Mandlenkosi Dlodlo v Charles Takavengwa and Registrar of Deeds, N.O.

### Preamble
1
HB 121/25
HCBC 980/24
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MANDLENKOSI DLODLO

Versus

CHARLES TAKAVENGWA

AND

REGISTRAR OF DEEDS, N.O

HIGH COURT OF ZIMBABWE

M DUBE J

BULAWAYO 13 JUNE 2025 AND 18 JULY 2025

Opposed Application- Revival of judgment

T Masiye Moyo, for the applicant

T.E Gumbo for the 1st respondent

DUBE J: 	The applicant approached this Court seeking an order for the revival of an order granted in favour of the applicant under HC 2566/12. The application was opposed by the 1st respondent.

Factual Background

The genesis of this dispute lies in an agreement of sale concluded sometime in 2012, whereby the applicant purchased Stand 1970 Nketa Township of Lot 400A Umganin, Bulawayo, including all improvements, from the 1st respondent. The agreed purchase price was US$15,000.00, which the applicant duly paid in full in January 2012. Following this payment, the 1st respondent granted the applicant vacant and undisturbed possession of the property, where the applicant and his family have resided ever since.

A critical issue arose in the same year, 2012, when the applicant attempted to have the property transferred into his name. It was then discovered that the property was encumbered by a mortgage bond to a bank for sums that, with interest, exceeded the purchase price. This material fact had not been disclosed by the 1st respondent at the time of entering into the agreement of sale. Consequently, servicing or clearing this mortgage bond would have effectively doubled, if not more, the original purchase price for the applicant.

In response to this predicament, the applicant instituted legal proceedings under HC1496/12, seeking an order for the transfer of the property into his name after the 1st respondent cleared the mortgage bond. In the alternative, the applicant sought a refund of the purchase price. On 26 September 2013, this Honourable Court per Makonese J granted a summary judgment in favour of the applicant under HC2566/12. The order directed the 1st respondent to clear the encumbrances and sign transfer papers within 10 days, failing which he was to pay US$15,000.00 plus interest.

Following the court order in HC2566/12, the applicant's legal practitioners issued a writ of execution. This was pursued after an order was obtained under HC1714/13, which declared Stand 2810 Famona, Bulawayo, a property in which the 1st respondent had an interest, specially executable.

However, the attachment of Stand 2810 Famona was not brought to finalisation. Certain individuals, acting through Movite Properties (Pvt) Ltd, challenged the execution, asserting that they had purchased all shares in Movite Properties (Pvt) Ltd from the 1st respondent and his wife. Their contention was that the 1st respondent's interest in the property, previously held through shares, had ceased to exist. This challenge was finalised around 2016, resulting in Stand 2810 Famona being removed from judicial execution.

Further attempts by the applicant's erstwhile legal practitioners to attach the 1st respondent's motor vehicle, a Mercedes-Benz registration number AAC6124, were also frustrated. The 1st respondent initiated interpleader proceedings and other applications, which ultimately frustrated the judicial execution process for that vehicle as well. Despite these efforts, the judgment remained unfulfilled. It is against this backdrop that the applicant filed the present case for the revival of that judgment.

PROCEEDINGS BEFORE THIS COURT

At the hearing, I invited the parties to address me on the preliminary points raised in their heads of arguments.

I would like to deal with the point in limine raised by Mr Masiye Moyo on the 1st respondent’s legal practitioner deposing to the opposing affidavit. Counsel submitted that there was no valid opposition before the court as Mr Gumbo deposed to facts that were not within his personal knowledge. He submitted, therefore, that the matter be treated as unopposed. In response, Mr Gumbo submitted that there are various pronouncements by this Court accepting the propriety of such affidavits in purely procedural matters. He stated that, as the present application was purely procedural, he was better placed to deal with the legal issues as the 1st respondent had no knowledge of superannuation and revival of judgments, there being no disputes at all on the material facts surrounding the substantive issues.

The attack on Mr Gumbo’s opposing affidavit must therefore be assessed against the provisions of r 58 subrule 4(a) of the High Court Rules, 2021, which provides as follows;

“An affidavit filed with a written application—

shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out in therein; and”— (underlining for own emphasis)

Mr Gumbo in his opposing affidavit states as follows;

I, TAKUNDA EMMANUEL GUMBO, do hereby make oath and state that the facts deposed to herein are within my knowledge and do believe the same to be true and correct. I am the 1st respondent’s attending legal practitioner and, on account of the fact that this application raises purely legal issues on the question of the propriety of the current application, with no material disputes on the facts, in that capacity have been duly authorised to depose to this affidavit.

From the reading of this paragraph, I deduced that the 1st respondent relied on two sources of knowledge, which he believes entitle him to depose to the affidavit, his legal training and personal knowledge. Generally, I agree with counsel for the applicant that it is undesirable for a legal practitioner to depose to an affidavit on behalf of a client. This court has previously stated why it is undesirable for legal practitioners to do so.  In exceptional circumstances, however, a legal practitioner may properly depose to an affidavit if: The facts are within their personal knowledge, such as procedural history or correspondence they handled and if the affidavit relates to procedural matters, for example, explaining delays in an application for rescission of default judgment. This was affirmed in the case of Mandaza v Mzilikazi Investments (Pvt) Ltd HB 23-07, where the court held that a legal practitioner may depose to an affidavit if the facts are within their knowledge and the matter is procedural in nature.  Even in such circumstances, the courts have highlighted that the route should be taken sparingly. The facts of this present application are not within the personal knowledge of the 1st respondent’s legal practitioner, as he was not the legal practitioner who was handling the matter before. He might have gotten some knowledge from perusing the record and even interviewing his client; however, this cannot be classified as ‘personal knowledge’ which can entitle him to depose to an affidavit on behalf of a client. In addition, counsel does not indicate the source of his information. He also does not say that it is the 1st respondent who provided him with such information. For example, in paragraph 4.2, counsel talks about the attachment and sale in execution of the 1st respondent’s Mercedes-Benz. This, in my view, only amounts to hearsay evidence as the 1st respondent’s counsel was not the counsel who was representing the 1st respondent at that time. As a general rule and subject to section 27 of the Civil Evidence Act [Chapter 8:10], hearsay evidence is inadmissible in affidavits.

I agree with Mr Gumbo when he makes the point that, procedurally, he was in a better position to highlight the 1st respondent’s case as the application is about procedural matters. However, the facts which led to the rise of the application are not within counsel’s knowledge. In the circumstances, I am of the view that the legal practitioner was not justified in deposing to the affidavit. I accordingly uphold the preliminary point, and coming to the finding that there is no valid notice of opposition before the court. The matter therefore proceeds as unopposed.

I will therefore move on to the merits of the application to ascertain if the applicant has made a good case for the relief sought. The applicant seeks an order for the revival of a judgment that was granted under case number HC 2566/12. It is trite law that a judgment becomes superannuated and loses its executability after three (3) years if no steps have been taken to enforce it. The original judgment in this case was granted on 26 September 2013, and the current application for revival was filed on 26 July 2024, which is well beyond the three-year period. This position was confirmed in the case of  Nzara and Others v Kashumba N.O & Others HH 151-16 that the common law position on the superannuation of judgments in Zimbabwe is that a judgment superannuates after three (3) years.

In the case of Independent Petroleum Group Limited v Chaparrel Trading (Pvt) Ltd & Anor HH 67-23, the requirements for the revival of a superannuated judgment were listed as follows:

The judgment debt must remain outstanding;

The judgment to be revived must specify the amount;

There must be reasonable explanation for the delay in enforcing the judgment; and

The order must be of some benefit to the applicant

I am convinced that the applicant managed to satisfy the above requirements. The applicant in his founding affidavit has provided a detailed and plausible explanation for the significant delay in seeking the revival of the judgment. Firstly, his relocation to South Africa presented practical challenges in monitoring the case and engaging with legal processes in Zimbabwe. Crucially, the delay was not solely attributable to the applicant's circumstances, as he had actively tried to execute to no avail. The 1st respondent actively resisted and frustrated previous execution attempts. This included successful challenges to the attachment of Stand 2810 Famona (on the basis that his interest in the property had ceased) and the interpleader proceedings concerning the motor vehicle, which ultimately stalled judicial execution.

The 1st respondent had raised a defence that the present application was unnecessary as the judgment had not superannuated. Counsel’s argument was that since there was already a writ that had been issued, the judgment had not superannuated, all the applicant had to do was enforce the order/judgment.

He relied on rule 69(3) of the High Court Rules, 2021 which states as follows:

“No writ of execution shall be issued after the judgment has become superannuated, unless the said judgment has first been revived, but a writ of execution once issued shall remain in force until such time as the judgment has been satisfied.”

His argument is that the writ of execution was issued before the judgment superannuated, and therefore, it remains extant until the judgment debt has been discharged. I entirely agree with counsel’s interpretation of the statute; however, I understood Mr Masiye Moyo’s argument to mean that since the order under HC 2566/12 offered alternative remedies: specific performance (transfer of the property) or a monetary refund of US$15,000.00. The applicant's current preference for specific performance stemmed from the fact that he had attempted and had failed to execute the alternative remedy for the refund of the purchase price. He therefore sought to enforce the main part of the order, which required the 1st respondent to transfer the rights, title and interests in the property to him. The doctrine of superannuation does not mean that the debt is extinguished or prescribed; in simple terms, it means that the judgment is too old to use but can be brought back to life through a formal application for revival. This application is a continuation of the original proceedings, allowing the court to make the judgment executable again. I am inclined to grant the application as the applicant has made a good case for the result. I find no reason to make a special order for costs.

Resultantly, the order is granted as prayed for with costs on an ordinary scale.

Masiye Moyo and associates, applicant’s legal practitioners

Chinawa Law Chambers, 1st respondent’s legal practitioners