Peter Magaracha a.k.a. Peter Godfres Magaracha v Lobengula Secondary School Development Association and The Additional Sheriff, Bulawayo

### Preamble
1
HB 117/19
HC 2877/17
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PETER MAGARACHA a.k.a. PETER GODFRES MAGARACHA

Versus

LOBENGULA SECONDARY SCHOOL

DEVELOPMENT ASSOCIATION

AND

THE ADDITIONAL SHERIFF, BULAWAYO NO

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 26 FEBRUARY & 18 JULY 2019

Opposed Application

S. Chamunorwa for the applicant

C. Dube-Banda for the 1st respondent

MABHIKWA J:	This matter came initially as a chamber application for an order “postponing or suspending a sale in execution in terms of Order 40 Rule 348A of the High Court Rules 1971.  The execution debtor (applicant) sought the following relief:

“It is hereby ordered that:

The sale in execution of the applicant’s dwelling being stand 2298 Bulawayo North of Bulawayo Township Lands situate in the District of Bulawayo also known as stand number 73 Baden Powell Road North End, Bulawayo be suspended on condition that:-

(a)	the applicant delivers to the first respondent, a bus being a Toyota Coaster registration number AAZ 8989, immediately upon this order being granted and further pays US$1 500,00 in costs by 30 November 2017.

Alternatively, the applicant shall pay US$7 000,00 on or before 30 November 2017 to the first respondent and thereafter pay off the balance by monthly instalments of US$500,00.

Alternatively, the applicant shall pay US$7 000,00 on or before 30 November 2017 and thereafter sell an immovable property situate in Gokwe Town known as house number 792 Nyaradzo Township, Gokwe and use the proceeds thereof to pay off the judgment debt.”

The brief history of the matter, which makes some sad reading is as follows:

The 1st respondent, being a school development association, entered into an agreement with applicant and applicant’s company, City Industrial (Pvt) Ltd t/a Peter’s Car Sales, in terms of which applicant and his company undertook to procure and deliver a 28 seater Toyota Coaster minibus for US$26 000,00.

The agreement was entered into on 22 January 2014.  On 27 January 2014, 1st respondent made a part payment for the purchase of the said 28 seater bus in the sum of US$15 000,00 by way of bank transfer from its Barclays Bank Zimbabwe (Pvt) into Peter’s Car Sales BancABC account number 10846525502013.

On the 17th and the 19th of May 2014 respectively, further transfers were made into the same banks to the values of US$5 000,00 and US$4 000,00.  In fact on 24th June 2014, a further transfer of US$2 000,00 was effected, to make the total of US$26 000,00 purchase price as agreed.

The total US$26 000,00 paid as shown above had been contributed in full by parents of the students enrolled at Lobengula High School.

It was a term of the agreement that upon payment of the initial deposit, the applicant and his company would make available the bus within thirty (30) to 45 days, meaning at most, forty-five (45) days from the 27th January 2014.

On 21 August 2014 applicant signed an affidavit undertaking to personally deliver the bus or refund the purchase price by 20 September 2014.  He did not deliver the bus, neither did he refund the money.

On 23 September 2014, applicant signed yet another affidavit, promising to deliver the same bus by 25 October 2014.  Again he did not deliver the bus, neither did he refund the money.

Obviously feeling that their patience had been tested to the brim, the school development association (1st respondent), issued summons against City Industrial (Pvt) Ltd t/a Peter Car Sales for the delivery of a Toyota Coaster 28 seater mini-bus or refund the US$26 000,00 plus 5% interest  per annum and costs on an attorney and client scale.

On 25 April 2017, the parties signed a Deed of Settlement when it was agreed that applicant and his company were to deliver a 28 seater Toyota Coaster mini-bus to the school in “good and satisfactory” condition within three (3) months from the signing of the Deed of Settlement.  It was further agreed that upon failure by the applicant and his company to deliver the bus, they would become jointly and severally liable to pay the sum of US$26 000,00 together with costs of suit in the sum of US$1 500,00.

The said deed of settlement signed by the parties on 25 April 2017 in fact led to an order by consent by my brother MAKONESE J on the same date, 25 April 2017.

Again there was no compliance with the Deed of Settlement and court order.

On 1 September 2017, 1st respondent caused a writ to be issued against the applicant and his company for the recovery of US$26 000,00 together with interest at 5% per annum plus costs of suit in the sum of US$1 500,00 as agreed, leading to the attachment of movable property by 2nd respondent at applicant’s company on 22 September 2017.  However, before the property was removed on the due date (27 September 2017) it was released after being claimed by 3rd parties.

After the release of the said movable property, applicant still did not bother to settle the debt and in fact capitulated until the attachment of the movable property in issue on 20 October 2017.

On 31 October 2017, applicant’s legal practitioners filed the present application and immediately served it on the respondents.  It was no doubt vigorously opposed by the 1st respondent.  Although the application does not state exactly in terms of what part of Rule 348A it is made, the impression one gets from the applicant’s papers is that it is presumably made in terms of Order 40 Rule 348A (5a) as read with  subrule (5e) of the High Court Rules 1971.

Rule 348A (5a) as follows:

“without derogation from sub-rules (3) to (5) where the dwelling that has been attached is occupied by the execution debtor or members of his family, the execution debtor may, within ten (10) days after the service upon him of the notice in terms of rule 347, make a chamber application in accordance with sub rule 5(b) for the postponement or suspension of –

the sale of the dwelling concerned, or

the eviction of its occupants.

Sub-rule (5e) provides thus;

“If the hearing of an application in terms of sub-rule (5a) the judge is satisfied-

that the dwelling concerned is occupied by the execution debtor or his family and is likely that he or they will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and

that –

the execution debtor has made a reasonable offer to settle the judgment debt, or

the occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or

there is some other good ground for postponing or suspending the sale of the dwelling concerned or the eviction of its occupants as the case may be;

the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of its occupants, subject to such terms and conditions as he may specify.”

It appears to me that applicants have been content with regugitate what sub-rule (5a) and 5e) state, with no attempt to allege, let alone show good and sufficient reasons as to exactly what “great hardships” would be suffered by the said family.  I certainly do not believe that the legislative means that the mere mention of the terms “great hardships” would suffice in such an application, neither did it intend to mean that as long as a dwelling is occupied by a fairly, then it should not be sold in execution if the execution debtor and or that family allege that they would suffer “great hardship” if the property is sold, neither did it intend to mean that only those with alternative accommodation would have their dwelling houses sold in execution.

Surely, in the majority of cases, the sale of a dwelling house in execution of a debt is accompanied by some form of hardship or another, including “great hardships.  The rules obviously could not go to precisely list and state exactly what “great hardships” are.  That is for the court to determine on the facts and circumstances of each particular case.  Suffice to say that no execution debtor or family has ever marveled on the sale of their dwelling house.  It is in fact a risk that one takes as soon as he assumes indebtedness.

The hardships, in my view must be of good and sufficient magnitude as would move a court to postpone or suspend the sale in execution, reasons that would in my view amount to the equivalent of “special circumstances” or “special reasons” in criminal cases.

It is not enough for the applicant to argue in his heads that his claim that he and his family will suffer great hardships, has not been disputed and then urge the court to grant him the relief sought.  In the first place, it is applicant who should first prove great hardship and as already stated above, he failed in that regard.  Secondly, it is not correct in my view that that claim was not disputed.  In paragraph 17 (iii) of Charles Ndlovu’s opposing affidavit, 1st respondent refers to the allegation of “great hardships”.  1st respondent also responds to that allegation under a full heading from page 3 paragraph 3 of its heads of argument up to the top of page 5 and went on to quote CHINHENGO J (as he then was) in Thadeous Jeremiah Masendeke vs Central Africa Building Society and the Sheriff of Zimbabwe HH-7-03 that;

“It is not enough that the execution debtor or his family will suffer hardship if the dwelling is sold.  The judge must be satisfied that the hardship is great.  In my view, the hardship must be more than the ordinary hardships which persons deprived of their place of residence ordinarily suffer. Such as the attendant inconveniences in finding and paying for alternative accommodation or the need to relocate to another residential place such as a rural home or a rented accommodation.  The hardship must be great in that it results in the execution creditor being rendered homeless or destitute.”

In addition, counsel for the 1st respondent further disputed the claims in oral submissions on the date of hearing.  Counsel for the applicant argues that 1st respondent’s statement that, “applicant has deliberately brought upon himself “great hardship” means that 1st respondent accepts that applicant and his family will suffer “great hardship” and therefore the relief sought must be granted.  The court’s finding and interpretation of that statement in its simple grammatical meaning is that the questionable “great hardships” that applicant complains of are in fact self-created and he cannot seek to benefit from such self-created hardship.

As shown at the beginning of this judgment the history of this case particularly the applicant’s failed undertakings and promises, make sad reading, yet applicant now continues to try and hoodwink this court, by seemingly plausible terms of payment and payment plans instead of simply paying.  The immovable property that he claims he owns and lists so beautifully, should have long been used to pay the debt.

To support his payment proposal, which to me in any case would not only be questionable but also undesirable and unfair to the judgment creditor considering the now five (5) years history of failed promises, applicant now claim that his mother in Gokwe is willing to assist him in clearing the debt.  He even filed a supporting affidavit from the said mother confirming her willingness to assist by offering to sell her house number 792 Nyaradzo Township, Gokwe.  She claimed in the affidavit that the house is in excess of US$27 000,00.  That affidavit was sworn to on 26 October 2017.

Instead of the applicant and his mother simply selling the house and paying the school, they again capitulated and the court can only conclude that there was no genuineness in that offer.  I say so because almost two (2) years later in February 2019 when the matter was eventually argued, applicant was no longer using his mother’s affidavit and assurance, but her purported will in a yet to be registered deceased estate.  The court in these circumstances highlighted to counsel for the applicant that it would be incompetent and wrongly exercising its discretion for a court to make an order based on the produced Last Will and Testament of the late Emily Magaracha, although counsel insisted and implored the court to accede to the request.

The court rejects such a proposal for the following simple reasons among others.

As already stated, the estate late Emily Magaracha has not even been registered.

In the said Will, she bequeathed various properties to 4 children and 4 grandchildren making a total of 8 beneficiaries who therefore have a direct interest in the estate.

The said number 792 Nyaadzo Township which applicant offers to be sold instead of his attached property, is not even bequeathed to him in terms of the mother’s Will but to his sister Chipo Magaracha, yet applicant has offered and used it in his draft order.

The mere fact of a person has written a Will is not proof of the testator’s ownership of the property listed in the Will.  People have been known, either deliberately or due to lack of knowledge of land laws, to bequeath to others, properties that later turn out not to belong to them.  For instance, the immovable property bequeathed in the will to the applicant, and described as –

“Farm No. 12 Central Estate Mvuma,” may well turn out to be a plot under the Government’s Land Resettlement Programme and such land is not subject to such bequeaths and moreso, sale in execution of a debt.  In fact the many immovable properties described simply as “stand” in the Will may turn out to be state owned land or simply “stands” for which she had no title deeds.   In short, there are potential challenges to the Will.

The correct position can only be known after the registration, administration and execution of the Will, and surely all tat inconvenience has nothing to do with Lobengula Primary School Development Association.

With the foregoing, this court may perhaps pardon Mr C. Dube for being emotional at one stage in his submissions.  He was right that applicant wants this court, on flimsy reasons, to get concerned about purported hardships to his 3 children should the house be sold, yet he and his company have caused hardships to a whole school of children, whose parents forked out their hard earned money to buy a bus for the benefit of those children.  It is now five (5) years and some of the children, quite many of them, have gone on to complete school and or transfer without even seeing the bus that their parents paid for.

It has been said that rule 348A of the High Court Rules 1971 is an often abused rule and this is one classic example of such abuse.  Surely the law is clear that the said rule 348A should be viewed to as an exception rather than the norm.  It should only be resorted to in exceptional and deserving cases.  See Media v Homelink (Pvt) Ltd 2011 (2) ZLR 576 (H).  Also Shilling M. Sibanda vs Tambudzai Hldgs (Pvt) Ltd & The Sheriff of Zimbabwe HH-84-17.

Perhaps, just as the famous saying by one learned judge that the applicant (judgment debtor) has had his merry go round.  The time has come to tell him that the music has stopped playing and it is time to pay the piper.  It is time that applicant owns up.

In its opposing affidavit, 1st respondent had prayed for ordinary costs.  During the hearing and in argument, counsel strongly sought an order for cost on an attorney and client scale and explained why.  I am persuaded that indeed this case justifies such an order.

Accordingly, I will dismiss the application for the postponement or suspension of sale in execution with costs on an attorney and client scale.

Calderwood Bryce Hendrie & Partners applicant’s legal practitioners

Dube-Banda, Nzarayapenga, 1st respondent’s legal practitioners