Tasariroona Makwara Makasi v ZB Building Society

The first respondent obtained a judgment against the applicant on 18 June 2014 in HC 3919/14 for payment of $16,066.84 plus interest at 15% per annum compounded monthly. The judgment remained unsatisfied and unchallenged. When a writ of execution was served and the applicant's property was attached on 1 August 2014, the applicant's attorneys sought a stay of execution to enable payment plan negotiations. The first respondent agreed only on condition that arrears of $3,028.87 be cleared in full. The applicant failed to clear the arrears, counter-offered to increase monthly installments from $370 to $875, but failed to pay even one such installment. When the first respondent proceeded with execution and the Sheriff removed the applicant's movable property on 21 October 2014, the applicant filed an urgent application seeking to interdict the execution, arguing that since the debt was secured by a first mortgage bond over immovable property, attachment of movable property was unlawful.

• Whether a judgment creditor holding a mortgage bond over immovable property is restricted to executing only against the immovable property and prohibited from attaching movable property
• Whether a court can grant an interdict staying execution of a valid, extant, and unsatisfied judgment
• Whether the applicant satisfied the requirements for an interim interdict
• Whether execution can be stayed on humanitarian grounds

The application was dismissed with costs on a legal practitioner and client scale awarded to the first respondent.

A judgment creditor holding a mortgage bond over immovable property is entitled to execute against any property of the judgment debtor, including movable property, in order to satisfy the judgment debt. The existence of a mortgage bond over immovable property does not restrict the creditor to executing only against that immovable property. A court will not grant an interdict to stay execution of a valid, extant, and unchallenged judgment that has not been satisfied. In terms of Rule 326 of the High Court Rules, it is desirable that execution proceeds first against movable property before immovable property. A court will not stay execution on humanitarian grounds alone.

The court observed that the application was "hopelessly without merit" and "should not have been made at all," warranting costs on a punitive legal practitioner and client scale. The court noted that while the applicant made reference to arrears of $3,028.87, this had nothing to do with his full indebtedness and he would only have been entitled to pay in that format if he had not defaulted. The court commented that "rocket science is not required" for the proposition that it is desirable for a judgment creditor to proceed first against movable property before immovable property.

This case clarifies important principles regarding execution of judgments in Zimbabwean law, particularly where the debt is secured by a mortgage bond. It confirms that a judgment creditor is not restricted to executing only against property over which security is held, but may execute against any property of the judgment debtor. It also establishes that courts will not interfere with lawful execution of valid, extant judgments on humanitarian or sympathetic grounds. The case reinforces the principle that Rule 326 of the High Court Rules actually contemplates execution against movable property first before proceeding to immovable property.