MASIMBE v RAINBOW TOURISM GROUP

HIGH COURT, HARARE

[Urgent Chamber Application HH 158-16]

February 4 and 24, 2016

MUREMBA J

Practice and procedure – Rule  –  Suspension of sale in execution of dwelling house  –  Requirements.

The applicant sought the suspension of the sale of her dwelling on the grounds that she would suffer great hardship.

Held, that for an execution debtor to succeed in an application of this nature it is imperative in every case that he shows, firstly, that there is occupation of the dwelling by him or his family, and secondly, that he or his family will likely suffer great hardship. This is the first requirement the execution debtor has to satisfy or meet in terms of O 40 r 348A (5e)(a) of the High Court Rules, 1971. After satisfying the first requirement, the second requirement that he ought to satisfy is in terms of r 348A (5e)(b) under subparagraph (i) by making a reasonable offer to pay the debt or under subparagraph (ii) by showing that he or his family needs a reasonable period to find alternative accommodation or under subparagraph (iii) by advancing some other good ground which persuades the judge to find in his favour. Rule 348A (5e)(a) and r 348A (5e)(b) should be read conjunctively because of the use of the word “and” instead of “or” between them.

Cases cited:

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

Zwidza & Anor v Mudoti & Anor HH 349-15 (unreported), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 32 r 244, O 40 r 348A (5a), (5c)(b), (5e)(a) and (b), (6)

Applicant in person

C Malaba, for the respondent

MUREMBA J:

On 21 January 2015 the respondent obtained judgment in its favour against the applicant under case number HC 1548/13. The judgment is for the payment of US$ 35 873 with interest at the rate of five per cent per annum from 1 January 2013, and legal costs in the sum of US$ 2 500. The judgment debt led to the attachment of the applicant’s dwelling stand situated in Mt Pleasant Harare. The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of US$ 1 000 per month. The following is the relief that she is asking for:

“Terms of final order sought

That you show cause to this Honourable court why a final order should not be made in the following terms:

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above and if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

Pending determination of this matter, the Applicant is granted the following relief:

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling

2. A copy of this order shall be served on the respondent’s legal practitioners.”

The history of the case is as follows. The applicant was in the employment of the respondent as Human Resources Director for 12 years before 2010. In 2010 she sought to leave the respondent’s employment due to harsh economic conditions that were prevailing at the time. On 10 September 2010 she made an application to the respondent for a voluntary retrenchment package which was being offered by the respondent which she found attractive. In response, the respondent persuaded her to stay with a staff retention proposal of a housing loan of US$ 120 000. The same offer was extended to the Chief Executive Officer and the Finance Director. According to the housing loan offer, the title deeds of the house that she would purchase would be surrendered to the respondent as security. The repayment of the loan was going to be upon separation, in other words, upon the applicant’s termination of employment. During her tenure she was only supposed to pay interest of US$ 600 per month. Upon termination of employment the applicant was supposed to repay the loan using her terminal benefits. The applicant was persuaded to stay by the housing loan offer and took the loan on 23 October 2010. This staff retention proposal was signed by the Chief Executive Officer, C Mutasa and the Board Chairman, PF Timba.

The applicant stated that in 2012, there was a change of management at Chairman and CEO levels of the respondent. She said that relations were not good between herself and them. She further stated that it became clear to her that the employment relationship could not continue. On 17 December 2012 she tendered her resignation from employment in acknowledgement of the breakdown of the relationship. She said that upon her resignation her terminal benefits went towards settling the loan, but it was not extinguished. It was only reduced from US$ 67 124 to US$ 35 172. She said that she failed to agree with the respondent’s new managers as to how the balance was to be settled. As a result, litigation ensued resulting in the parties signing a deed of settlement in December 2014, and the respondent obtaining judgment which gave rise to the attachment of her dwelling.

The applicant stated that if the house is sold her family will likely suffer great hardship. She said that she has always acknowledged her indebtedness to the respondent and has always intended to pay the debt, but because she was not employed from January 2013 to June 2015 she was unable to pay anything. She said that now that she is in employment she is making an offer to pay off the debt at the rate of US$ 1 000 per month which offer she says is reasonable. The applicant attached proof to show that from July 2015 when she took up employment with Pan African Mining (Pvt) Ltd she had only managed to pay US$ 4 000 to the respondent. The amount was not disputed by the respondent.

Procedure

Although the applicant does not state in her application that she is making this application in terms of O 40 r 348A (5a) of the High Court Rules, 1971 (“the Rules”), I do agree with the respondent that looking at the nature of the application it is indeed being made in terms of O 40 r 348A (5a) of the Rules which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family. The execution debtor is empowered to make a chamber application for the postponement or suspension of the sale of the dwelling or eviction of its occupants. The application should be made within 10 days of notice of attachment of the dwelling. Once such an application is made the Registrar of this court shall submit the chamber application to a judge who shall consider the papers forthwith under r 244 of the Rules. In terms of O 40 r 348A (6) of the Rules, an application made under r 348A (5a) shall be treated as urgent and set down urgently, without delay. However, even if the application is treated urgently, the order that is granted by the court is a final one. This is supported by r 348A (5e) of the Rules which states that if the judge is satisfied that there is good ground for postponing or suspending the sale of the dwelling concerned or postponing or suspending the eviction of the occupants, he may order the postponement or suspension of the sale or eviction subject to terms and conditions he may specify. The rule does not say that the order that is granted is a provisional one. Even the Form 45 upon which this chamber application is made shows that the order which is sought by the applicant is final in nature. The relevant portion of the form reads as follows:

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