Phillipa Ann Coumbis v Afrasia Bank Zimbabwe (In liquidation) and Ronald John Coumbis and The Sheriff of Zimbabwe N.O

The applicant and second respondent were formerly married and jointly owned an immovable property at No 6 Northwood Rise Mt Pleasant Harare. On 4 September 2014, the High Court terminated their marriage and ordered the applicant to transfer her undivided one-half share in the property to the second respondent. The applicant appealed this decision to the Supreme Court (SC 448/14), which was pending at the time of this application. The first respondent held a surety mortgage bond over the entire property and obtained a default judgment against the second respondent. Pursuant to that judgment, the first respondent caused the property to be attached. The applicant approached the court on an urgent basis seeking a stay of the sale in execution, arguing that the property was subject to litigation in the Supreme Court where she was challenging the distribution of matrimonial assets and seeking full ownership. The second respondent did not oppose the application and confirmed he had applied for rescission of the default judgment and stay of execution. He also averred that the principal debt had been rejected by the Master of High Court in liquidation proceedings.

• Whether the application was urgent and properly brought on an urgent basis
• Whether leave to sue the first respondent (a company in liquidation) under section 213 of the Companies Act was properly sought and granted
• Whether the applicant had locus standi to seek a stay of execution against property in which she had personal rights but the first respondent held real rights
• Whether a stay of execution should be granted where the property was res litigiosa (subject of litigation) but the creditor held real rights over the property
• Whether personal rights to property anticipated in pending litigation can prevail over existing real rights held by a judgment creditor

The application was dismissed with costs awarded to the first respondent.

Real rights held by a judgment creditor (including a mortgage bondholder) will prevail over personal rights, even where the third party claiming personal rights has a pending claim in litigation. A judgment creditor is entitled to attach and sell in execution the property of a debtor notwithstanding that a third party has a personal right against such debtor to the ownership or possession of such property, even where that right arose prior to the attachment or the judgment creditor's cause of action, and even where the judgment creditor had notice when the attachment was made. The fact that property is res litigiosa does not preclude it from being alienated or dealt with in execution proceedings. In urgent applications involving a company in liquidation, an applicant may properly combine an application for leave to sue under section 213(a) of the Companies Act with the substantive urgent application, as requiring separate sequential applications would defeat the urgency. An extant judgment must be enforced regardless of other pending proceedings challenging the underlying debt.

The court noted with approval the principle from Herbastein and Van Winsen that in urgent applications, the effect of the rules is that an applicant is allowed, depending on the circumstances, to make his own rules which should as far as practicable accord with the normal rules of court. The court observed that if the applicant had not combined the leave to sue application with the urgent application, by the time the leave application would be determined, the relief sought in the urgent application would be a brutum fulmen (an ineffective act). The court also observed that the first respondent, in attacking the procedure adopted by the applicant, overlooked dealing with the merits of the application for leave to sue, which led the court to grant that application. The court commented that the Master's rejection of the claim in liquidation proceedings and the dismissal of the first respondent's claim in HH 273/16 were "neither here nor there" given that the judgment being executed upon was extant.

This case is significant in Zimbabwean property and execution law as it clarifies the principle that real rights held by a judgment creditor (particularly a mortgage bondholder) will prevail over personal rights, even where those personal rights are the subject of pending litigation in a superior court. The judgment reinforces the principle that a judgment creditor is entitled to attach and sell in execution the property of a debtor notwithstanding that a third party has a personal right to the property which arose prior to the attachment. The case also provides useful guidance on procedural matters in urgent applications, particularly regarding the combination of applications for leave to sue a company in liquidation with the substantive urgent application, affirming that substance should prevail over form in urgent matters. It demonstrates the practical application of the hierarchy between real and personal rights in the context of matrimonial property disputes and execution proceedings.