Abigail Makono (Nee Billie) v Charles Nyengera Makono and Others

The applicant and first respondent were married on 6 August 2011 under the Marriage Act (now Marriages Act). In 2021, the first respondent instituted divorce proceedings (Case No. HCH 2634/21). The parties concluded a Deed of Settlement (DOS) which was incorporated into a consent order granted on 3 April 2025. In terms of the consent order, the applicant was awarded two properties (1297 Gletwin Suburb and Lot 7A/78 Kaguvi Street, both in Harare), while the first respondent was awarded 18848 Robert Mugabe Way, Harare, plus US$600,000.00 to be paid by the applicant within 4 months from 1 January 2025. The order stipulated that failure to pay would entitle the first respondent to execute against the properties awarded to the applicant. The applicant failed to pay the US$600,000.00 by 1 May 2025. On 8 May 2025, the first respondent obtained a writ of execution against the applicant's movable and immovable property. The applicant then sought to set aside the writ on grounds that it was irregular and defective.

• Whether the writ of execution was irregular and fatally defective
• Whether a single writ can validly combine execution against movable and immovable property
• Whether a judgment creditor can execute against property still registered in his own name (as co-owner) but awarded to the judgment debtor by court order
• Whether a party who allegedly breached a consent order can enforce the same order
• Whether the obligations in the consent order were reciprocal such that the applicant's duty to pay was dependent on the first respondent signing transfer documents
• Whether costs on a legal practitioner and client scale were justified

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

The binding legal principles established are: (1) A writ of execution under Rule 69(5) may validly combine execution against both movable and immovable property in a single writ (Form 33). (2) Registration of immovable property creates a rebuttable presumption of ownership; where a court order awards property to a party, that party is the rightful owner notwithstanding that registration has not yet been transferred. (3) A consent order constitutes both a contract between parties and a court order with the full force of law; it must be enforced according to its clear and unambiguous terms. (4) Where a court order expressly authorizes execution against specified property upon default, such property becomes specially executable, and the judgment creditor may execute against it regardless of registration particulars. (5) A judgment in rem determining ownership or title to property is binding on all parties and non-parties; parties are estopped from asserting ownership contrary to what the court has declared. (6) Obligations in a consent order are not reciprocal or interdependent unless expressly made so; each obligation must be performed according to its stated terms and timelines. (7) Where a consent order specifies that a party must act within a certain period "from the date of receipt of a written demand," there is no breach unless such written demand is proven to have been made and not complied with. (8) A litigant who brings manifestly groundless proceedings to avoid complying with a court order abuses the court process and may be ordered to pay costs on a legal practitioner and client scale.

The court made several non-binding observations: (1) Legal practitioners owe a duty to the court not to be complicit in instituting proceedings which amount to an abuse of court process, and should not "defend the indefensible." (2) Paragraph 10 of the consent order, which allowed parties to extend timelines by mutual agreement without court intervention, suggested that the applicant could have engaged with the first respondent or sought an extension of time to pay rather than attempting to invalidate the writ. (3) The court noted approvingly that counsel for the applicant properly abandoned the first ground of challenge once it became clear it was unsustainable, implying this is the appropriate professional conduct. (4) The court observed that a consent order signifies not merely a contract but "a contract between the parties superadded with the command of the court," citing Malaysian authority Mayhan Allied BHD v Kenneth Godfrey Gomez. (5) The judgment contains extensive discussion of the three limited circumstances where court orders are void ab initio (lack of proper service, lack of proper mandate, or lack of jurisdiction), drawn from Aponte v Antolini Luigi & C.S.P.A & Ors SC 89/25, though this was not directly applicable to the facts.

This case is significant in Zimbabwean law for several reasons: (1) It clarifies that a single writ of execution can validly combine both movable and immovable property under Rule 69(5) of the High Court Rules, 2021. (2) It reinforces the principle that registration of immovable property is not conclusive proof of ownership and can be rebutted by special circumstances, including court orders awarding property. (3) It establishes that a consent order incorporating a deed of settlement constitutes both a contract and a court order with full legal force, and parties cannot evade their obligations through technicalities. (4) It confirms that where a court order makes property "specially executable" upon default, the judgment creditor can execute against such property even if it remains registered in the creditor's name as co-owner, provided the court has awarded it to the debtor. (5) It demonstrates the court's approach to interpreting consent orders: giving effect to clear and unambiguous language without reading in obligations not expressly stated. (6) It affirms that abuse of court process, including bringing frivolous applications to avoid complying with court orders, warrants costs on a punitive legal practitioner and client scale. (7) It underscores the principle that extant court orders must be obeyed until set aside, and the court becomes functus officio once judgment is granted.