The Mount Family Trust and Albert Chitaunhike v Onward Bhoso and Master of High Court and Sheriff of the High Court of Zimbabwe

### Preamble
1
HCMTCJ -25
HCMTC 63/25
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THE MOUNT FAMILY TRUUST

and

ALBERT CHITAUNHIKE

versus

ONWARD BHOSO

and

MASTER OF HIGH COURT

and

SHERIFF OF THE HIGH COURT OF ZIMBABWE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, …. May 2025

REASONS FOR THE ORDER

Mr C Maunga (Jr), for the 1st Applicant

Mrs M Mandingwa assisted by Ms M Karimanzira, for the 2nd Applicant

First Respondent in Person

MUZENDA J: On 27 March 2025 at Mutare, after hearing the parties in hearing of an urgent chamber application for stay of execution pending finalization of an action pending at this court which is awaiting a request for setting down for trial, I granted the following interim order:

“It is Ordered that:

The Urgent Application for Stay of Execution partially succeeds on the following conditions:

The property in question should remain vacant until the matter between second applicant and first respondent is finalised and all current occupants are given up to 30 April 2025 to vacate the house.

The processing of title deeds for that house is to be suspended until the matter alluded to above in paragraph (a) is finalised.

The costs shall be in the cause.”

On 28 April 2025 applicant’s legal practitioners of record wrote a letter to the Registrar indicating that they had filed an appeal to the Supreme Court under SC 252/25 and as such they demanded reasons for my order. I perused the record of proceedings and noted that there was no leave applied by the applicant to appeal to the Supreme Court as my order was basically a provisional interim order. Assuming that the aspect of leave was in the domain of the Supreme Court I resolved to avail my reasons for my judgment, and these are they.

Background Facts

The first applicant brought summons against first respondent and obtained a judgment by default. When the writ of execution was served on the first respondent, he timeously within the limits of the rules applied for rescission of the default judgment and properly served the second applicant. After the second applicant was served by the first respondent and fully aware of the application for rescission of the default judgment it proceeded to sell the property in question. On 22 July 2024 I gave the following order:

“(1)	The application for Rescission of judgment is granted.

(2) 	The applicant is ordered to file its plea within ten (10) days from the date of this order.

(3)	Costs in the cause.”

Second applicant appealed against my 22 July 2024 to the Supreme Court without my leave. On the date of hearing at the Supreme court the purported appeal was struck off. Meanwhile the first respondent had applied for leave to execute judgment of 22 July 2024 pending appeal filed by second applicant to the Supreme Court. On the date of hearing of the application for leave to execute, it was agreed by the parties that in view of the appeal having been struck off, the status a quo ante the default judgment had to be restored, thereby allowing the first respondent to re-occupy the estate property until the main matter was resolved, accordingly I granted the following order under case number HCMTC 238/24 dated 17 March 2025:

“1. 	The Appeal filed by First Respondent in the Supreme Court having been struck off under SC 488/24 dated 6th February 2024, it is therefore ordered as follows:

The application for leave to execute pending Appeal has been overtaken by events.

The order for Rescission of Judgment is extant and the status a quo ante the default judgment in favour of first respondent becomes operative.”

Costs in the cause.”

The first respondent applied for a writ of execution for applicant’s ejectment from the estate property and duly instructed the Sheriff. Upon being served, applicant then approached this court for a stay of execution. In its founding affidavit applicant had indicated that it had made some renovations of the property and had placed tenants in that property but could not reveal the names of the tenants. The order I cited in the preamble to this judgment was then granted.

The sequence of events of this matter reflects a typical attitude of a litigant who does not respect the rule of law nor respect orders of this court. Second applicant having been served with an application for rescission of judgment granted in default, deliberately decided to remove by the estate house to a third party. Applicant well aware of a rescinded judgment embarked on renovating the property and putting tenants in the house. The cause of the sale of the house was a judgment granted in default, which judgment was subsequently rescinded. By renovating the estate property applicant reposed “a do not care attitude” trying to hide behind a veil of “an innocent buyer”. The critical consideration is that if a trial court dismisses second applicant’s summons and grant an order in favour of first respondent what will be the fate of the applicant’s purchase of the property? The conduct of applicant is like one who adopts the stance of an onlooker observing two pugilists fighting, second applicant and first respondent and mocks the two and it not being affected. Second applicant falsely believes that whatever the outcome of the main matter, the agreement of sale between him and applicant will not be overturned.

It is the duty of this court to jealously guard the integrity of its orders and litigants have a duty to abide by the orders. For applicant to selfishly cling to a property which was sold to applicant without the knowledge and consent of the first respondent as a beneficiary to the estate property is tantamount to ridiculing this court’s order. Why applicant would not wait per the finalization of the main matter between second applicant and first respondent baffles the logic of this behaviour.

Since the rescission of the judgment second applicant shows no interest in the matter. If the stay of execution is granted without conditions, then the matter will not be brought to finality, there would be no drive from the applicants to complete the matter. First applicant would have nothing to lose and second applicant has already disposed of the property and been paid. Why would second applicant pursue the matter. The condition which I have attached to the stay of execution are meant to cater for both parties, or all parties balance of convenience, fairness, justice and equity in tandem with protection of this court’s orders. Applicant has an interest in the property bought; first respondent has a rescinded judgment in his favour. As clearly pointed out in the matter of Chase Mineral (Private) Limited v Madzikita 2002 (1) ZLR 488 (H) per Honourable Sibanda J stay of execution “could only have been intended to come into effect where both parties had rights lawfully pending final determination and resolution by a court.”

It is also my firm view that this court has a discretion in a proper case, to suspend execution of a judgment, and that discretion must be judicially exercised. An equitable and justified order should be given to protect those parties who have the rights regardless of what has been requested or not by the parties in such an application. This is one case before me where on one hand this court had to protect first respondent who has an order on his side in his favour allowing him to present his side of the story, on the other hand applicant has invested its money into a property which it seeks to enjoy but cannot do so as of now because of the dispute between second applicant and first respondent. Once the matter is finalised by the court applicant can enjoy the fruits of its investment. The occupants put in the house by applicant were not listed by applicant, however, again in the interests of justice, a period was set in order for them to look for alternative accommodation so as to avoid applicant being placed on an advantage of a laisse farie situation where court orders do not bother or affect them. In the same vein re-occupied the house after being granted rescission, it would be fair if the house remains unoccupied by neither applicant nor first respondent until the dispute is resolved. This in my view would reflect parity and equity in the upholding the principles of natural justice, rule of law, parity and equity.