CMED (Private) Limited v BB & B Geological Services (Pvt) Ltd and The Sheriff Zimbabwe N.O

On 6 November 2012, the applicant and first respondent entered into a consent order at pre-trial conference stage in HC 6268/07. The terms required: (1) the applicant to repair the respondent's compressor to good working condition by 12 December 2012; (2) the first respondent to deliver a brand new separator to the applicant by 16 November 2012 to enable full repairs, failing which the applicant would deliver the compressor in a state certified to be in good working order; (3) the first respondent to engage Newmatic Tools (Private) Limited to inspect and certify the compressor as fully repaired through bench and field tests between 22 November 2012 and 10 December 2012. The first respondent failed to deliver the brand new separator. The applicant delivered the compressor without the separator in a condition it certified to be repaired and in good working order. The respondent refused to accept delivery and insisted on bench and field tests with the old separator. The respondent then issued a writ of execution on the basis that the applicant failed to comply with the consent order. On 7 June 2013, the applicant's property was attached. The applicant then sought a stay of execution and a declaratory order that it had fulfilled its obligations under the consent order.

• Whether the applicant complied with its obligations under the consent order despite the first respondent's failure to supply a brand new separator
• Whether the court should exercise its discretion to grant a declaratory order under section 15 of the High Court Act [Chapter 7:06]
• Whether the writ of execution issued by the first respondent was wrongful
• Whether the attachment of the applicant's assets should be removed

1. The second respondent (the Sheriff) was ordered to remove from attachment the applicant's assets attached on 7 June 2013 in pursuance of a writ of execution issued under case HC 6268/07. 2. It was declared that the applicant fulfilled its legal obligations in terms of the order signed by the parties under case number HC 6268/07. 3. The first respondent was ordered to pay the costs of suit.

Where parties enter into a consent order with conditional obligations, a party who fails to comply with a condition precedent cannot enforce subsequent obligations against the other party that are dependent on performance of that condition precedent. Where a consent order provides alternative obligations depending on the fulfillment of a condition, and the condition is not met due to one party's default, the other party is entitled to perform the alternative obligation. A writ of execution issued by a party who has itself failed to comply with the terms of a consent order is wrongful. Under section 14 of the High Court Act, the court may grant a declaratory order where the applicant has a direct and substantial interest in the subject matter relating to an existing right, no consequential relief is sought, and the interests of justice or convenience demand such an order.

The court observed that the respondent's insistence on bench and field tests with an old separator when it had failed to supply the brand new separator required by the consent order was "not only unrealistic but absurd" and that the respondent's claims were "incomprehensible and fallacious." These comments emphasized the unreasonableness of the respondent's position but were not strictly necessary for the legal determination of the case.

This case is significant in Zimbabwean jurisprudence for clarifying the interpretation and enforcement of consent orders, particularly where one party fails to comply with precedent conditions. It demonstrates the principle that a party cannot enforce a consent order against another party when it has itself failed to comply with conditions precedent that would enable the other party's full performance. The case also illustrates the proper exercise of the court's discretion to grant declaratory orders under section 14 of the High Court Act where an applicant has a direct and substantial interest in the subject matter and the interests of justice demand such relief, even where no consequential relief is sought. The judgment reinforces that a party in breach of a consent order cannot benefit from its own non-compliance by seeking to execute against the other party.