MAKUPE v ZB BANK LTD

HIGH COURT, HARARE

[Chamber Application HH 257-16]

April 20 and 27, 2016

ZHOU J

Words and phrases  –  Interpretation  –  Interpretation of “and” or “or” under High Court Rules Order 40, rule 348A.

Applicant brought an application for the postponement of the sale in execution of a dwelling. He had previously made assurances that he had not honoured, and the proposal that he placed before the court was far less than the proposal he had made four years previously. In dismissing the application as an abuse of court process:

Held, that rules of court refer to “great hardship”, not just hardship. An allegation that the applicant and his family will suffer mere hardship is insufficient to found relief. Not every hardship warrants the invocation of the procedure provided for in O 40 r 348A of the High Court Rules, 1971 (RGN 1047 of 1971). The hardship must be great, by which is meant that it must be extraordinary. That is so because ordinary hardship is an inevitable inconvenience of any process of execution by which a person’s property is attached and sold.

Held, further, that in construing subrule (5e) of r 348A, the “golden rule” for construing all written engagements is that the words used must be given their ordinary grammatical meaning unless there are reasons for departing from that meaning. Thus the word “and” may be read as “or” and the word “or” as “and” if the context renders it absolutely necessary. In the context of subrule (5e), no absurdity or repugnancy or inconsistency results from giving the word “and” its ordinary conjunctive meaning. There would be an injustice if a judgment debtor would be allowed to escape the consequences of execution by merely proving the likelihood of great hardship without making a reasonable offer to settle the debt or satisfying any of the other requirements disjunctively provided for in subparagraphs (ii) and (iii) of para (b) of subrule (5e). Such an approach would drown the efficacy of judicial execution of judgments in a sea of biased equity. The judgment in Masendeke v Central Africa Building Society & Anor 2003 (1) ZLR 65 (H) at 68H-69B departed from.

Cases cited:

B Tengwe Estates (Pvt) Ltd v Minister of Lands & Anor 2002 (2) ZLR 137 (H), referred to

Granary Investments (Pvt) Ltd v Pianim 2013 (1) ZLR 518 (H), referred to

Hofrho (Pvt) Ltd & Anor v UDC Ltd 2001 (2) ZLR 58 (S), referred to

Masendeke v Central Africa Building Society & Anor 2003 (1) ZLR 65 (H), departed from

Nexbak Investments (Pvt) Ltd & Anor v Global Electrical Manufacturers (Pvt) Ltd & Anor 2009 (2) ZLR 270 (S), referred to

Sibanda v Nyathi & Ors 2009 (2) ZLR 171 (H), referred to

TM Supermarkets (Pvt) Ltd v Chadcombe Properties (Pvt) Ltd 2010 (1) ZLR 196 (H), referred to

Zimbabwe Revenue Authority & Anor v Murowa Diamonds (Pvt) Ltd 2009 (2) ZLR 213 (S), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 40 r 348A (5a), (5e)

Books cited:

Achebe Chinua Things Fall Apart (Penguin Classics, London, 2006)

Kellaway EA Principles of Legal Interpretation: Statutes, Contracts & Wills (1st edn, Butterworths, Durban, 1995)

IEG Musimbe, for the applicant

O Mutero, for the respondent

ZHOU J:

“Unoka was, of course, a debtor, and he owed every neighbour some money, from a few cowries to quite substantial amounts. ...and they swore never to lend him any more money because he never paid back. But Unoka was such a man that he always succeeded in borrowing more, and piling up his debts.” Chinua Achebe Things Fall Apart (Penguin Classics, London, 2006)

The applicant’s case, as set out in his affidavits, characteristically resembles that of the eccentric character called Unoka in the celebrated book by Chinua Achebe Things Fall Apart (Penguin Classics, London, 2006). The attitude of the applicant in no less measure typifies that of Unoka. In the novel, one day a creditor by the name of Okoye came to ask for repayment of a debt owed to him. The conversation went as follows:

“‘Look at that wall,’ [Unoka] said, pointing at the far wall of his hut, which was rubbed with red earth so that it shone. ‘Look at those lines of chalk,’ and Okoye saw groups of short perpendicular lines drawn in chalk. There were five groups, and the smallest group had ten lines. Unoka had a sense of the dramatic and so he allowed a pause, in which he took a pinch of snuff and sneezed noisily, and then he continued: ‘Each group there represents a debt to someone, and each stroke is one hundred cowries. You see, I owe that man a thousand cowries. But he has not come to wake me up in the morning for it. I shall pay you, but not today. Our elders say that the sun will shine on those who stand before it shines on those who kneel under them. I shall pay my big debts first.’ And he took another pinch of snuff, as if that was paying the big debts first.” Things Fall Apart, pp 7-8.

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