Godfrey Chindomu and Nomusa Chindomu and Global Horizon (Private) Limited v FMC Finance (Private) Limited and Sheriff of the High Court

### Preamble
1
HH 543 - 25
HCH 2439/24
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GODFREY CHINDOMU

and

NOMUSA CHINDOMU

and

GLOBAL HORIZON (PRIVATE) LIMITED

versus

FMC FINANCE (PRIVATE) LIMITED

and

SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE; 9 May 2025 & 15 September 2025

Chamber application in terms of r 71(14) of the High Court Rules, 2021

T. L. Mapuranga for the applicants

R. M. Dhaka for the 1st respondent

DUBE-BANDA J:

This is an application for suspension of the sale of a dwelling in terms of r 71(14) as read with r (15) of the High Court Rules, 2021. The applicants seek an order suspending the sale of an immovable property being a certain piece of land, situate in the District of Salisbury, called stand 12904, Salisbury Township of Salisbury Township Lands situate in the District of Salisbury, measuring 2 601 square meters, held under Deed of Transfer Number 8548/2001 (“the dwelling or property”).

The application is opposed by the first respondent. The second respondent has neither filed any opposing papers nor participated in any way in this matter, and I take it has taken a position to abide by the decision of this court.

Factual Background

For the purposes of this judgment, I need to set out succinctly the factual background of this matter. On 19 October 2021 the parties entered into a deed of settlement in which the applicants undertook to pay the capital debt in the sum of USD142, 392.54 plus interest at the rate of 18% per month on or before 31 December 2021, as follows: in one cash instalment in the sum of US$50 000.00 payable on or before 29 October 2021; a cash instalment in the sum of US$60 000.00, payable on or before 30 November 2021; and a final instalment for the balance due on the capital sum, plus interest on or before 30 December 2021. The applicants agreed that in the event of default, the capital shall accrue additional interest at the rate of 25% per month from 1 October 2021 to date of final payment in full.

The applicants did not pay in terms of the deed of settlement. On 11 November 2021, the first respondent issued a provisional sentence summons against Global Horizon (Private) Limited, (“the third applicant or company”), and the second and third applicants who were the company’s directors claiming payment in the sum of USD142 392.54. The provisional sentence summons having been served and the applicants having not acted upon it, on 1 December 2021 a default judgment was entered against them. The default judgment ordered the applicants, jointly and severally, the one paying the other to be absolved, to pay the first respondent USD142,392.54 payable in Zimbabwe Dollars at the Reserve Bank of Zimbabwe auction rate as at the date of payment together with interest on that amount at the rate of 18% per month plus penalty at the rate of 25% per month from 1 October 2021 to date of payment in full.

The applicants field an application for rescission of the judgment in HC 7268/21, seeking to rescind the default judgment. The application was dismissed on 13 December 2022. After the dismissal of the application for rescission of the default judgment, the applicants filed with the Supreme Court an application for condonation for failure to comply with r 38(10) (a) of the Supreme Court Rules, 2018 and extension of time within which to file a notice of appeal. The Supreme Court in Global Horizon (Private) Limited & Ors v FMC Finance (Private) Limited & Ors SC 36/23 in striking off the roll with costs the application held thus:

“It seems to me the respondent’s counsel’s contention that this application is premised on a positive falsehood is well made and amply substantiated.  There must be and in fact, there are consequences to such conduct. Mr Nyamakura prayed for the striking off of the application. The merits of the application were not ventilated. His prayer will be granted. Costs will follow the cause.”

On 5 June 2023 the company wrote a letter to the first respondent proposing that the sum of US$ 142 392.54 be treated as the capital debt and that interest of US$45 000.00 be added to it, to bring the total to US$187 392.54. The third applicant offered to pay the total amount as follows: US$27 392. 64 within two days of signing the letter; and thereafter six equal instalments of USD26 667.00 every thirty days. The letter was signed by the first applicant as the director of the company. No payment was made in terms of the letter of 5 June 2023.

A writ of execution against immovable property subject to this application was issued on 23 November 2023, and on 22 May 2024 the Sheriff placed the property under judicial attachment. The attachment in execution of the property prompted the applicants to file this application on 5 June 2024.

In its opposition, the first respondent attacked this application on preliminary objections and the merits of the matter. Two preliminary objections were taken, viz non-payment of costs in previous matters; and the fact that the applicants are guilty of material non-disclosure of material facts. I now turn to the preliminary objections taken by the first respondent.

Preliminary Points

Regarding the issue of non- payment of costs, it submitted that the applicants were ordered to pay the first respondent’s costs in HC 6333/21; SC402/23; SC 145/23 and HC 7268/21, and such costs have not been paid. It was argued that they should not be heard on this matter until such time that they have paid the first respondent’s costs in these previous matters. Per contra, the applicants submitted that no evidence has been adduced on the issue of non-payment of costs and sought that this preliminary objection be dismissed.

My view is that a litigant who seeks to raise a preliminary objection predicated on non-payment of costs in a previous matter, must anchor the objection on a taxed bill of costs. It is upon taxation of a bill of costs that costs become due and enforceable. In the absence of a taxed bill of costs, the debtor would only know that the are costs to be paid but would not know the amount thereof. It is a taxed bill of costs that places the opposing litigant in mora. In other words, an order of costs, standing alone, without a taxed bill of costs does not create legal obligation to pay. In casu, no taxed bills of costs were produced in HC 6333/21; SC402/23; SC 145/23 and HC 7268/21, therefore, it cannot be said that the applicants defaulted in paying the costs. It is for these reasons that this preliminary objection has no merit and is refused.

The second preliminary objection is that the application is riddled with outright falsehoods. It was submitted that the applicants by asserting that they have paid USD75, 337.37, are including payments made before the default judgment was granted. The default judgment was granted on 1 December 2021, and the applicants include payments made on 20 July 2021 and 27 July 2021. It was submitted that this is a misleading assertion intended to create a false impression that the applicants have been consistent in their payments. It was submitted further that a litigant seeking to entreat the indulgence of the court must do so with utmost good faith. The first respondent sought that this objection be upheld, and this application be dismissed.

A reading of the answering affidavit seems to suggest that the applicants take the position that in an application in terms of r 71(14) as read with r 71(15) a respondent cannot raise preliminary objections, but must deal with whether the jurisdictional requirements of the rule have been satisfied. I do not agree. A litigant is entitled to take preliminary objections; however, each case must be dealt with according to its merits. In the context of this application, the issues taken by the first respondent as evidence of non-disclosure and falsehoods are intertwined with the merits of the matter. The justice of this case requires that these allegations be located and assessed in the context of the merits.  It is for these reasons that this preliminary objection is refused.

The Law

Where a judgment debtor applies under r 71(14) as read with r 71(15) for the postponement or suspension of the sale in execution or eviction the judge may grant the application in terms of r 71(18) which reads:

“(18) If, on the hearing of an application in terms of subrule

(14), the judge is satisfied—

(a) that the dwelling concerned is occupied by the execution

debtor or his or her family and it 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

(b) that—

(i) the execution debtor has made a reasonable offer

to settle the judgment debt; or

(ii) the occupants of the dwelling concerned require

a reasonable period in which to find other

accommodation; or

(iii) 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 or she may specify.”

In Bonamati v FBC Bank Ltd 2020 (1) ZLR 1065 (H) at 1068 the court said what it means is that the judge may postpone or suspend the sale of the dwelling if he is satisfied that the execution debtor or his family are in occupation of the house and will likely suffer great hardship if the dwelling is sold. In addition to showing that great hardship is likely to be suffered, the execution debtor should make a reasonable offer to settle the debt. If a reasonable offer is made the judge will postpone or suspend the sale to enable the execution debtor to pay off the debt. If the execution debtor cannot make a reasonable offer to settle the debt, he should, in addition to showing that he or his family will likely suffer great hardship, show that he or his family needs a reasonable period to secure alternative accommodation. In that case the judge will postpone or suspend eviction for a reasonable period to enable him or his family to find alternative accommodation before they can vacate the dwelling. If the execution debtor, after showing that he or his family will likely suffer great hardship, neither offers a reasonable offer to settle the debt nor shows that he or his family needs a reasonable period to acquire alternative accommodation, but advances some other good ground which persuades the judge, the judge may postpone or suspend the sale or the eviction on conditions he thinks fit.  Put differently, for a judgment executor to succeed in his application it is imperative in every case that he shows, firstly, that there is occupation of the dwelling by him or his family, and secondly, that he or his family will likely suffer great hardship. After satisfying these requirements, he must show that he has made a reasonable offer to pay the debt or showing that he or his family needs a reasonable period to find alternative accommodation, or by advancing some other good ground which persuades the judge to find in her favour. See Masimbe v Rainbow Tourism Group HH-158-16; Masendeke v Central Africa Building Society & Anor 2003 (1) ZLR 65 (H).

In casu, it is not seriously disputed that the first and the second applicants and members of their family and extended family are in occupation of the dwelling. It has to be determined, on the factual matrix of this case, whether, if the sale in execution proceeds, the first and the second applicants and their family will suffer great hardship, and whether they have made a reasonable offer to extinguish the debt, or there is some other good ground for suspending the sale of the property.

Great Hardship

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. The hardship must be more than the ordinary hardship 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 rented accommodation. The hardship must be great in that it results in the debtor and his family being rendered homeless or destitute. See Masendeke v Africa Building Society & Anor supra and Makupe v ZB Bank Ltd 2006 (1) ZLR 759 (H). It is so because as a general rule a creditor who has obtained judgment is entitled to enforce such judgment by levying execution and the court has no jurisdiction to restrain the judgment creditor from enforcing such legal right – Sabena Belgian World Airlines v Vas Elst 1981 (1) SA 1235 (T) and South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 544. Therefore, r 71(14) should be viewed as an exception to this general rule.

It is contended that if the property is sold in execution of the judgment debt, the first and the second applicants and eight members of their immediate and extended families will suffer great hardship. It was submitted that the property has been the first and second applicants and their family’s home and residence since 2001, and they consider it their permanent home. It was further submitted that the second applicant suffers from a medical condition called chronic back problem. The living area and bathrooms are said to have been specifically modified to cater for her special medical needs. It was further submitted that if the property is sold and she is evicted, she will suffer great medical and psychological hardship as she will have to secure another suitable accommodation which will have to be structurally adjusted. It was further submitted that the property has sentimental value in that the first applicant’s mother lived and died there being cared for by the applicants, and that his father aged eighty-nine years resides at the dwelling. He is said to be attached to the property since that is the place where his wife died and will be traumatized if he is made to vacate. It was further said that he will suffer great hardship in finding suitable accommodation which has to be modified to cater for his advanced age. In addition, it was contended that four children born of the late first applicant’s brother reside at the property and are financially dependent on the applicants. It was submitted that the first and second applicants and their family members have no other home except the property in question. It was contended further that the first and second applicants’ clan consider the property as their traditional home since all family gatherings happen thereat. Further, it is contended that the applicants and their family are accustomed to a lifestyle which they will not be able to maintain if the property is sold.

In considering the issue of great hardship, it is the interests of the applicants and their immediate family, particularly minor children, that is considered. The interest of adult children to be relevant, there must be evidence that they are still dependent on their parents, particularly those still at school or college. My view is that the interest of those adult children, married and employed, is not relevant to this inquiry. Further the interest of the members of the extended family is not relevant to this inquiry. I take the view that this is the only interpretation that makes sense rather than a mockery of justice.

In addition, the issue of sentimental value to the property is irrelevant to the inquiry of great hardship. I also take a robust view that the issue of the clan considering the property as their traditional home since it is the place where all family gatherings happen is irrelevant.  Further, the contention that the applicants and their family are accustomed to a lifestyle which they will not be able to maintain if the property is sold is also irrelevant. Further there is no evidence that the second applicant suffers from a medical condition that makes it impossible for her to relocate to another property, rented or otherwise. There is no evidence in the form of building plans etc. to show that the property was specifically and structurally modified to cater for her medical condition. The first and second applicants may suffer general inconveniences of losing a home, which afflicts debtors who do not settle their obligations.  They may also suffer inconvenience of relocating and no more.  A closer scrutiny of the facts of this case shows that if the property is sold in execution, the first and the second applicants will not be rendered homeless. They will easily secure suitable alternative accommodation. The interest of the first applicant’s father cannot be a focal point in this matter. The first and the second applicants will relocate with him. The facts of this case show that no great hardship, as anticipated by the rules of court will occur if the property is sold in execution.

Offer of Settlement

The second requirement relevant to this application is whether the applicants have made a reasonable offer to settle the judgment debt. In their papers the applicants are offering to pay US$10 000.00 per month starting on 10 July 2024, until the debt is extinguished, and that all payments shall be made on or before 10 of every month. The capital debt is USD142,392.54 plus interest at the rate of 18% per month and a penalty interest at the rate of 25% per month calculated from 1 October 2021 to date of full payment. The total interest is 43% per month. The applicants cannot be heard to say the capital debt is less than USD142,392.54. This is so because on 5 June 2023 they admitted in a letter signed by the first applicant that as at that date the capital debt was US$142 392.54. The first respondent submitted that as at the date of the application, there can be no doubt that because of interest the debt has doubled. I agree. Considering that the debt has doubled because of interest, the offer of USD$10 000.00 per month is too insignificant and will amount to a mere drop in the ocean. It is therefore an unreasonable offer.

In addition, this offer is not bona fide, I say so because this application was filed on 5 June 2024 and heard on 9 May 2025. At the hearing, I enquired from counsel for the applicants whether they have commenced paying the amount of USD10 000 per month. It became clear that they had not made such payments. In essence no payments were made between 5 June 2024 and 9 May 2025.  This is in contrast with their offer that they will start making payments on 10 July 2024. A bona fide litigant in the position of the applicants would commence paying the equivalent of the instalment offered upon filing the application, or even before the filing of the application. This is what a bona fide litigant will do.

This offer must also be considered in the context of the previous offers made by the applicants. On 19 October 2021 they signed a deed of settlement and agreed on a timeline to pay off the debt. They did not pay in terms of the deed of settlement. On 5 June 2023, they made another offer of settlement which they failed to abide by. In essence the applicants have made offers they have not honoured. In addition, the default judgment was granted on 21 December 2021, and this application was filed on 5 June 2024. A period of thirty-one months lapsed between the date of judgment to date of filing this application. No payments were made in the thirty-one months period.  If applicants were making monthly instalments, even small amounts, they could have either extinguished the debt or significantly reduced it.

In the circumstances, the offer of US$10 000 is just a façade to evade execution, and second, is too insignificant to be reasonable.

Whether there are some other good grounds for suspending the sale

The court is enjoined by r 71(18)(b)(iii) to consider whether there are some other good grounds for suspending the sale of the property. The applicants submitted that there is a mortgage bond, in favour of a different creditor registered against the property and it was not declared executable. The fact that the property is mortgaged, albeit to a different creditor, shows that the applicants have placed it as security for a debt, and are at peace with the fact that in the event of a default it may be executed upon. The averments by the second applicant that the property was registered in her name to separate it from the business of the company and the first applicant and to safeguard it from business related issues cannot be correct. It is not in sync with offering it as security for a debt. This conflicts with the contention that if the property is sold in execution the applicants would suffer great hardship.

It is further contended that the applicants have been making payments to reduce the judgment debt. The applicants attached a reconciliation showing that as at 8 February 2023 they had paid USD75,337.37. This reconciliation is at variance with the letter dated 5 June 2023, in which the applicants admitted that as at that date the capital of US$142 392.54 was owing plus interest of US$45 000.00 totaling US$187 392.54. If by 8 February 2023 they had reduced the debt by USD75,337.37 this would have been stated in the letter of 5 June 2023. It was not. In any event, the reconciliation itself has another problem, even if for moment is accepted, it includes two payments of USD7,519.60 allegedly paid on 20 July 2021, and the amount of USD8,197.37 allegedly was paid on 27 July 2021. These two amounts, if paid, were paid before the default judgment was granted on 1 December 2021 and therefore have not reduced the capital date as at the date of judgment.

It was further submitted that the property has been wrongly described in the writ of execution, in that the Deed of Transfer number is stated as 2240/72, when the correct number is 8548/2001. I take the view that the incorrect citation of the Deed of Transfer number is not a good ground to suspend the execution.

The additional grounds submitted by the applicants do not qualify as good grounds for suspending the sale of the property in execution.

Disposition

The company is the third applicant in this application. It filed an affidavit in support of the application. This suggests collusion between the first and the second applicant and the company to frustrate execution. What is conspicuous about the affidavit filed by the company is that   it says it has the capacity to make monthly instalments of USD10,000.00 until the debt is extinguished. However, it says nothing, and gives no explanation for the previous offers made and not honoured.

It must be stated that r 71(14) as read with r (15) of the High Court Rules, 2021 provides an exception to the general rule that a creditor who has obtained judgment is entitled to enforce such judgment by levying execution against the property of the judgment debtor. It is in this context that those who want to benefit from this rule must meet the jurisdictional requirements provided in the rule, i.e., must prove great hardship and must make a reasonable offer to liquidate the judgment debt. Great hardship is not inconvenience that may afflict any person whose dwelling has been sold in execution of a judgment. In addition, a reasonable offer means one that has a realistic chance of liquidating the judgment debt within a reasonable time. On these facts, to accede to such an application would result in injustice and will destroy the very basis upon which the justice system rests.

This rule is not meant to provide shelter and protection to debtors who are recalcitrant and employing every trick in the book to evade payment of the judgment debt. Debtors falling into this category have no place under this rule. Where there is an indication that the application is not bona fide and that the litigant is merely seeking to hide under this rule to avoid paying the judgment debt, the court must not accede to such an application. It is for the above reasons that this application cannot succeed.

Costs

There remains to be considered the question of costs. No good grounds exist for a departure from the general rule that costs follow the event. The applicant sought costs on a legal practitioner and client scale. In Railings Enterprises (Pvt) Ltd v Luwo & Ors 2020 (2) ZLR 51 (H) the court said costs at the rate of legal practitioner and client should be reserved for cases where it can be found that a litigant conducted itself in a clear indubitably, vexatious and reprehensible manner. Such an award is very exceptional and intended to be very punitive and indicative of extreme opprobrium. It should be in relation to conduct that is clearly and extreme scandalous or objectionable that these costs should be awarded. See; Kangai v Netone Cellular (Pvt) Ltd 2020 (1) ZLR 660 (H). In casu, I take the view that the conduct of the applicants is objectionable. The participation of the judgment debtor, the company, in these proceedings is very objectionable. It indicates a serious collusion.  It is an abuse of the process of this court.  The applicants tried to pull wool over the eyes of this court by hiding the true purpose of this application, which is to evade payment decreed by this court. A deed of settlement was signed and not followed through. A payment plan was made and not followed through. A strategy to stall the date of reckoning. It is designed to frustrate the execution of a court order on pretext that they would pay, when they have no intention of paying. A case has been made for costs on a legal practitioner and client scale.

In the result, I order as follows:

The application is dismissed with costs on a legal practitioner and client scale.

Dube Banda J: ……………………………………………………….

T.K. Hove and Partners, applicants’ legal practitioners

Dhaka Lightfoot & Stone Attorneys, 1st respondent’s legal practitioners