such argument to produce daily, monthly or yearly records of the gold ore mined or likely to be mined, what quantities of gold are likely to be extracted from the ore, and the value thereof. It would be an excruciating and cumbersome process for the purpose of interim relief sought on an urgent basis.

The other argument the first respondent makes is that the applicant can always recover whatever financial loss it suffers through a suit for damages. This argument is very often made with scant regard to the possibility of costly and protracted litigation. This does not effectively counteract the potentiality of irreparable prejudice occurring if interim relief is denied.

In casu, the effect of the relief desired is to restore the status quo ante the spoliation, until the parities’ substantive rights are determined.

In my view, both the first and the second respondents have not satisfactorily demonstrated what prejudice they will suffer if the relief of leave to execute is granted. This relief simply means the applicant implements, in the interim, the spoliatory relief granted by an order of this court. As for the parties’ substantive rights in the shareholders’ dispute, these will be dealt with in the pending application for a review of the arbitral award. As already indicated, the first respondent endeavoured to enforce the rights determined in this award through self-help, which took the crude form of changing locks and deploying bouncers. Thus, a granting of leave to execute would, essentially, be a reversal of the self-help.

DISPOSITION

It is my considered view, in the circumstances, that the probabilities or equities of this matter lie in favour of granting the relief sought by the applicant, with costs on the ordinary scale.

In the result, it is ordered that:

“1. The instant applications for leave to execute pending appeal under reference case  numbers HCH4222/25 and HCH4368/25 be and are hereby granted.

2. The Applicant is hereby granted leave to execute the order of this Honourable Court under reference case number HCH 4060/25 as granted on 20th of August 2025 by maxwell J, pending the appeals under reference case numbers SC 657/2025 and SC 676/2025.

3. The Applicant, with the assistance of the Zimbabwe Republic Police and/or the Sheriff of the High Court of Zimbabwe be and is hereby granted leave to execute the judgment of this court per maxwell J under HCH 4060/25.

4. The Respondents shall pay the applicant’s costs, jointly and severally, the one paying the other to be absolved.”

Manyangadze J:………………………………….

Scanlen & Holderness, applicant’s legal practitioners

Gill, Godlonton & Gerrans, first respondent’s legal practitioners

Muza Attorneys, second respondent’s legal practitioners