Kenneth Schofield v FBC Bank Limited

The applicant, Kenneth Schofield, filed an urgent chamber application on 27 April 2018 seeking suspension of a sale in execution of a dwelling in terms of Rule 348A(5b) of the High Court Rules, 1971. The dwelling had been declared specially executable by a court judgment dated 30 March 2016. The first respondent, FBC Bank Limited, opposed the application and raised preliminary points in limine. The dwelling was subject to a mortgage bond with the first respondent bank. When the applicant defaulted on the loan, the bank sought to execute on the dwelling. The applicant sought to invoke Rule 348A to suspend the sale in execution.

• Whether an application under Rule 348A(5a) can properly be brought as an urgent chamber application or must be brought as a chamber application in Form 45b
• Whether Rule 348A(5a) applies to a dwelling which has been declared by a court order to be specially executable
• Whether procedural irregularities in the application should be condoned
• Whether a court can suspend sale in execution of a mortgaged dwelling declared specially executable

The application was dismissed with costs.

1. An application under Rule 348A(5a) for suspension or postponement of sale in execution of a dwelling must be brought as a chamber application in Form 45b, not as an urgent chamber application. 2. Rule 348A(5a) does not apply to a dwelling which has been declared by a court order to be specially executable. 3. By mortgaging a dwelling as security for a loan, the mortgagor effectively waives the protection otherwise available under Rule 348A. 4. A court cannot declare a dwelling specially executable and then, when executing upon that order, effectively set it aside by declaring the same property not executable under Rule 348A.

The court observed that confusion may have arisen from previous cases treating Rule 348A(5a) applications as urgent chamber applications, specifically referencing Masendeke v Central Africa Building Society and Muguti v Tian Ze Tobacco. The court stated this confusion is "clearly unnecessary" as the rules are clear on the correct procedure. The court also commented that it remained unpersuaded that Masendeke was correctly decided insofar as it ordered suspension of sale in execution of a dwelling declared specially executable by court order. The court noted that allowing mortgagors to invoke Rule 348A in foreclosure proceedings "would amount to home seekers getting mortgages without security."

This case reinforces the established principle in Zimbabwean law that Rule 348A(5a) protection for dwellings does not extend to properties that have been declared specially executable by court order, particularly in mortgage foreclosure situations. It clarifies the correct procedure for bringing applications under Rule 348A(5a) - they must be brought as chamber applications in Form 45b, not as urgent chamber applications. The case emphasizes that mortgagors cannot invoke dwelling protection rules to avoid the consequences of defaulting on mortgages where they have voluntarily provided their dwelling as security. The judgment also demonstrates the court's willingness to exercise discretion to condone procedural irregularities where there is substantial compliance and no prejudice.