Aldah Chekenyere and Dzimbanhete Chekenyere v FBC Bank Limited and The Sheriff of Zimbabwe

The second applicant (Dzimbanhete Chekenyere) was the registered owner of Stand 180 the Grange Township. FBC Bank obtained a default judgment against him in HH 694/14 declaring the property specially executable. The second applicant resided in the United States of America. The first applicant (Aldah Chekenyere), his sister, claimed rights of occupation which she had leased to a tenant, Tapiwa Gurupira, who physically occupied the property with his family from 1 September 2013. The Sheriff advertised the property for sale in execution scheduled for 23 October 2015. On 22 October 2015, the applicants filed a chamber application under Order 40 rule 348A(5a) seeking to postpone or suspend the sale in execution until final disposition of a rescission application (HC 1305/15) filed by the second applicant. The applicants claimed the occupants would suffer great hardship and that the default judgment was wrongfully granted as service had not been properly effected on the second applicant in the USA.

• Whether the applicants had locus standi to bring an application under Order 40 rule 348A(5a) when the execution debtor was not in physical occupation and the dwelling was occupied by a tenant rather than family members
• Whether 'occupation' in rule 348A(5a) requires physical occupation by the execution debtor or members of his family, or extends to occupation through lessees or nominees
• Whether only the execution debtor has the right to make an application under rule 348A(5a) or whether family members also have such standing
• Whether the application was filed within the required 10-day period after service of the notice of attachment
• Whether service on a tenant constitutes proper service under the rules
• Whether an application under rule 348A(5a) requires compliance with Form 29C and the granting of a provisional order first

The application was dismissed with costs.

Rule 348A(5a) requires physical occupation of the dwelling by the execution debtor or members of his family for the rule to apply. The word 'occupation' in the rule means actual physical occupation and does not extend to cover persons who are leasing the dwelling from the execution debtor or from the execution debtor's family members. Only the execution debtor has locus standi to make an application under rule 348A(5a); family members do not have standing to bring such applications unless given power of attorney by the execution debtor. The protection afforded by rule 348A(5a) is designed for individuals in occupation of the attached property or whose family members are in occupation, not for commercial tenants who can find alternative accommodation.

The court observed that although the first respondent did not raise the issue, the first applicant (as a family member rather than the execution debtor) had no locus standi to make the application without having been given power of attorney by the second applicant. The court also clarified that applications under rule 348A(5a) do not require provisional orders in Form 29C as contemplated by rule 247(1). Only the proviso to rule 247(2) applies to such applications, meaning they should be set down urgently but the orders sought are final in nature, not provisional. The court noted that service on a tenant cannot be classified as proper service under Order 5 rule 39(2)(b) as a tenant is not a 'responsible person' for purposes of service.

This case clarifies the scope and requirements of Order 40 rule 348A(5a) of the High Court Rules in Zimbabwe, particularly regarding who qualifies for protection from execution sales of dwellings. It establishes that the protection is narrowly confined to execution debtors and their family members in physical occupation, and does not extend to protect commercial tenants or other third parties. The judgment also clarifies procedural requirements, holding that such applications result in final orders rather than provisional orders, and that only execution debtors (not family members) have standing to bring such applications.