The 1st respondent (Charter Properties) had instituted proceedings against Zimbabwe Express Services (Pvt) Ltd (3rd respondent) under HC 15/12 seeking cancellation of a lease agreement, eviction, and payment of arrear rentals. The matter was set for trial on 2-3 July 2015, but the parties negotiated a settlement. On 3 July 2015, the court removed the matter from the roll on the basis that it would be resolved by a deed of settlement dated 3 July 2015, with costs awarded. The deed of settlement was signed by the 1st and 3rd respondents. Subsequently, on 27 November 2015, the 1st respondent caused a writ of execution to be issued, and on 1 December 2015, a notice of seizure was issued against the applicant (Delma Lupepe) personally. The Deputy Sheriff attached household goods and effects at the applicant's residential premises at 4 Bunting Close, Burnside, Bulawayo. The applicant contended that the deed of settlement did not ascribe personal liability to him and that he had only signed as a representative of the 3rd respondent.
1. All writs issued against the applicant in case number HC 75/12 be and are hereby set aside. 2. The attachment of movable assets at 4 Bunting Close, Burnside, Bulawayo by the 2nd respondent and the notice of seizure issued upon such attachment are hereby declared null and void. 3. The 1st respondent is ordered to pay the costs of suit.
An attachment in execution can only be valid where there is a judgment entered against the person whose goods are sought to be attached. Where a writ of execution names one party as defendant but the notice of seizure names a different person, the attachment is not executed in terms of the writ and is invalid. A person who signs an agreement as a representative of a company is not personally liable under that agreement, and the doctrine of privity of contract prevents enforcement against them personally. Order 40 Rule 323 of the High Court Rules, 1971 provides that a writ may only be issued in favor of a person in whose favor judgment has been pronounced.
The court made observations regarding the validity of consent orders and deeds of settlement, distinguishing the case of Riozim Ltd v Diamond Drill (Pvt) Ltd and Another HH-800-15, noting that while that case held that a consent order and deed of settlement constitute an order of court, the dispute in the present case was different and distinguishable. The court also observed that a suretyship cannot survive the expiry of the principal obligation (lease agreement) which it was intended to secure, though this was not the primary basis for the decision.
This case is significant in South African and Zimbabwean jurisprudence for clarifying the strict requirements for valid execution of judgments. It reinforces the principle that execution can only be levied against a person against whom a judgment has been specifically entered. The case also emphasizes the importance of the doctrine of privity of contract, preventing enforcement of contractual obligations against persons who are not parties to the contract. It serves as a warning against improper execution practices and demonstrates the court's willingness to declare attachments null and void where there is a mismatch between the judgment debtor named in the writ and the person against whom execution is actually levied. The case also addresses the survival of suretyships beyond the expiry of principal obligations.