Miriam Mirirai v The Sheriff of the High Court and Others

The Applicant filed a chamber application for an interdict on 25 July 2025 seeking to prevent the Sheriff (first Respondent) from executing a writ of execution against movable property at house number 1211 Mupamombe, Ingezi Kadoma. The writ was obtained by the second Respondent (Mupamombe Housing Cooperative Society Ltd) against the third Respondent (Financial Mirirai). The Applicant claimed she was the custodian of minor children born between her and the third Respondent, from whom she separated on 5 August 2019. She stated that on 28 June 2025, the second Respondent's members showed her a writ of attachment indicating intention to attach movable property at her residence. She claimed the third Respondent did not reside at the property and none of the property belonged to him. She attached a Separation Agreement. The second Respondent opposed the application, raising points in limine regarding defects in the Founding Affidavit and that the application sought to interdict lawful activities. On the hearing date (8 September 2025), the Applicant, first Respondent and third Respondent were all in default. Only counsel for the second Respondent appeared.

• Whether an interdict can be granted against conduct that is prima facie lawful
• Whether the Founding Affidavit was defective due to discrepancies between the place of signing (Harare) and commissioning (Kadoma)
• Whether the Applicant established the requirements for an interdict: (a) a clear right, (b) irreparable harm actually committed or reasonably apprehended, and (c) absence of an alternative remedy
• Whether the Applicant should have pursued an interpleader remedy under Rule 63 of the High Court Rules SI 202/2021
• Whether the application was frivolous and vexatious warranting punitive costs

Application dismissed with costs on a legal practitioner and client scale against the Applicant

The binding legal principles established are: (1) An interdict cannot be granted against conduct that is prima facie lawful, including the execution of a valid writ of execution issued by the Registrar of the High Court; (2) For an affidavit to be validly commissioned, the deponent and the commissioner of oaths must be in the same geographical location for the signing and commissioning to occur contemporaneously - an affidavit signed in one location and commissioned in another is defective; (3) An applicant seeking an interdict must establish: (a) a clear right, (b) irreparable harm actually committed or reasonably apprehended, and (c) the absence of an alternative remedy that is adequate in the circumstances; (4) Rule 63 of the High Court Rules SI 202/2021 provides an interpleader remedy for third parties claiming ownership of property subject to execution, and where such remedy is available, an interdict application is inappropriate; (5) An application is frivolous and vexatious, warranting punitive costs on a legal practitioner and client scale, where defects are pointed out but not rectified and the applicant fails to appear at the hearing, demonstrating lack of seriousness and an apparent intention to delay proceedings.

The court observed that the Sheriff proceeded against the third Respondent's movable property and instead of filing an interpleader, the Applicant filed the present application. The court noted that the matter gave the impression that the Applicant was not genuine and was just seeking to delay the inevitable. The court also noted, based on submissions by counsel for the second Respondent, that the court had been inundated with a number of matters involving the third Respondent, suggesting a pattern of conduct. The court referenced the definition from Rodgers v Rodgers and Anor 2002 (1) ZLR 330 that "frivolous and vexatious" connotes an action characterised by lack of seriousness. The court also observed that the Separation Agreement attached did not have the parties' addresses inserted and had the notation "[insert address]" after each party's name, indicating incomplete documentation.

This case is significant in Zimbabwean civil procedure law as it reinforces several important principles: (1) the formal requirements for properly commissioned affidavits, particularly that the deponent and commissioner of oaths must be in the same geographical location for the acts to occur contemporaneously; (2) that interdicts cannot be granted against prima facie lawful conduct, including valid writs of execution; (3) the strict requirements for obtaining an interdict (clear right, irreparable harm, no alternative remedy); (4) that interpleader proceedings under Rule 63 provide the appropriate remedy for third parties claiming ownership of property subject to execution; and (5) the circumstances warranting punitive costs on a legal practitioner and client scale for frivolous and vexatious applications. The case serves as a cautionary example of the consequences of filing defective applications and failing to pursue proper remedies.