Irene Chiwara v Borrowdale Brook Home Owners Association and Sheriff of the High Court

The applicant sought suspension of the sale in execution of her dwelling house (Stand 449 Borrowdale Brook Township measuring 1,435 square metres) under Order 40 r 348A(5a) of the High Court Rules, 1971. The attachment was made in execution of a judgment granted in Case No. HC 3681/17 for payment of US$14,494 plus interest, continuing levies of US$200 per month from May 2017, and costs on attorney-client scale. The applicant was unemployed and the dwelling was occupied by her and her family members. She had previously entered a deed of settlement offering to pay US$1,500 per month towards the debt and costs but failed to honor it. She subsequently offered US$300 per month, which the first respondent rejected. The property was the only residence the applicant owned.

• Whether the applicant satisfied the requirements of Order 40 r 348A(5a) for suspension of sale in execution of a dwelling
• Whether the applicant and her family would suffer 'great hardship' if the dwelling was sold
• Whether the applicant's settlement offer was reasonable in terms of r 348A(5e)(b)(i)
• Whether there existed other good grounds for suspending the sale under r 348A(5e)(b)(iii)
• How to balance the efficacy of judicial decisions against the prevention of extreme suffering to execution debtors

The sale of the immovable property was suspended on the following conditions: (1) The applicant must pay US$500 per month towards settlement of the judgment debt and costs from 31 May 2019 to 30 April 2020; (2) Thereafter, from 31 May 2020, the applicant must pay US$750 per month until the debt is paid in full; (3) The second respondent (Sheriff) must suspend the sale pending compliance with these terms. There was no order as to costs.

For an application under Order 40 r 348A(5a) to succeed in suspending the sale of a dwelling: (1) The dwelling must be occupied by the execution debtor or their family and they must be likely to suffer 'great hardship' (meaning severe or extraordinary hardship, not ordinary hardship) if the dwelling is sold; (2) The execution debtor must either make a reasonable offer to settle the judgment debt, or the occupants require a reasonable period to find other accommodation, or there must be some other good ground for suspension; (3) The reasonableness of a settlement offer must be judged by reference to both its impact on the judgment debt and the applicant's means; (4) It would be unreasonable to sanction a proposal that does not reduce the debt at all (making the judgment hollow) or to impose payment terms the applicant cannot meet (negating the rule's purpose); (5) Courts must strike a balance between guaranteeing the efficacy of judicial decisions and preventing extreme suffering, considering prevailing economic realities including that auction sales rarely fetch market prices.

ZHOU J observed that the provision of r 348A(5a) reflects the 'human face' of the law, which some would prefer to refer to as 'justice', recognizing that behind legal designations like 'plaintiff' and 'defendant' are human beings and not particles of matter. The judge noted that prevailing economic realities place cases in different contexts, distinguishing this case from Clopas Zwidza & Anor v Elvis Mudoti & Anor HH 349-15 where the economy was stable and one would likely realize the value of proceeds after a forced sale. The court observed that it is in the applicant's best interest to liquidate the debt, suggesting that given time she should be able to make arrangements to increase payment amounts.

This case demonstrates the Zimbabwean judiciary's approach to balancing the enforcement of judgments against the constitutional and human rights implications of rendering families homeless through execution sales. It illustrates the 'human face' of the law and the application of r 348A(5a) in the context of economic hardship. The judgment emphasizes that courts must consider prevailing economic realities when assessing whether property sales would cause 'great hardship' and when evaluating the reasonableness of settlement offers. It confirms that 'great hardship' means severe or extraordinary hardship beyond ordinary hardship, and that this assessment must be context-specific, taking into account economic volatility and the likelihood that forced sales will not realize market value.