Court name
Harare High Court
Case number
HC 4775 of 2015

Mhindu & Anor v Engen Petroleum Zimbabwe (Pvt) Ltd & Anor (HC 4775 of 2015) [2015] ZWHHC 502 (02 June 2015);

Law report citations
Media neutral citation
[2015] ZWHHC 502
Coram
Mathonsi J

1

HH 502-15

HC 4775/15

 

MARK MHINDU

and

TOTAL SOLUTIONS (PVT) LTD

versus

ENGEN PETROLEUM ZIMABWE (PVT) LTD

and

THE SHERIFF OF ZIMBABWE

 

 

 

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 3 June 2015

 

 

 

Urgent Chamber Application

 

 

 

Ms SZ Takawira, for the applicants

Ms RT Matsika, for the first respondent

Second respondent in default

 

            MATHONSI J: This is an application made in terms of r 348 A of the High Court of Zimbabwe Rules, 1971 for the postponement until 31 December 2016, which is exactly 1 year 6 months away, of the sale in execution of a dwelling known as 3 Clearwater Road, Norton also known as the Remainder of Plot 3 of Clearwater of subdivision A of Riverside in Norton to enable the applicants to liquidate the judgment debt on certain terms that they have set out.

            The applicants would like to be allowed to sell a Daf 85 Horse registration number ACO 7190 and its trailer registration number ACF 6459 and channel proceeds towards repayment of the debt. Thereafter they would like to pay the balance in monthly instalments of $1 000-00 with effect from 31 July 2015 until 31 December 2016.

            The first applicant states in his founding affidavit that the property that has been attached is a dwelling which he occupies with his wife and 4 minor children who will suffer undue hardship should the dwelling be sold in that the minor children (including Gregory Mhindu who is aged 8 years) will be writing examinations in a few months time. His wife “has not been feeling well ---- and is therefore not fitted for the rigors, stresses and disturbances of moving.” As he has shown a commitment to pay the debt, the sale should be postponed aforesaid.

            In HC 10862/13 the first respondent sued Petroport (Pvt) Ltd as the first defendant, the second applicant herein as the second defendant and the Registrar of Deeds, as the third defendant for, inter alia payment of the sum of $82 049,55 for petroleum products delivered. The second applicant herein was sued as a surety and co-principal debtor who had also mortgaged its property the Remainder of Plot 3 of Clearwater of Subdivision A of Riverside Measuring 182 747 hectares held by it under Deed of Transfer No 8096/2003. The first applicant is not a party to that action and, as it turns out, he is not the owner of the dwelling in question.

            Judgment was entered against the second applicant and  those 2 others on 19 March 2014. A writ was issued on 10 December 2014 but it is not clear when it was executed. The applicants did not say either and have not even stated when the dwelling is due to be sold in execution.

            This application has been made in terms of r 348 A (5a) which provides:

“Without derogation from subrules (3) to (5) where the dwelling that has been attached is occupied by the execution debtor or members of his family, the execution debtor may, within ten days after the service upon him of the notice in terms of rule 347, make a chamber application in accordance with subrule (5b) for the postponement or suspension of –

 

  1. the sale of the dwelling concerned; or

 

  1. the eviction of the occupants.”

 

So the application must be made by the judgment debtor and within 10 days after service of the notice of attachment by the Sheriff.

In terms of subrule (5e) of r 348 A:

“If, on the hearing of an application in terms subrule (5a), the judge is satisfied-

 

  1. that the dwelling concerned is occupied by the execution debtor or his family and it is likely that he or they will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and

 

  1. that –

 

  1. the execution debtor has made a reasonable offer to settle the judgment debt; or
  2. the occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or
  3. there is some other good ground for postponing or suspending the sale of the dwelling concerned or the eviction of its occupants, as the case may be;

 the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of the occupants, subject to such terms and conditions as he may specify.”

It has been stated that the requirements set out in subrule (5e) are disjunctive even though in r 348 A (5a) they are linked by “and.” If one requirement is eminently met then the fact that the other has not been fully met does not prevent the applicant from obtaining an order for postponement or suspension: Masendeke v Central Africa Building Society and Another 2003 (1) ZLR 65 (H).

In order to satisfy the requirement it is not enough that the execution debtor or, his family will suffer hardship should the dwelling be sold. The judge must be satisfied that the hardship is great and more than the ordinary one as would be suffered as a result of deprivation of a place of residence. The inconvenience of having to look for alternative accommodation or relocate to rented accommodation is not the type of hardship contemplated by that rule. It must be such that it results in homelessness or destitution.

It occurs to me that the inconvenience of writing examinations from another location or a wife who does not want the rigors, stresses and disturbance of moving cannot meet the requirement of great hardship. That is the normal consequence of inability to settle debts and incidence of execution of a dwelling.

I must also be satisfied that the debtor has made a reasonable offer to settle the judgment debt or that there is some other good ground to postpone or suspend the sale. I think not. Liability arose in August 2012 and judgment was entered on 19 March 2014, almost 2 years later. The applicant has not liquidated the debt in over another 15 months but would like to be afforded the luxury of selling a lorry and then paying the debt over a further period of 1 year 6 months. This is in respect of property which was mortgaged as security for a debt.

There can be no justice in such an arrangement. Even the application of equity would not favour such an arrangement where a debt which was due within 7 days would remain unpaid in over 4 years just to make a debtor and his family comfortable.

I conclude therefore that the applicant has not satisfied the requirements of the rules providing for the postponement or suspension of the sale of a dwelling. In fact the application itself is spectacularly without merit.

The application is accordingly dismissed with costs.

 

Takawira Law Chambers, applicant’s legal practitioners

Wintertons, 1st respondent’s legal practitioners