Brinworth Services (Pvt) Ltd v Infrastructure Development Bank of Zimbabwe and The Sheriff of Zimbabwe

Brinworth Services (Pvt) Ltd was the execution debtor against whom Infrastructure Development Bank of Zimbabwe obtained a judgment. On 5 September, the first respondent caused the attachment of Stand 3404 Salisbury Township belonging to the applicant company. The company sought an order under Rule 348A(5)(a) of the High Court Rules to postpone or suspend the sale of the dwelling. The dwelling was used as offices by the company and as a residence for Colleen Ruth Zimbeva, a director of the company, who lived there with two relatives. The director deposed to the founding affidavit, claiming the dwelling was her only home and that the sale would render her and her family homeless and destitute. The applicant company offered to settle the debt in four instalments. The parties had previously entered into a deed of settlement on 11 August 2017, with payment due by December 2017, but a year later the applicant had paid nothing.

• Whether Rule 348A(5)(a) of the High Court Rules, which allows for postponement or suspension of sale of a dwelling, is available to a company (juristic person) as opposed to a natural person
• Whether a director of a company residing in a company-owned dwelling can invoke Rule 348A(5)(a) through the company
• Whether the application was properly before the court given that the execution debtor was a company and not a natural person
• The proper interpretation of 'dwelling' and 'execution debtor' within the context of Rule 348A(5)(a)
• Whether costs de bonis propriis should be awarded against the legal practitioner who prepared the application

The application was dismissed. The applicant was ordered to pay the costs of the application on a higher scale.

Rule 348A(5)(a) of the High Court Rules applies only to natural persons who are execution debtors and their families, not to companies or other juristic persons. A company cannot invoke Rule 348A(5)(a) to postpone or suspend the sale of a dwelling because: (1) companies cannot take physical occupation of a dwelling; (2) companies do not have families in the sense envisaged by the rule; (3) the rule was designed to protect families in financial distress from becoming homeless; (4) the specific mention of 'family' in the rule excludes companies. A director of a company residing in a company-owned dwelling cannot invoke the provisions of Rule 348A(5)(a) through the company where the company is the execution debtor, as the director is not the execution debtor and has no direct and substantial interest in the dwelling. Only the execution debtor or members of his family in occupation of the dwelling can bring an application under Rule 348A(5)(a).

The court observed that if the legislature had intended companies to be protected under Rule 348A(5)(a), it would have made specific reference to companies in the rule. The court noted that Rule 348A was introduced to address the pernicious problem of creditors attaching dwellings, with the Secretary for Housing roped in as a protective measure to bail out families by paying their debts on their behalf. The court remarked that a Rule 348A(5)(a) application cannot be brought by a person who is not in occupation of the dwelling on behalf of another person. The court also commented that the mere fact of deposing to a founding affidavit does not make one a party to the application or give rise to an entitlement to an order. On the issue of costs de bonis propriis, the court noted that there were two conflicting judgments on the applicability of the rule and the law was not yet settled, with no decision from the upper court on the contentious issue, which provided a reasonable basis for bringing the application.

This case provides important clarification on the scope and application of Rule 348A(5)(a) of the High Court Rules in Zimbabwean law. It establishes that the protective provisions for suspending or postponing sale of dwellings are limited to natural persons and their families, not companies or juristic persons. The judgment addresses a conflict in the case law and provides detailed reasoning for why the rule cannot be invoked by companies, even when directors and their families occupy company-owned dwellings. This has significant implications for execution proceedings involving company-owned residential properties and clarifies the protection available to debtors facing attachment of dwellings. The case demonstrates the court's purposive approach to interpreting procedural rules by examining legislative intent and the mischief the rule was designed to address.