Abigail Makono (Nee Billie) v Charles Nyengera Makono and The Registrar of the High Court of Zimbabwe and The Sheriff for Zimbabwe

### Preamble
1
HH 638-25
HCH 2271/25
---------


ABIGAIL MAKONO (NEE BILLIE)

versus

CHARLES NYENGERA MAKONO

and

THE REGISTRAR OF THE HIGH COURT OF ZIMBABWE

and

THE SHERIFF FOR ZIMBABWE

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE; 13 &16 October 2025

Opposed Application

P E Chivhenge, for the applicant

G Madzoka, for the 1st respondent

No appearances for the 2nd & 3rd respondents

DEMBURE J:

1.	On 13 October 2025, the court dismissed the application with costs on a legal practitioner and client scale. What follows herein are the full written reasons thereof.

This is a court application for setting aside a writ of execution. The impugned writ of execution was issued by the Registrar on 8 May 2025. The said writ, sued out by the first respondent in Form No. 33, was for the execution against the applicant’s movable and immovable property to recover the judgment debt in the sum of US$600,000.00. The said judgment debt was due and payable to the first respondent in terms of the judgment by consent granted by this court on 3 April 2025 in Case No. HCH 2634/21. The applicant sought an order as follows:

“1. 	The Application be and is hereby granted.

2. 	The Writ of Execution issued by the 2nd Respondent at the instance of the 1st Respondent on the 8th day of May 2025, under Case No. HCH2634/21, be and is hereby set aside.

3. 	The 3rd Respondent be and is hereby ordered not to execute the writ of execution that was issued on the 8th of May 2025, under Case No. HCH 2634/21.

4. 	The 1st Respondent be and is hereby ordered to pay the costs of this application.”

2.	The application was opposed.

FACTUAL BACKGROUND

3.	The applicant and the first respondent got married on 6 August 2011 in terms of the Marriage Act [Chapter 5:11], now the Marriages Act [Chapter 11:17]. Sometime in 2021, the first respondent, who is the applicant’s former husband (as the plaintiff), instituted proceedings for divorce and other ancillary relief in Case No. HCH 2634/21. When the matter was set down for trial before PHILLIPS J, the parties concluded a Deed of Settlement (“DOS”) in terms of which they agreed that their divorce be granted in accordance with the terms of the settlement contained therein. The said DOS was signed by the applicant as the last signatory on 28 February 2025 and filed with the court on 6 March 2025.

4.	On 3 April 2025, the court, per Phillips J, issued a consent order incorporating the terms of the DOS as follows:

“1. 	A decree of divorce be and is hereby granted.

2. 	Plaintiff is awarded 18848 Robert Mugabe Way Harare plus US$600, 000.00 (Six Hundred Thousand United States Dollars) which Defendant must pay to the Plaintiff within a period of four (4) months reckoned from the 1st of January 2025.

3.	This sum of US$600,000.00 shall be paid by the Defendant to the Plaintiff exclusively in the United States of America Dollars either in cash to Hatinahama and Associates or into a Nostro Account nominated by the Plaintiff or its Legal Practitioners for the purpose.

4. 	Defendant is awarded 1297 Gletwin Suburb Harare and Lot 7A Salisbury township otherwise known as 78 Kaguvi Street, Harare.

5. 	Should defendant fail to make the payment referred to in paragraph 2 of this order within a period of four (4) months reckoned from 1 January 2025, the Plaintiff shall have the right to execute against the properties awarded to the Defendant.

6. 	The Defendant shall sign all such documents as may be necessary to effect full transfer of Number 18848 Robert Mugabe Road, Harare to the Plaintiff and hand over the documents to Hatinahama and Associates together with the Deeds of Title in respect of Number 18848 Robert Mugabe Road, Harare.

7. 	If the Defendant fails to sign the documents referred to in paragraph 6 of this order within (7) seven days from the date of receipt from the Plaintiff of a written demand for such documents, the Sheriff of the High Court is hereby authorised to sign all such documents.

8. 	The Plaintiff shall sign all documents as maybe necessary to effect full transfer in the property and handover the documents to Rubaya and Chatambudza Legal Practitioners together with the Deed of Title in respect of 1297 Gletwin Suburb, Harare and such documents pertaining Lot 7A Salisbury Township known as 78 Kaguvi Street Harare which documents shall be held in escrow until Plaintiff receive a sum of USD 600 000.00 (Six Hundred Thousand United States Dollars) exclusively in the United States of America Dollars either in cash to Hatinahama and Associates or into a Nostro Account set out in clause 2 above.

9. 	If the Plaintiff fails to sign the documents referred to in paragraph 8, of this order within (7) seven days from the date of receipt from the Defendant of a written demand for such documents, the Sheriff of the High Court is hereby authorized to sign all such documents.

10. 	Should circumstances arise which in the joint view of the parties require the extension of any timelines set out in this order or any relaxation or modification of its terms, the parties shall be obliged to grant each other any such requisite extension or relaxation or modification in writing without necessarily resorting to the Court for the variation of this Court Order.

11. 	The parties record that this order is final and that no claim can be made by relating to any other assets mentioned parties’ pleadings that are not incorporated in this order.

12. 	That the Parties’ movable property be shared in terms of the schedule signed by the parties on the 26th day of March 2025 attached to this order.

13. 	Each party shall pay its own costs.”

5.	In terms of para 2 of the consent order, the applicant, as the defendant in the matrimonial matter in Case No. HCH 2634/21 was ordered to pay the first respondent the sum of US$600,000.00 within four (4) months, reckoned from 1 January 2025. It is common cause that she did not pay the said sum as ordered, and as at the date of the hearing, the amount was yet to be settled. On account of this default, the first respondent sued out a writ of execution against movable and immovable property of the applicant in Form No. 33. The immovable property which the first respondent seeks to execute against is a certain piece of land situate in the District of Salisbury called Lot 7A Salisbury Township measuring 637 square metres, also known as 78 Kaguvi Street, Harare registered under a Deed of Transfer No. 346/2014 (“the property”) in the names of both the applicant and the first respondent.

6.	On 15 May 2025, the applicant lodged this application to have the writ of execution set aside. She averred that the writ was irregular and fatally defective and, therefore, ought to be set aside on mainly three (3) grounds, namely that:

6.1.	Firstly, there was improper mixing of movable and immovable property in the same writ of execution. She contended that combining execution against movable and immovable property within a single writ was procedurally flawed and irregular. It was further pleaded that the process of executing against movable property is distinct from that of immovable property. In terms of r 69(5) of the High Court Rules, 2021, the Sheriff should not be required to proceed directly to attach in execution immovable property of the judgment debtor unless and until the sheriff has by due inquiry and diligent search satisfied himself that there is no movable property or there is insufficient movable property belonging to the judgment debtor to satisfy the amount sought to be recovered. She also averred that the first respondent should not have sought to directly attach the immovable property in the absence of a court order declaring the property specially executable.

6.2.	Secondly, there was an attempt to attach property registered in the plaintiff’s (first respondent’s) name. She contended that the writ seeks to attach the immovable property, which is registered in both their names. The first respondent is a co-owner of the said property. In other words, she argued that he first respondent seeks to execute against a property in which he holds an undivided share and is a co-registered owner. It was further stated that it is legally untenable and impermissible for the first respondent, as the judgment creditor, to attach and sell in execution a property in which he is a co-owner. That renders the writ fatally defective. He should have waited for the property to be transferred into her name before seeking to attach and sell the property in question.

6.3.	Thirdly, the first respondent breached the court order and cannot seek to enforce the same order. She contended that the first respondent had failed to honour his reciprocal obligations in terms of the DOS and the consent order and, therefore, had dirty hands. She averred that in terms of para (8) of the consent order, the first respondent had the obligation to sign all documents for the transfer of the property awarded to her, and despite demand, he had failed, neglected and/or refused to provide the said documents to enable transfer to be effected in her own name. It was argued that the first respondent breached the consent order, which he seeks to execute against her through the writ of execution. A party that has failed to fulfil its own obligations in terms of the consent order, which embodies a reciprocal agreement, cannot seek to enforce the obligations of the other party. She further averred that she stands to suffer irreparable harm. That her movable property may be unlawfully attached, as well as there being an unlawful attachment and sale of the property under untenable circumstances.

7.	In his opposing affidavit, the first respondent raised a point in limine that the applicant had approached the court with dirty hands and must not be heard until she purges her contempt. On the merits, he contended that the application lacked merit and must be dismissed with costs on a legal practitioner and client scale. It was further averred that the DOS and the consent order are binding on the applicant. The said documents provided the consequences of the applicant’s failure to pay the sum of US$600,000.00 on or before 1 May 2025. It was also stated that the applicant had breached the court order by failing to pay the said sum within four (4) months from 1 January 2025.

8.	The first respondent further averred that he had signed all the transfer documents and transmitted them to the applicant’s legal practitioners on 4 June 2025. He said he signed those documents despite that the applicant had not made any written demand for him to sign them. He challenged the applicant to provide the proof of the alleged diligent follow-ups or any written demand thereof served upon him. The first respondent further averred that the court order entitled him to execute against the property awarded to the applicant. He denied that the writ was irregular or defective as alleged. It was also argued that r 69(5) permits the issuing of a writ for both movable and immovable property. He further averred that the court sanctioned the attachment of the applicant’s property upon her default in paying the sum due: in effect, the properties awarded to the applicant were specially executable.

9.	The first respondent further averred that the registration of the property in his name with that of the applicant did not impede execution. This is because these properties were awarded to the applicant and the court authorised their attachment in terms of the consent order. He contended that he did not breach the court order or fail to perform his obligations thereof. He reiterated that the applicant did not make any written demand for the documents, and he never refused or failed to furnish them. He also stated that there was no proof of such a written demand ever made attached to the founding affidavit. He, therefore, denied being in contempt of court but contended that it was the applicant who breached the order by failing to pay him US$600,000.00 in terms of the judgment by consent. To that extent, he was entitled to have the applicant’s property attached and sold in execution.

10.	It was common cause that the first respondent went on to sign the transfer documents in respect of the two properties awarded to the applicant and delivered the documents thereof to the applicant’s legal practitioners on 4 June 2025. The first respondent admitted that the court order imposed obligations on both parties and spelt out the remedies in the event of non-compliance by either party.

11.	In the answering affidavit, the applicant denied that she had approached the court with dirty hands. She asserted that her obligation to pay US$600,000.00 to the first respondent was inextricably linked to the first respondent’s obligation to sign and provide the transfer documents for the two properties into her name. She maintained that the first respondent had failed, refused and/or neglected to do so despite her diligent follow-ups. The first respondent only delivered the documents on 4 June 2025 after the issuance of the writ of execution and upon the filing of the present application. She further averred that the signing and delivery of the transfer documents was an admission that when the writ was issued, the first respondent had not complied with his obligations. She maintained that her liability to pay the first respondent was contingent upon the first respondent’s reciprocal performance. She insisted that the writ was defective and ought to be set aside, with the first respondent bearing the costs on a legal practitioner and client scale.

12.	At the hearing, Mr Madzoka abandoned the point in limine relating to the dirty hands doctrine. It was accordingly no longer an issue for determination. The parties’ legal practitioners proceeded to address the court on the merits.

SUBMISSIONS MADE BY THE PARTIES

APPLICANT’S SUBMISSIONS

13.	Mr Chivhenge submitted that the application is for the setting aside of the writ of execution against both movable and immovable property. He further submitted that the writ is premised on the consent order. Read together the DOS and the order imposed reciprocal obligations on the applicant and the first respondent. The first being that the applicant must effect payment of US$600,000.00 to the first respondent within a period of four (4) months. There is a reciprocal obligation created for the first respondent that is contemporaneous with the payment; the first respondent was to sign all the necessary documents for the transfer with respect to the two properties. Before the signing of the transfer documents, the first respondent cannot clamour for and obtain a writ against the applicant.

14.	Counsel further argued that, subsequent to the filing of this application on 3 June 2025, the first respondent furnished the applicant with the said transfer documents. He argued that at the time the writ was issued, the first respondent had not complied with the order by consent. The order by consent had its context, which is the DOS. See clauses 2.2 and 5 thereof. The signing of the transfer documents was an acquiescence to the default. It does not cure the default. He referred the court to the cases of Mativenga v Sithole & Anor HH 281/24 and ABSA Bank Ltd v Rosenburg &Anor [2024] ZASCA 58 in the heads of argument as authorities that point out that where a party is in breach of a reciprocal obligation, he cannot purport to enforce the contract. The DOS was that contract. There had been no compliance by the first respondent. Prior to the issuance of the writ, the first respondent had not complied with the terms of the consent order.

15.	Mr Chivhenge further submitted that the applicant had sought to impugn the writ on the basis that it combined both movables and immovables, but he was no longer motivating the point. He, therefore, abandoned the first ground. Counsel submitted that the irregularity still being persisted with included that the writ is against the property jointly owned by the parties. In the circumstances, the first respondent is a judgment creditor and the property is his. He effectively wants execution against his property. The execution of the order as per the writ would result in an absurdity, as a right is only enforceable against the property of the judgment debtor. It was argued that the writ was invalid on the basis that it was against the property not owned by the applicant.

FIRST RESPONDENT’S SUBMISSIONS

16.	Mr Madzoka submitted that the record in the matter in Case No. HC 2634/21 shows that what was first concluded was the DOS. Counsel sought to explain why the effective date for the payment of US$600,000.00 by the applicant to the first respondent was 1 January 2025, despite the DOS being signed in February 2025. I must accept that, as rightly objected by Mr Chivhenge, Mr Madzoka, in his attempt to explain that background, was giving evidence from the bar. I could not, therefore, competently rely on that evidence.

17.	Counsel further submitted that the issue is whether the writ should be set aside. Initially, there were 3 grounds. The first had been abandoned. The grounds that remain are that:

17.1.	Firstly, the property belongs to the first respondent, and he is executing against his property. It was argued that the point was not raised out of sympathy for the first respondent. The point must be made that while the property remains registered in the name of the first respondent, the reality is that they are properties awarded to the applicant. He further submitted that while he accepted that registration creates a presumption of ownership, there are circumstances where the court can go beyond the registration of a title deed. Mr Madzoka referred the court to the case of Kawadza v Kawadza 2019 (1) ZLR 226 (S) at 234, where the court explains that there are circumstances where a title deed can be disregarded. We are dealing with property that has been awarded. It is a judgment in rem and not in personam. It defines one’s relationship with the property. On what constitutes a judgment in rem he cited the case of Registrar General v Chirwa 1993 (1) ZLR 291 (S).

17.1.1.	Mr Madzoka also submitted that the first ground had failed as the court had identified. An extant judgment in question had declared the property executable. The order has the force of law and must be accorded its authority. The argument that the first respondent wants to execute against his property cannot hold. This is a special order as it is an order by consent which has the force of a contract. What we have is that a party is trying to run away from the court order. The court must uphold contracts. The order is valid until set aside. As a matter of law, the court has no power to disregard an extant order. See Nyaguwa v Gwinyayi 1981 ZLR 25. The court is functus officio as far as whether or not the property is executable, and the court cannot revisit its position. When interpreting a judgment, one cannot imply what is not stated in the judgment. See South African Arms and Ammunition Dealers Association v Minister of Police 2021 (4) All SA 538 at 546A to 547F and Tshetlo v Tshetlo 2000 (4) All SA 375.

17.1.2.	In terms of the court order, the first respondent is entitled to payment of US$600,000.00. The applicant had not contested that position as long as the order remains. Paragraph (2) of the consent order confirms the entitlement to US$600,000.00 and mentions the period for payment to be made. Paragraph (5) says that if there is non-compliance, this is how the first respondent can access the remedy, and the remedy is to execute against both properties. He has the right to execute against the properties if the US$600,000.00 is not paid. In respect of the applicant, she too has her own rights and remedies. The obligation said to be reciprocal does not arise as firstly, because it is not stated, and secondly, the timelines are quite different. The first respondent is entitled to execute at the end of four months. The first respondent was given the right to approach the Sheriff. The obligations are not reciprocal or dependent on each other.

17.2.	Mr Madzoka further submitted that the second ground was that the first respondent had breached the order. It was argued that the breach of the order does not arise. In the answering affidavit, there is an admission by the applicant that the first respondent signed the transfer documents. See para 10.2 at p 47 of the record. The documents were signed and placed before the court. The applicant is not owed any obligation. She is moving from one technicality to another to avoid the order. The second ground is without merit. We are dealing with one who is in defiance of a court order. The ultimate test to set aside a writ is whether the writ conforms to the judgment upon which it was issued. The one in issue does.

17.2.1.	Counsel went on to argued that the period in para (9) of the order was open-ended. Once a written demand or notice is given and not complied with, then there will be non-compliance. The applicant did not demand that the first respondent sign the documents. She did not provide the proof of the so-called “diligent follow-ups”. At p 47, in para 10 of the answering affidavit, she did not deny this. There was no demand and none was placed before the court. The court order was very specific to state a written demand. See para (9) of the court order. He submitted that the application ought to be dismissed with costs on a legal practitioner and client scale.

APPLICANT’S REPLYING SUBMISSIONS

18.	Mr Chivhenge, in his reply, submitted that he would abide by the submissions filed of record and what he had said in court. He argued that the reciprocity he made reference to was by consequence. The orders speak to each other. Indeed, the transfer documents were signed, and this was after the filing of the present application. The payment of US$600,000.00 was supposed to have been made within 4 months from 1 January 2025, and per the provisions of para (8), the two were supposed to be contemporaneous. Counsel thus concluded that, notwithstanding the lack of evidence of a written demand, the conduct of signing the transfer documents confirmed that the first respondent had not complied with the court order before the writ was issued.

ISSUE FOR DETERMINATION

19.	The sole question for determination is whether the writ of execution is irregular and fatally defective.

THE LAW AND ANALYSIS

20.	The law is clear that a judgment sounding in money is enforceable through a writ of execution. Accordingly, court orders are divided into two categories, namely the orders for the payment of a certain sum of money, commonly called orders ad pecuniam solvendam (a judgment sound in money) and those orders to do or refrain from doing a particular act or to deliver a particular thing; commonly called orders ad factum praestandum. See Evans & Another v Surtee & Ors SC 4/12. It is not in dispute that the consent order in question, as far as it relates to the payment of US$600,000.00 to the first respondent, is in respect of that part ad pecuniam solvendum. Such a judgment is enforceable through a writ of execution issued in terms of r 69(1). Thus r 69(1) reads:

“The process for the execution of any judgment for the payment of money, for the delivery of money, for the delivery up of goods or premises, or for ejectment, shall be by writ of execution signed by the registrar and addressed to the sheriff, in accordance with one or other of Forms Nos. 32 to 39.” (my emphasis)

21.	Further, in terms of r 69(5), it is permissible for a judgement creditor to issue out a single writ of execution against both movable and immovable property in Form No. 33. This was also affirmed by the Supreme Court when it was interpreting the equivalent r 326 of the repealed rules now r 69(5) in Govere v Ordeco (Pvt) Ltd & Anor SC 25/14 where it was said:

“…, the plain meaning of this rule is that the judgment creditor has the option to sue out a separate writ of execution for the attachment of immovable property or a single writ for the attachment of both movable and immovable property. In either event, before proceeding to attach immovable property, the sheriff or his deputy is enjoined to satisfy himself that the judgment creditor does not own any or has insufficient movable property to satisfy the judgment debt.”

It is also the position of the law that a validly issued writ of execution remains in force until the judgment debt has been satisfied. See r 69(3).

22.	The writ of execution sued out by the first respondent was impugned by the applicant on the basis that it was irregular and fatally defective. The applicant had raised three grounds for that contention in the founding affidavit. However, as already alluded to above, Mr Chivhenge abandoned the first ground that there was improper mixing of movables and immovables in the same writ, allegedly in breach of r 69(5). Clearly, when one considers the provisions of r 69(5), further explained in Govere (supra), that argument was completely groundless. I commend Mr Chivhenge for realising that the argument was unsustainable. He rightly abandoned the ground, and nothing should, therefore, arise on the first ground.

23.	The only grounds remaining and motivated by Mr Chivhenge are that the writ is invalid because the first respondent sought to execute against a property he co-owns or his own property, and that the first respondent had breached the court order and could not seek to enforce the same judgment he had defied. I will, in turn, deal with these two grounds hereunder.

THE GROUND THAT THE WRIT IS INVALID FOR SEEKING TO EXECUTE AGAINST THE FIRST RESPONDENT’S OWN PROPERTY

24.	Mr Chivhenge argued that the first respondent cannot sue out a writ of execution against the property registered in his name jointly in undivided shares with the applicant. The argument was that it was his property, which he could not seek to execute against. It is common cause that the property known as number 78 Kaguvi Street, Harare, is registered in the names of both the first respondent and the applicant under a Deed of Transfer No. 346/2014. It is also not in dispute that the said property, together with the Gletwyn property, were awarded to the applicant in terms of the consent order granted on 3 April 2025 as her sole and exclusive property. Para (4) of the consent order is very clear that;

“The Defendant is awarded 1297 Gletwin Suburb Harare and Lot 7A Salisbury township otherwise known as 78 Kaguvi Street, Harare.”

25.	The court order is clearly dispositive or conclusive as to the right or title to the properties in question or their status to an extent that there can be no other averment other than what the court had by its judgment by consent declared or made it to be. The judgment in casu, as it defined the right or title to the property to the effect that the property is that of the applicant, can be classified as a judgment in rem as opposed to a judgment in personam, also commonly referred to as inter partes. Such a judgment is binding on the parties and even non-parties, and the applicant would be estopped from asserting that the property in question is that of the first respondent, by claiming that the registration of title is yet to be changed. What constitutes a judgment in rem was defined in Barlow v Regent Estates Co Ltd [1949] 2 All ER 118 (referred to by Hoffmann & Zeffert; The South African Law of Evidence, 4th ed, p 388) as:

“A judgment of a Court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing (as distinct from a particular interest in it of a party to litigation.)

A judgment in rem is a judgment which is conclusive as against all the world in whatever it settles as to the status of a person or property, or as to the right or title to the property and as to whatever disposition it makes of the property itself, or of the proceeds of its sale. All persons, regardless of whether or not they are parties to any legal proceedings, are bound by a judgment in rem and as such are estopped from averring that the status of persons or things, or the right or title to property is other than what the Court has by its judgment declared or made it to be.” (my emphasis)

26.	Further, in any case, it is trite that a title deed is not conclusive proof of ownership of an immovable property. In other words, it raises a presumption of ownership in favour of the holder of the title deed, but that can be rebutted depending on the existence of special circumstances which may establish the entitlement to the property by the unregistered rightful owner who may, therefore, be protected by the court. This position was aptly set out in CBZ Bank Ltd v Moyo & Ors SC17/18 at p 7 where the Supreme Court had this to say:

“I must state that a deed of transfer or registration of cession is not conclusive proof of ownership or the rights of a cessionary. See the cases of Young v Van Rensburg 1991 (2) ZLR 149 (S) at 156 D-G and Kassim v Kassim 1989 (3) ZLR 234 (H) at 237 B-D.  It simply raises a presumption in favour of the holder of the title deed or the rights of a cessionary until the claimant proves on a balance of probabilities that he innocently bought the property or cessionary rights from the owner of the property or cedent. See the case of Cunning v Cunning 1984 (4) SA 585 (T). In any event, the registration of transfer in the Deeds Registry or registration of cession at the offices of a local authority or Deeds Registry does not always reflect the true state of affairs. A title deed or registered cession is therefore prima facie proof of ownership or cessionary rights which can be successfully challenged. …

Once it is accepted that a title deed or registered cession is not conclusive proof of ownership or cessionary rights, it follows that the appellant merely has a prima facie right to execute against the attached property registered in the names of the judgment debtor, Nompiliso Maphosa, and her husband, Tarisai Matsveru. The prima facie right is open to rebuttal. This may therefore be a basis for setting aside the sale in execution if the first respondent proves the existence of special circumstances.

Special circumstances exist where a purchaser has failed to have the property registered in his name, when he and the seller have demonstrated a clear intention to effect transfer and when there was no legal impediment to such transfer or the impediment does not justify the refusal to grant protection to the purchaser.” (my emphasis)

27.	Given the judgment by consent which awarded the property to the applicant, it cannot be argued that the property still belongs to the first respondent despite that the title deeds are still registered in his name as the joint-owner. The true state of affairs is clear that, in terms of the court order, the property in question is now that of the applicant. It is trite that the court, in certain circumstances, may not strictly adhere to the registration to establish that one is the rightful owner of the property. The court may thus go beyond the mere fact that title deeds are registered in one’s name in the determination of who the true owner of the property is. This was affirmed by the Supreme Court in Kawadza (supra), where at p 234A-B it stated as follows:

“The appellant cannot, therefore, be allowed to rely on the fact that the property was registered in his name. Although it is true that registration of an immovable property raises a presumption of ownership, where a party proves that registration was done as an administrative necessity, like in this case, one cannot rely on registration to assert the right of ownership. The family entered into an agreement in terms of which the appellant, because of his ability to obtain a loan from CABS to help pay the balance, be registered as the owner. The property was registered in the appellant’s name to secure the loan. The respondents, together with their mother, Christine Kawadza, paid the monthly instalments… The court a quo correctly found that the rightful owner of the property was the late Christine Kawadza.” (my emphasis)

28.	I fully associate myself with the above remarks. They apply herein with equal force. This court had awarded the property to the applicant, and notwithstanding the fact of registration, she is clearly the rightful owner of the property. To that extent, it can be attached and sold in execution of the judgment as further directed in terms of para (5) of the same consent order. Given the order by consent, the applicant was now the rightful owner of the property. The argument, therefore, that the property cannot be attached as it is co-owned by the first respondent is accordingly without any merit.

29.	Additionally, it is trite that a court order has the force of law and remains binding on the parties unless reversed or set aside. This general principle was affirmed in Magauzi & Anor v Jekera SC 54/22, where the Supreme Court said:

“When a court grants an order, all subsequent acts affecting the dispute between the parties rely on the court’s order and not the reason or facts the court based its judgment on. Execution of judgment debts is based on court orders and not the reason for which the court order was granted. Therefore, a party or the parties cannot disregard a court order as they are bound by it. In the case of Chiwenga v Chiwenga SC 2/14, it was stated that: “The law is clear that an extant order of this Court must be obeyed or given effect to unless it has been varied or set aside by this Court and not even by consent can parties vary or depart therefrom. See also CFU v Mhuriro & Ors 2000 (2) ZLR 405 (S).”

The principle that extant court orders must be obeyed was further restated in Econet Wireless (Pvt) Ltd v Minister of the Public Service, Labour and Social Welfare & Ors SC 31/16 at p 6, where Bhunu JA stated:

“The doctrine of obedience of the law until its lawful invalidation was graphically put across by Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:

“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. If it were not so, and every litigant challenging the validity of any law was excused from obeying the law pending determination of its validity, there would be absolute chaos and confusion, rendering the application of the rule of law virtually impossible. This is because anyone could challenge the validity of any law just to throw spanners into the works to defeat or evade compliance with the law.”

30.	There are only three types of cases or exceptions where a court order is considered void ab initio and may accordingly be disregarded without the necessity of having it set aside. This common law position was recently affirmed by the Supreme Court in Aponte v Antolini Luigi & C.S.P.A & Ors SC 89/25 at p 11, where it was held that:

“In Todt v Ipser 1993 (3) SA 577(A) at 589C the court noted that:

“According to our common-law authorities, judgments are void in only three types of cases, where there has been no proper service, where there is no proper mandate or where the court lacks jurisdiction.”

31.	The court order in question, issued by consent, is binding on the parties, including the applicant. A consent order signifies a contract between the parties superadded with the command of the court. Thus, RAMLY J of the Malaysian Court of Appeal in the case of Mayhan Allied BHD v Kenneth Godfrey Gomez & Anor [2010] 9 CLJ 702 aptly stated;

“The Consent Order is founded on a contract or agreement between parties based on both parties' willingness to submit ... to certain terms. Once the Appellant and the Respondent took a matter beyond the contract and recorded a Consent Order then they must accept all the implications of a Judgement or Order.”

… Essentially, although a Consent Order arises out of an agreement and terms arrived at by the parties themselves, and may even evidence a contract with or without obligation, it is a Judgement or Order made by or in the name of the Court and has all the consequences of a Court Judgement or Order (See Order 42/ SA/ 4 RSC White Book 1999 Edition). The parties must therefore accept its implications.”  (my emphasis)

32.	There is no dispute that the consent order is still extant. It, therefore, has the force of law and must be given effect to. A court order must be interpreted so as to give effect to the court’s intention, and where its meaning is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, qualify, vary or supplement it. See the South African case of Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 AD at 304D-H where it was stated as follows:

“First, some general observations about the relevant rules of interpreting a court’s judgment or order. The basic principles applicable to construing documents apply to the construction of a court’s judgment or order. The court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules. see Garlick v Smart and Anor 1928 AD 82 at 87: West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 at p188. Thus in the case of a document the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify or supplement it. Indeed, it was common cause that in such a case not even the court that gave the judgment or order can be asked to state what its subjective intention was in giving it (cf Postmasburg Motors (Edms) Bpk v Peensen Andere 1970(2) SA 35(NC) at p39 F.H. Of course, different considerations apply when not the construction, but the correction of a judgment or order is sought by way of appeal against it or otherwise …”

33.	It is, therefore, clear at law that when interpreting an order of court, any meaning which undermines its purpose must be avoided. See South African Arms and Ammunition Dealers Association (supra) and Tshetlo (supra). The court, in my view, cannot read into an order what is inconsistent with the clear and unambiguous language used. The purpose of any interpretation of a court order is not to remake or vary the court order. Once issued, a court order is generally valid and must be enforced unless set aside or reversed, save in the three exceptions recognised in the Aponte case (supra), where an order is considered void ab initio and of no effect.

34.	In terms of para (2) of the consent order, clearly, the applicant was obliged to pay the first respondent the sum of US$600,000.00. The period within which she was obliged to comply with the payment obligation was within 4 months, reckoned from 1 January 2025. This is despite that the DOS and the consent order itself were issued after 1 January 2025. This shows that by 3 April 2025, when the judgment by consent was granted, the applicant had already assumed that obligation to settle the sum of US$600,000.00. There is no indication at all that the obligation was reciprocal or made dependent on that of the first respondent under para (8) of signing and delivering the transfer documents for the properties awarded to the applicant. I do not accept that the applicant had to wait for the first respondent to perform before she was required to perform her obligation to pay the said amount.

35.	In fact, in para (8), even where the first respondent had signed before the payment, the documents were required to be held in escrow by the applicant’s legal practitioners until the first respondent had received the payment. The overall clear purpose of the order was to ensure that the first respondent is compensated for the award of the two properties to the applicant, as he had been awarded only stand 18848 Robert Mugabe Way, Harare. To balance the equities, he had to be paid US$600,000.00 by the applicant in addition to the property he had received. Mr Chivhenge’s argument that the applicant’s obligation to pay was inextricably linked to the signing and delivery of transfer documents or was reciprocal to that of the defendant was untenable. The court order did not say that the applicant had to pay only upon performance by the first respondent of his obligation to sign the documents. There is no support for such kind of interpretation from the terms of the said order.

36.	In any case, para (5) of the consent order should settle the issue. It clearly states:

“5. 	Should defendant fail to make the payment referred to in paragraph 2 of this order within a period of four (4) months reckoned from 1 January 2025, the Plaintiff shall have the right to execute against the properties awarded to the Defendant.” (my emphasis)

The order in clear and unambiguous language, granted the first respondent the right to execute against the properties awarded to the applicant in the event she fails to pay the said sum of US$600,000.00 within the prescribed period. The order, in effect, made the two properties specially executable. The writ seeks to have one of the properties, No. 78 Kaguvi Street, Harare, attached and sold in execution. It is what the court ordered or directed in para (5) of its order. A consent order is not merely a contract between the parties but an agreement superadded with the command of the court. It is binding and remains enforceable unless set aside. See Magauzi (supra).

37.	There should be no debate at all, as the execution was sanctioned by the court as the remedy available to the first respondent should the applicant fail to pay the amount of US$600,000.00. This court made the decision that the property in question is executable notwithstanding the registration on the title deeds; it cannot allow the opening of any debate on the issue. The execution must be given effect to, as it is what the court sanctioned. The court, having fully and finally exercised its jurisdiction on the matter, became functus officio. The court can only reverse its orders in recognised exceptional cases upon an appropriate application. I reject attempts by the applicant to seek to challenge para (5) of the court order through the back door. In any case, the order is a product of her own free will. She freely and voluntarily signed the DOS, which consent to judgment, also constitutes a binding contract. The courts must also give effect to contracts freely and voluntarily entered into by the parties in accordance with the doctrines of freedom of contract and sanctity of contracts. See Book v Davidson 1988 (1) ZLR 368 (S).

38.	There is no doubt that the applicant, in terms of para (2) of the court order, was obliged to pay the sum of US$600,000.00 by 1 May 2025. It is not in dispute that she did not pay. At the time of the hearing, Mr Chivhenge admitted that she had not yet discharged that obligation in terms of the court order. Since the sum is due and payable, the first respondent, the judgment creditor, was legally entitled to sue out a writ of execution to recover the said sum. The right is further buttressed by the provisions of para (5) of the court order, which entitles him to execute against the applicant’s two properties, including No. 78 Kaguvi Street, identified in the writ. The writ was issued in terms of the judgment by consent which it seeks to enforce. There is accordingly nothing irregular about the writ. It was issued in accordance with the law. The ground that the writ was invalid for being issued against the property in question, which the applicant wrongly alleged was owned by the first respondent, must fail.

THE GROUND THAT THE FIRST RESPONDENT COULD NOT VALIDLY SUE OUT FOR A WRIT ON ACCOUNT OF BREACH OF THE COURT ORDER

39.	It was also the applicant’s argument that the writ was invalid on the ground that the first respondent was in breach of the court order and could not enforce the same. The obligation alleged to have been disobeyed is one to sign and deliver transfer documents in respect of the properties awarded to the applicant in terms of para (8) of the court order. The said para (8) must be read together with para (9). It is clear that para (8) did not stipulate the time within which the first respondent had to sign the documents. Resort should be made to para (9). That paragraph provides the remedy available to the applicant in the event of default by the first respondent authorising the Sheriff to step in and sign the documents if the first respondent fails to do so. However, what is clear from the same provision is that the default would only be there if the first respondent fails to sign the documents within seven (7) days from the date of receipt from the applicant of a written demand for such documents.

40.	The question that arises would be whether there was such written demand for the first respondent to be taken to have breached his obligation to sign the documents in terms of the court order. In casu, the applicant made a bald averment in the founding affidavit that there were diligent follow-ups with the first respondent to sign, and he refused or failed to do so. No evidence that a written demand as required by para (9) of the court order was ever served upon the first respondent was attached to the founding affidavit. It is trite that an application stands or falls on its founding affidavit: Ahmed v Docking Station Safaris Private t/a CC Sales SC 70/18 at p 3. This was further put in issue in the first respondent’s opposing affidavit, particularly in para 10.3, where he contended that the applicant did not demand that he sign the documents. He challenged the applicant’s assertion of the alleged “follow-ups” and argued that there was no proof of such demands. In the answering affidavit, the applicant failed to controvert that there was no evidence of the issuance and service of a written demand as per the court order. Mr Chivhenge conceded at the hearing that there was no evidence that the first respondent was ever called upon in writing to sign the documents in terms of para (9) of the court order. It cannot, therefore, be said that he breached the court order or his obligations in terms of para (8) as read with para (9) of the consent order.

41.	In any event, the first respondent even went on to sign the transfer documents after being served with the application. The transfer documents were signed by the first respondent on 2 June 2025. In a letter addressed to the applicant’s legal practitioners dated 3 June 2025 and delivered on 4 June 2025, the first respondent surrendered the signed transfer documents and title deeds for the Gletwin property to the applicant’s legal practitioners in terms of para (8). The same documents were placed before the court. There was no dispute that these signed documents were delivered, and without evidence of a written demand having been made before, it is baseless to allege that the first respondent breached the court order and was, therefore, not entitled to enforce the court order by suing out a writ.

42.	Mr Chivhenge argued that by signing the transfer documents, the first respondent had acquiesced to the breach or admitted that he had breached the order. This view is flawed. The first respondent’s position, supported by evidence before me, was very clear that he had signed the documents notwithstanding that there was no written demand ever sent to him. In the absence of such written demand and failure to sign within seven days of the service thereof, as was required in terms of para (9) of the consent order, there is no breach or default to talk about. An acquiescence or admission of a breach cannot, therefore, arise in the circumstances. There was no breach of the court order, and the argument that the first respondent had dirty hands was misplaced. The writ in question is unimpeachable.  The second ground cannot succeed.

COSTS OF SUIT

43.	Mr Madzoka submitted that costs on a legal practitioner and client scale must be awarded against the applicant. He argued that this is a case of disobedience to a court order. It is the same litigant who comes to court to seek the assistance of the court while in defiance of a court order. This was abuse of court process, which warranted an order for costs on a punitive scale. Mr Chivhenge chose not to address me on the issue. In my view, there is no reason for me to depart from the general principle that costs shall follow the cause. Costs are in the discretion of the court. It is trite that costs at a punitive scale of legal practitioner and client scale are granted only in exceptional cases arising from the conduct of the losing party or the circumstances of the case. The law on costs was restated recently by the Supreme Court in Takashinga Kare Housing Pay Scheme v City of Harare & Ors SC 88/25 at p 16, where MWAYERA JA said:

“40. It is common cause that the award of costs is at the discretion of the court.  However, where the court has awarded costs on a legal practitioner and client scale, it ought to justify the awarding of such costs.  AC Cilliers in The Law of Costs 2nd  ed p 66, classified the grounds upon which the court would be justified in awarding costs as between attorney and client, and they are as follows:

(a) Vexatious and frivolous proceedings

(b) Dishonesty or fraud of litigant

(c) Reckless or malicious proceedings

(d) Litigant’s deplorable attitude towards the court

(e) Other circumstances

41. In Dongo v Joytindra Natveral Naik & Ors SC 52-20 at p.11, the court held that:

“It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously.  It is also settled that costs on a higher scale are granted in exceptional circumstances. The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned.”

Punitive costs are awarded in circumstances where the court sees it fit to punish a party who has abused the court process.” (my emphasis)

44.	I accept that from the evidence before me, the conduct of the applicant deserves censure by an award of punitive costs. The applicant, who was fully aware of her obligations in terms of the court order, simply resorted to raising frivolous technicalities to seek to avoid complying with the court order. Her case was clearly an abuse of court process as it was completely hopeless or frivolous, and vexatious. In seeking to abuse the court process, the applicant also acted in open defiance of a court order which directed her to make payment of US$600,000.00 to the first respondent within the period clearly stated in the order. It was a period she had freely and voluntarily acceded to in the DOS. It was not shown that the period unduly burdened her or made it difficult for her to comply.

45.	The stance she adopted, given the clear terms of the order, was simply meant to delay or harass the first respondent. A litigant who has defied an order of court cannot, in the same breath, seek the court’s assistance to avoid paying by attempting to hide behind non-existent defects in the writ. To that extent, she sought simply to frustrate the enforcement of an order of this court. Such conduct amounts to abuse of court process. At least she ought to have sought an extension of time to pay or engage with the first respondent if the failure to pay within the stated period was based on genuine reasons. This is also what para (10) of the consent order envisages by stating that:

“Should circumstances arise which in the joint view of the parties require the extension of any timelines set out in this order or any relaxation or modification of its terms, the parties shall be obliged to grant each other any such requisite extension or relaxation or modification in writing without necessarily resorting to the Court for the variation of this Court Order.”

46.	Litigants cannot institute proceedings that are obviously unsustainable. A legal practitioner must not abuse court process. He cannot seek to defend the indefensible in a court of law. It is trite that a legal practitioner owes a duty to the court not to be complicit in instituting proceedings which amount to an abuse of court process. Such conduct would be punishable with an award of costs at a punitive scale. See Selex ES p.A v State Procurement Board & Ors SC 45/16 at pp 9-10. I, therefore, found the circumstances before me to be exceptional and to warrant an order for costs on a legal practitioner and client scale.

DISPOSITION

47.	There were no valid grounds established to impeach the writ of execution. It was, in my view, issued in accordance with the provisions of the judgment by consent issued by this court on 3 April 2025 and in terms of the rules. In other words, it strictly followed the form of the court order that warranted its issue. The applicant defaulted on her obligation in terms of the consent order to pay US$600,000.00 to the first respondent. That judgment debt is due and payable to the first respondent. The same court order, in particular para (5), authorised the first respondent to execute against the properties awarded by the court to the applicant to recover the sum due. The writ issued to enforce the court judgment cannot, therefore, by any stretch of imagination be considered to be invalid or fatally defective in the circumstances. There was no evidence that the first respondent breached the court order, either. The application was manifestly groundless or utterly hopeless and without foundation. It could not succeed.

48.	It is for the aforestated reasons that the court dismissed the application with costs on a legal practitioner and client scale.

DEMBURE J:   ………………………………………………

Rubaya & Chatambudza, applicant’s legal practitioners

Hatinahama & Associates, 1st respondent’s legal practitioners