Scott Chiripamberi and Tendai Chiripambiri v Blue Ridge Spar Trading Limited and The Sheriff of Zimbabwe

The first respondent obtained a court order against the first applicant for a debt of US$171,458.12. The first respondent obtained a writ of execution and instructed the Sheriff to attach the applicants' matrimonial home at Stand 2255 Mabelreign Township, Harare. The first applicant had previously signed an acknowledgment of debt on 4 June 2013, offering to pay US$10,000 per month, which he failed to honor. Summons were issued in March 2014, and the parties entered into a deed of settlement where the first applicant offered to pay US$8,000 initially and US$10,000 per month thereafter, but he only paid the initial US$8,000. The applicants then applied for suspension or postponement of the sale of their dwelling, offering to pay US$1,000 per month. Only the first applicant deposed to the founding affidavit; the second applicant filed no affidavit. The property purchased in 2011 was allegedly the family's sole immovable property.

• Whether the second applicant had locus standi to institute proceedings under Rule 348A(5a) of the High Court Rules, 1971, when she was not a party to the original debt proceedings
• Whether the first applicant satisfied the requirements under Rule 348A(5e) for suspension or postponement of the sale of the dwelling
• Whether the first applicant demonstrated that his family would suffer great hardship if execution proceeded
• Whether the offer of US$1,000 per month constituted a reasonable offer for suspension of the sale

The application was dismissed with costs.

Under Rule 348A(5e) of the High Court Rules, 1971, for a court to suspend or postpone the sale of a dwelling, the execution debtor must: (1) satisfy the court that he or his family is in occupation of the dwelling and will suffer great hardship if execution proceeds, with detailed explanation of how such hardship will be occasioned; and (2) make a reasonable offer for suspension of the sale. Only the execution debtor named in the original proceedings has locus standi to bring an application under Rule 348A(5a). A mere assertion of hardship without supporting details is insufficient. An offer that would take an unreasonably long period to liquidate the debt (over 13 years in this case) is not a reasonable offer. The court may consider the debtor's history of honoring previous payment agreements in assessing the genuineness of the application.

The court noted that the first respondent's defense that the attached property was purchased using proceeds of the debt was not a valid point, as this was not proven when the first respondent obtained its order and the present application was not the appropriate platform to determine that issue. The court also observed that the pending proceedings (HC 8451/16) challenging the acknowledgment of debt under duress and undue influence were not the basis for bringing the application and were irrelevant, as an application must stand on its founding affidavit and not on new issues raised in the answering affidavit. The court commented that the first applicant appeared to live a luxurious life and drive nice cars while refusing to pay his debts.

This case clarifies the application of Rule 348A(5) of the High Court Rules, 1971, regarding suspension or postponement of sales in execution of dwellings. It establishes that execution debtors must provide detailed evidence of great hardship, not merely assert it, and must make reasonable offers considering the debt amount and their payment history. The case emphasizes that courts will scrutinize the credibility and trustworthiness of debtors based on their past conduct in honoring payment agreements. It also confirms that only the execution debtor has locus standi to bring such applications, not other family members who were not parties to the original debt proceedings.