Elton Mutisi v Old Mutual Life Assurance Company (Private) Limited and Others

Old Mutual sued the applicant Elton Mutisi, alongside Puzey and Payne (Pvt) Ltd (first defendant) and Charles Nhamo Nyambuya (third defendant) for payment of US$334,125.81 as rent arrears following cancellation of a lease agreement. On 10 February 2016, Old Mutual obtained a default judgment against the defendants in HC 12586/15. Pursuant to this judgment, the Sheriff attached the applicant's property, Stand number 20208 Seki Township, on 5 October 2016. The Notice of Attachment gave the applicant ten days to approach the court to request postponement or suspension of the sale. On the tenth day, 19 October 2016, the applicant filed a chamber application for suspension of the sale in terms of Rule 348A(5a) of the High Court Rules. The applicant had also filed a rescission application and sought stay of execution pending determination of that rescission. The record contained multiple payment plans and acknowledgements of debt signed by the applicant, including letters dated 25 January 2016, 30 March 2016, 14 October 2016, and an acknowledgement of debt accepting unpaid rentals of $186,316.74.

• Whether the court should postpone or suspend the sale of the applicant's dwelling under Rule 348A(5e)(b)(iii) on the ground that a rescission application was pending
• Whether the applicant demonstrated prospects of success in the rescission application to justify a stay of execution
• Whether the applicant had prospects of success on the merits of the main matter given his multiple admissions of the debt
• Whether costs on the higher scale were justified

The application was dismissed. The applicant was ordered to pay costs on the ordinary scale.

An application for stay of execution pending a rescission application requires the applicant to demonstrate prospects of success in the rescission application. A rescission application cannot succeed if there are no prospects of successfully defending the main matter on the merits. Where an applicant has repeatedly and formally admitted a debt in writing, including through signed acknowledgements of debt and multiple payment plans, there are no prospects of success in defending the merits of the claim, and consequently no basis for granting a stay of execution or postponement of sale under Rule 348A(5e)(b)(iii).

The court observed that Rule 348A(5e)(a) and (b)(i) must be read together due to the word "and" - meaning that whoever pleads great hardship if the dwelling is sold must also propose a reasonable offer to settle, as it is not enough to just allege great hardship. The court also commented that the spirit behind Rule 348A is to afford judgment debtors the opportunity to come up with payment plans for the debt and not to avoid payment altogether. Regarding costs, the court stated there was no justification for punitive costs where an applicant exercises a right extended by law through the notice of attachment to apply for relief within ten days.

This case clarifies the requirements for obtaining a stay of execution pending a rescission application in Zimbabwean law. It establishes that an applicant seeking to suspend a sale under Rule 348A on the ground that a rescission application is pending must demonstrate prospects of success not only in the rescission application itself, but also on the merits of the underlying matter. The case demonstrates that formal admissions of debt and signed acknowledgements of debt will be fatal to any attempt to defend the merits of a claim, and consequently to any application for rescission or stay of execution. It also provides guidance on when costs on the higher scale are not appropriate, particularly where an applicant exercises a statutory right explicitly provided by the rules.