Godfrey Chindomu and Nomusa Chindomu and Global Horizon (Private) Limited v FMC Finance (Private) Limited and Sheriff of the High Court

The parties entered into a deed of settlement on 19 October 2021 whereby the applicants undertook to pay a capital debt of USD142,392.54 plus 18% monthly interest by 31 December 2021 in three instalments. The applicants defaulted, and on 11 November 2021, the first respondent issued a provisional sentence summons. A default judgment was entered on 1 December 2021 ordering the applicants to pay jointly and severally USD142,392.54 with 18% monthly interest plus 25% monthly penalty from 1 October 2021. The applicants' rescission application (HC 7268/21) was dismissed on 13 December 2022. Their Supreme Court appeal application (SC 36/23) was struck off with costs for being premised on positive falsehood. On 5 June 2023, the applicants proposed another payment plan which they failed to honor. A writ of execution was issued on 23 November 2023, and the Sheriff attached the immovable property (Stand 12904, Salisbury Township) on 22 May 2024. The applicants then filed this application on 5 June 2024 seeking suspension of the sale in execution under rule 71(14) and (15) of the High Court Rules, 2021.

• Whether the applicants satisfied the jurisdictional requirements under rule 71(14), (15) and (18) of the High Court Rules, 2021 for suspension of sale in execution
• Whether the applicants and their family would suffer 'great hardship' if the property was sold in execution
• Whether the applicants made a reasonable offer to settle the judgment debt
• Whether there were other good grounds for suspending the sale in execution
• Whether costs on a legal practitioner and client scale were warranted

The application for suspension of sale in execution was dismissed with costs on a legal practitioner and client scale.

For an application under rule 71(14), (15) and (18) of the High Court Rules, 2021 to succeed in suspending a sale in execution of a dwelling, the judgment debtor must prove: (1) occupation of the dwelling by the debtor or family; (2) that great hardship (meaning homelessness or destitution, not ordinary inconvenience of relocation) will result from the sale; and (3) either (a) a reasonable offer to settle the debt (one that realistically can liquidate the debt within reasonable time and is bona fide, demonstrated by actual payments), or (b) need for reasonable time to find alternative accommodation, or (c) some other good ground. The rule provides an exception to the general principle that judgment creditors are entitled to execute their judgments, and must not be used by recalcitrant debtors to evade payment. Interests of extended family members and adult employed children, sentimental value, and lifestyle preferences are irrelevant to the inquiry. A history of broken payment promises demonstrates lack of bona fides and renders new offers unreasonable.

The court observed that: (1) An order of costs standing alone, without a taxed bill of costs, does not create a legal obligation to pay and cannot ground a preliminary objection based on non-payment; (2) While a respondent can raise preliminary objections in a rule 71(14) application, where objections are intertwined with merits they should be assessed in that context; (3) Building plans or medical evidence would be required to substantiate claims that a property was structurally modified for medical needs; (4) A bona fide litigant offering instalments would commence payments upon filing the application or even before, not wait until the hearing; (5) Offering property as security to one creditor while claiming it should be protected from another creditor's execution is contradictory and undermines hardship claims; (6) Participation by the judgment debtor company in proceedings by individual sureties to prevent execution may indicate collusion and abuse of process.

This judgment clarifies the strict application of rule 71(14)-(18) of the High Court Rules, 2021 regarding suspension of execution sales of dwellings in Zimbabwe. It establishes that: (1) 'Great hardship' requires proof of homelessness or destitution, not mere inconvenience or sentimental attachment; (2) Extended family interests and lifestyle preferences are irrelevant to the hardship inquiry; (3) A 'reasonable offer' must have realistic prospects of liquidating the debt within reasonable time and must be bona fide (demonstrated by actual payments); (4) Repeated failures to honor settlement agreements indicate lack of good faith; (5) The rule is an exception to the general principle that judgment creditors are entitled to execute, and should not provide shelter to recalcitrant debtors seeking to evade payment. The case also demonstrates when punitive costs on a legal practitioner-client scale are appropriate - where conduct is objectionable, vexatious, and amounts to abuse of court process.