In 2012, the applicant purchased Stand 1970 Nketa Township, Bulawayo, from the 1st respondent for US$15,000.00, which was paid in full in January 2012. The applicant was granted vacant possession and has resided there with his family since. When the applicant attempted to transfer the property into his name in 2012, he discovered it was encumbered by a mortgage bond to a bank for sums exceeding the purchase price - a fact not disclosed by the 1st respondent at the time of sale. The applicant instituted proceedings under HC1496/12, and on 26 September 2013, Makonese J granted summary judgment under HC2566/12, ordering the 1st respondent to clear the encumbrances and sign transfer papers within 10 days, failing which he was to pay US$15,000.00 plus interest. The applicant attempted to execute the judgment by attaching Stand 2810 Famona, Bulawayo, but this was challenged by Movite Properties (Pvt) Ltd around 2016 and the property was removed from judicial execution. Attempts to attach the 1st respondent's Mercedes-Benz were also frustrated through interpleader proceedings. The applicant, who had relocated to South Africa, filed this application on 26 July 2024 to revive the 2013 judgment.
The application for revival of the judgment granted under HC 2566/12 was granted as prayed for, with costs on an ordinary scale.
Under common law in Zimbabwe, a judgment becomes superannuated and loses its executability after three years if no steps have been taken to enforce it. A superannuated judgment may be revived upon application if: (a) the judgment debt remains outstanding; (b) the judgment specifies the amount; (c) there is reasonable explanation for the delay in enforcing the judgment; and (d) the order will be of benefit to the applicant. A legal practitioner may only depose to an affidavit on behalf of a client in exceptional circumstances where the facts are within their personal knowledge and relate to procedural matters; facts not within personal knowledge or which amount to hearsay are inadmissible. Superannuation does not extinguish the debt but means the judgment requires formal revival to become executable again.
The court observed that it is generally undesirable for legal practitioners to depose to affidavits on behalf of clients, and even where permissible in exceptional procedural circumstances, this route should be taken sparingly. The court noted that the doctrine of superannuation does not mean the underlying debt is extinguished or prescribed; it simply means the judgment is too old to use but can be brought back to life through formal application for revival, which is a continuation of the original proceedings.
This case provides important guidance on two areas of Zimbabwean civil procedure: (1) the circumstances in which legal practitioners may properly depose to affidavits on behalf of clients, reaffirming that even in procedural matters, facts must be within the deponent's personal knowledge and not amount to hearsay; and (2) the application of the doctrine of superannuation of judgments, clarifying that judgments superannuate after three years in Zimbabwe and establishing that reasonable explanations for delay, including the judgment debtor's resistance to execution, can justify revival. The case also clarifies that while a writ issued before superannuation remains in force, a party may still seek revival to enforce alternative remedies contained in the original judgment.