Dean Julian Wyngard and Janine Veronica Wyngard v Central Africa Building Society t/a CABS and Sheriff of Zimbabwe N.O.

On 16 December 2011, the applicants guaranteed a loan of US$33,000 advanced by the first respondent (CABS) to Familiar Marketing (Pvt) Ltd. The applicants signed sureties as co-principal debtors and registered a First Surety Mortgage Bond over stand 2885 Bulawayo for US$33,000 plus an additional US$6,000. Familiar Marketing defaulted on the loan, and as at 1 August 2012, the outstanding amount was US$33,000 plus US$4,591 in interest. Summary judgment was obtained against Familiar Marketing on 29 August 2014, and a warrant of execution was issued. The property was placed under judicial attachment by the Sheriff on 3 September 2014. Facing imminent sale in execution, the applicants applied to suspend the sale, arguing that they and five other family members occupied the property and would suffer great hardship if it were sold, as they had no alternative residential property.

• Whether the applicants satisfied the requirements of Order 40 Rule 348 A 5 (e) of the High Court Civil Rules for suspension of sale in execution
• Whether the applicants demonstrated that the occupants would suffer 'great hardship' if the dwelling was sold
• Whether the applicants made a reasonable offer to settle the judgment debt
• Whether the application constituted an abuse of court process

The application was dismissed with costs on an attorney and client scale.

For a court to suspend a sale in execution under Rule 348 A 5 (e), the applicant must satisfy the court that: (1) the dwelling is occupied by the execution debtor or his family; and (2) they will suffer "great hardship" if the dwelling is sold. "Great hardship" means more than ordinary hardship such as inconvenience in finding alternative accommodation - it must result in the execution debtor being rendered homeless or destitute. The applicant must also either: (i) make a reasonable offer to settle the judgment debt; or (ii) show that occupants require reasonable time to find alternative accommodation; or (iii) demonstrate some other good ground for postponement. Mere assertion of hardship without supporting evidence, coupled with failure to make any payment or reasonable offer to settle the debt, is insufficient to justify suspension of execution.

The court observed that the first applicant's involvement was that he gave the Title Deeds for his property to Familiar Marketing to use as collateral for a loan, and he was not the judgment debtor himself. The court noted that "the applicants' promises are nothing but empty promises meant to postpone the day of reckoning" and that there was "no plausible payment plan" and "no genuine desire to settle the debt." The court commented that if there was any serious intention to settle the debt, the applicants or judgment debtor would have made some form of payment toward reduction of the judgment debt, particularly given that judgment was obtained in August 2014 and the application was heard in May 2016.

This case clarifies the strict requirements for suspending a sale in execution under Rule 348 A 5 (e) of the High Court Civil Rules in Zimbabwe. It establishes that applicants must demonstrate "great hardship" beyond ordinary inconvenience, and that mere occupation of a property as one's only home is insufficient without evidence of inability to secure alternative accommodation. The case also demonstrates the court's willingness to impose attorney and client costs where applications are brought as delaying tactics without genuine intent to settle debts or substantive legal grounds.