Bongani Mhlanga v Sibusisiwe Mhlanga and Others

Applicant and 1st respondent were married under the Marriage Act (Chapter 5:11) and had two minor children. Following an irretrievable breakdown of the marriage, a divorce order was granted on 23 August 2018. The divorce order required applicant to pay ZAR 25,000 per month for each child (totaling ZAR 50,000). Applicant fell into arrears. The 1st respondent registered the maintenance order with the Magistrates Court and subsequently caused writs of execution to be issued against applicant's property without any default inquiry being conducted. The 4th and 5th respondents attached and sold various movable property (including vehicles, household items, cattle) and immovable property (house at 5312 New Magwegwe Township, Bulawayo). No application for arrear payment was made in the Magistrates Court, no default enquiry was held, and no determination was made of the actual amount of arrears owed. The amounts claimed (US$140,000 and ZAR 1,100,000) exceeded the Magistrates Court's monetary jurisdiction of ZWL 3,000,000 under S.I. 227/2020.

• Whether the applicant had established a proper basis for a declaratur under section 14 of the High Court Act (Chapter 7:06)
• Whether the writs of execution were issued in accordance with law
• Whether the Magistrates Court had acted within its monetary jurisdiction in issuing the writs
• Whether due process was followed in the issuance of the writs, particularly the requirement for a default enquiry under the Maintenance Act
• Whether the attachment and sale of immovable property complied with the procedural requirements of the Magistrates Court Rules and the Magistrates Court Act
• Whether the audi alteram partem rule was violated

1. The application for a declaratur was granted. 2. The writs of execution issued by 2nd and 3rd respondents were declared null and void. 3. The sale of movable and immovable property by the 4th and 5th respondents pursuant to the writs of execution was declared null and void and the sales in execution were set aside. 4. The 1st respondent was ordered to pay the costs of suit.

The Maintenance Act does not provide for the issuance of writs of execution as a primary method of enforcing arrear maintenance payments. Sections 19 and 22 of the Maintenance Act prescribe a specific procedure: when a party defaults on maintenance payments, the Maintenance Court must issue a notice requiring the defaulting party to appear and show cause. A Magistrates Court, being a creature of statute with no inherent jurisdiction, may only do what is authorized within the four corners of the enabling legislation (Connolly v Ferguson). Where writs of execution are issued without conducting the mandatory default inquiry, without determining the actual arrears owed, and for amounts exceeding the court's monetary jurisdiction, such writs are null and void. The attachment and sale of immovable property must comply with the peremptory provisions of Order 26 Rule 8 of the Magistrates Court Rules and section 20(2) of the Magistrates Court Act; failure to do so renders the attachment and sale a nullity. The audi alteram partem rule applies to maintenance default proceedings and cannot be circumvented.

The court observed that the elaborate provisions relating to the sale of immovable property exist to ensure that such property is not sold arbitrarily. The court noted that rules are laid down to ensure legal process is clothed with legality. The court also commented that even if arrears are proven, it remains the court's prerogative to order the defaulting party to pay the whole or part of the amount proven to be due - a creditor is not automatically entitled to the exact amount of arrears without a court determination. The 1st respondent's argument that the applicant had "dirty hands" because he was in arrears and had allegedly taken custody of one child was not addressed substantively by the court, suggesting it was not persuasive in light of the fundamental procedural irregularities found.

This case reinforces important principles in Zimbabwean law regarding: (1) the limited jurisdiction of Magistrates Courts as creatures of statute; (2) the mandatory nature of procedural requirements in maintenance enforcement; (3) the protection of the audi alteram partem rule even in maintenance default proceedings; (4) the strict requirements for attachment and sale of immovable property; and (5) the court's willingness to declare proceedings null and void where fundamental procedural irregularities occur. The judgment provides clear guidance that maintenance arrears cannot be enforced through writs of execution without first conducting a default inquiry as prescribed by the Maintenance Act, regardless of how substantial the arrears may be. It serves as a check against arbitrary enforcement procedures that violate natural justice principles.