On 29 January 2015, a judgment by consent was granted by Mutema J wherein the applicant, who was a co-principal debtor, pledged his house in Chinhoyi as specially executable security for a debt of $22,000.00. The applicant entered into a payment plan towards the debt but failed to comply with it. Within two years, he had only paid $1,200.00 (effectively $50 per month). The first respondent (Untu Micro-Finance) obtained a writ of execution and the Chinhoyi property was sold, though confirmation of the sale had not been completed at the time of the application. The applicant owned another property in Bulawayo where he lived with his immediate family. The applicant approached the court seeking another chance and proposed yet another payment plan to prevent the finalization of the sale.
The application was dismissed with costs.
A party cannot seek to circumvent or rescind a consent judgment granted by a competent court through indirect means or "through the back door." Where an application is filed out of time in violation of mandatory procedural rules (such as Order 40 Rule 348A(5a) requiring filing within 10 days), and no condonation is sought, the application is not properly before the court. A creditor who has obtained a consent judgment with specially executable property is entitled to proceed with foreclosure and sale where the debtor has materially failed to comply with agreed payment arrangements. A debtor who proposes a payment plan and fails to honor it over an extended period (having paid only $1,200 of $22,000 over 24 months) cannot expect the court to grant further indulgences, particularly where the debtor owns alternative property and will not be rendered destitute.
The court observed that the applicant "has only himself to blame for the sale of his Chinhoyi property," indicating judicial disapproval of the applicant's conduct in failing to honor his payment commitments. The court also noted that the first respondent was correct in characterizing the applicant as "a difficult person to deal with" during the two-year period, suggesting that a creditor's patience and willingness to accommodate further payment arrangements need not be limitless where a debtor has demonstrated bad faith or inability to meet obligations. The court's comment that the application was "ipso facto" dismissed suggests that the lack of merit was self-evident from the facts presented.
This case reinforces several important principles in South African and Zimbabwean civil procedure: (1) the binding nature of consent judgments and orders, which cannot be circumvented through indirect means; (2) the strict application of procedural rules regarding time limits for filing applications, particularly in execution proceedings; (3) the court's discretion to refuse relief where a debtor has demonstrated an inability or unwillingness to honor payment arrangements; and (4) the principle that creditors are entitled to enforce their rights through execution where debtors fail to honor consent judgments. The case also illustrates that the existence of alternative accommodation is relevant when considering whether to grant relief from execution against immovable property.