Artwell Chiguvi v Trust Bank Corporation

On 16 August 2011, the applicant and Committed Investments (Pvt) Ltd were granted a loan facility of US$11,300.00 by the respondent bank. The applicant signed a surety Mortgage Bond over his property, Stand 7387 Bulawayo Township, which was registered under number 1330/2011. The applicant breached the loan agreement by failing to make payments. By 20 June 2013, the applicant was in arrears of US$64,098.88. The respondent obtained default judgment against the applicant, with the property declared executable. Between July 2013 and February 2015, the applicant made no payments. On 16 February 2015, the applicant received notification of the sale in execution of his immovable property. He filed an application on 11 March 2015 (outside the 10-day period prescribed by Rule 348A) seeking postponement or suspension of the sale. The applicant paid US$2,000.00 on 16 February 2015 and US$500.00 on 4 March 2015, offering to pay US$2,000.00 per month until the debt was liquidated. The applicant argued that the property was his family's only dwelling and that the sale would cause extreme hardship.

• Whether Rule 348A of the High Court Rules 1971 applies to mortgaged property used as a dwelling
• Whether the applicant and his family would suffer great hardship if the dwelling was sold or they were evicted
• Whether the applicant made a reasonable offer to settle the debt
• Whether suspending the sale would amount to rescission of the court order declaring the property executable through the back door

The application for postponement or suspension of sale in execution was dismissed with costs.

Rule 348A of the High Court Rules 1971, which provides for postponement or suspension of sale of dwellings, does not apply to mortgaged property that is the subject of foreclosure proceedings. The execution of mortgaged property in foreclosure is fundamentally different from ordinary execution, as it involves the realization of security pledged by the mortgagor. To interpret Rule 348A as applying to mortgaged property would undermine the established system of hypothecation and the mortgagee's right to foreclose. For hardship to warrant suspension under Rule 348A, it must be 'great hardship' that would render the execution debtor homeless or destitute, not merely the ordinary hardship of losing one's residence.

The court observed that mortgages play a dual economic function: enabling persons without liquid resources to obtain funds or credit facilities, and providing investors with attractive rates of interest. The court noted that to allow a mortgagor to renege on payment obligations by using Rule 348A would have dire consequences for home seekers, borrowers, and investors. The court also commented that the applicant's conduct in failing to make any payments between July 2013 and February 2015, despite earning US$4,800.00 per month and owning valuable mining claims, demonstrated unreasonableness in his settlement offer.

This case clarifies the scope of Rule 348A of the High Court Rules 1971 in Zimbabwean law, establishing that the rule does not apply to mortgaged property in foreclosure proceedings. The judgment reinforces the commercial importance of the mortgage system and the security it provides to lenders, preventing debtors from using procedural rules to avoid their obligations under mortgage bonds. The case also interprets the threshold for 'great hardship' under Rule 348A, establishing that ordinary hardship from loss of residence is insufficient; the hardship must result in the debtor being rendered homeless or destitute. The decision protects the integrity of mortgage bonds as security instruments and the foreclosure process.