David Chiweza v Divvyland Investments (Pvt) Limited and The Sheriff for Zimbabwe

The applicant (judgment debtor) lost an appeal in the Supreme Court against a High Court judgment, resulting in a Supreme Court order granting the first respondent's claim for eviction of the applicant and all those claiming occupation through him from 12 Le Roux Drive, Hillside, Harare. On 11 January 2022, the first respondent caused a writ of ejectment to be served on the applicant, giving notice that eviction would take place on 14 January 2022. The applicant's legal practitioners had previously written to the first respondent seeking three months to vacate the premises but received no response. One of the occupants had filed a constitutional application (HC 6891/21) challenging the constitutionality of the eviction. The applicant brought a chamber application seeking to declare the notice of removal invalid and to postpone the eviction until conclusion of the constitutional application.

• Whether Rule 71(14) of the High Court Rules 2021 applies where no dwelling has been attached in execution and only a writ of ejectment has been issued
• Whether the protection against eviction under Rule 71(14) applies independent of attachment of the dwelling in execution
• Whether the High Court has jurisdiction to postpone or suspend an order of the Supreme Court in the context of supervising execution

The application was dismissed with costs. The court refused to grant costs on a punitive legal practitioner and client scale as sought by the first respondent.

The protection afforded by Rule 71(14) of the High Court Rules 2021 against eviction from a dwelling is only triggered when: (1) the dwelling has been attached in execution pursuant to a writ of execution against immovable property; and (2) the execution debtor has been served with a notice of attachment in terms of Rule 71(3) together with a copy of the writ of execution. The right to apply for postponement or suspension of eviction under Rule 71(14) vests only in the execution debtor and cannot be exercised where only a writ of ejectment has been issued without any attachment of the dwelling. The precursor to protection of rights of occupants of a dwelling house against eviction is the attachment of the dwelling itself, as the right is exercisable through the execution debtor.

The court observed that while the High Court cannot suspend or interfere with orders of the Supreme Court (being a superior court), the exercise by the High Court of powers in oversight of execution under Rule 71 would not constitute offensive suspension or interference with Supreme Court judgments contemplated in authorities such as CFU v Mhuriro 2000 (2) ZLR 405 (SC). The court noted that in terms of section 24 of the Supreme Court Act, judgments of the Supreme Court are executed as if they were judgments of the courts a quo, and when the Sheriff executes a Supreme Court order, it is executed as if it is a High Court judgment. Regarding the request for punitive costs, the court noted that an applicant cannot be punished for not honouring a commitment to vacate where the respondent neither responded to nor granted the requested indulgence, and that an applicant cannot be punished for perceived improper conduct of another occupant who filed a separate constitutional application.

This case clarifies the scope and application of Rule 71(14) of the High Court Rules 2021 in Zimbabwe, establishing that the protection against eviction and the right to apply for postponement or suspension of eviction only applies where a dwelling has been attached in execution pursuant to a writ of execution against immovable property. It distinguishes between ordinary ejectment pursuant to a writ of ejectment and ejectment following attachment of a dwelling in execution. The case also addresses the relationship between the High Court and Supreme Court in the context of execution, confirming that High Court supervision of execution does not amount to impermissible interference with Supreme Court orders.