Sibanda v Yambukai Holdings (Pvt) Ltd. & Anor (HC 8467 of 2016; HH 84 of 2017) [2017] ZWHHC 84 (8 February 2017)

1 HH 84-17 HC 8467/16 SHILLING MAVUMBUKA SIBANDA versus YAMBUKAI HOLDINGS (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE N. O HIGH COURT OFZIMBABWE CHITAPI J HARARE, 22 & 30 September 2016 and 8 February 2017 Chamber application for postponement/suspension of sale in execution B. C. Madambe, for the applicant N. Chimuka, for the 1st respondent CHITAPI J: This is a chamber application filed by the applicant pursuant to order 40 r 348 (5a) of the High Court Rules 1971. In the draft order attached to the application, the applicant seeks an order in the following terms 1. (i) The sale in execution of certain piece of land called Stand 7523 Zengeza Township situate in the district of Goromonzi held under deed of Grant Number 5941/1997 be and is hereby postponed to 28th of February, 2017. (ii) Applicant shall be allowed to occupy the premises of a certain piece of land called stand 7523 Zengeza Township situate in the district of Goromonzi held under deed of Grant Number 5941/1997 until the 28th February 2016 (sic). 2. There be no order as to costs. The first respondent opposed the application and filed a notice of opposition with an accompanying affidavit deposed to by its operations director, Eilex Felix Muzvondiwa. On 22 September, 2016 when the application was initially set to be heard, the applicant was granted leave to file an answering affidavit. The matter was then postponed to 30 September, 2016 on which date the parties legal practitioners had no further submissions to make and were content that the application be determined on the papers filed of record. HH 84-17 HC 8467/16 An application in terms of order 40 r 348 A (5a) is sui generis. The application is intended to enable the judge where circumstances permit to suspend or postpone the sale of a dwelling house attached in execution of a court judgment. The rule is meant to protect a vulnerable debtor or his family where it is shown that either the debtor or his family will “suffer great hardship’ if the dwelling is either sold or they are evicted therefrom. The powers of the judge in such an application are set out in s 348 (5e). It is convenient to set out ex tenso the provisions of rr 348 A (5a) and 348 (5e). They provide as follows “348 (5a) 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- (a) The sale of the dwelling concerned; or (b) The eviction of its occupants.” 348 (5e) If, on the hearing of an application in terms of subrule 5 (a); the judge is satisfied- (a) that the dwelling house 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 (b) that- (i) (ii) The execution debtor has made a reasonable offer to settle the judgment debt; or The occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or 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 its occupants, subject to such terms and conditions as he may specify.” (iii) I have indicated that the application is sui generis because it presents an example in which the court regulates its own processes. The process of execution consequent upon a judgment of this court is carried out by the Sheriff. By providing for the judge to intervene in the process of execution to consider giving a reprieve to the judgment debtor or his family from suffering immense hardship that may result from execution the aim of the rule is not to defeat the judgment creditor’s rights to enforce his or her judgment. As a general rule therefore, judgment debtors should always bear in mind that where they make application under r 348 (5a) the approach of the judge will be to only delay relief by postponing and/or suspending execution where the situation so demands. The use of the words “great hardship” means that the judge should exercise the discretion to grant temporary relief in exceptional circumstances. See Masendeke v CABS & Anor ZLR 69 in which CHINHENGO J indicated that mere hardship was not sufficient. The learned judge ruled that the hardship to be proven by HH 84-17 HC 8467/16 the applicant had to be more than ordinary hardship. He gave examples of a situation where the applicant had to find alternative accommodation or time to relocate. The hardship envisaged by the rule according to CHINHENGO J had to be such as rendered the applicant destitute or homeless. The proof of great hardship as I have noted above must be coupled with either a reasonable offer of settlement of the judgment debt where a sale is to be postponed or a tender of a reasonable period to vacate the property where a sale has been suspended. The judge’s powers to suspend or postpone a sale can also be motivated where great hardship has been proved by advancing any other ground which is good and satisfactory. The powers of the judge are therefore wide in their scope. The judge should bear in mind the purpose or mischief which the rule was intended to cure which as observed by MATHONSI J in Tasara Mugut and Ottilia Kudzai Muguti v Tianze Tobacco Company (Pvt) Ltd & Anor HH 364/15 was to “provide sanctuary to debtors when attachment of dwelling houses became a serious national problem which was rendering people homeless”. The learned judge also observed as follows “….. The High Court rules went further in r 348 (5a) to provide a judgment debtor who has made a reasonable offer to pay, other than placing reliance on the Housing Fund administered by the Secretary, to approach the court to secure a stay of the sale on condition of the offer.” I observed the r 348 A on stopping a sale to facilitate settlement of claims was introduced by S. I. 80/2000. It has not escaped my attention that whilst MATHONSI J noted that attachment … of dwelling houses had become a national problem when the rule was introduced, the same problem is now obtaining on account of increased loan repayment defaults. It cannot be doubted that the country is going through economic turbulence and melt down with many companies and institutions closing the rendering borrowers jobless and unable to service their financial obligations. Until such time that the economic position of the country improves, the cases for attachment of dwellings to satisfy defaulted obligations and unsatisfied judgments will continue to inundate the courts. The rule has in my observation of recent become relevant and more frequently reverted to by judgment debtors than before. The reprieve given to judgment debtors or “sanctuary” as MATHONSI J refers to the same and as already commented upon is not just there for the giving. The application should in my view be made with a bona fide intention not to prejudice the judgment creditor but to get an opportunity to either settle the court judgment otherwise than through the loss of a dwelling house. The rule is intended as a chance mechanism in terms of which the judge allows the judgment debtor a chance to save his or her dwelling house whilst making good HH 84-17 HC 8467/16 the obligations to the judgment creditor on the judgment which the latter will have obtained in this court. It also gives the judgment debtor a chance to vacate or relocate from the attached property. The application should thus not be used or seen as a mechanism to manipulate the court to give with one hand, that is granting a successful litigant a judgment which remains unsettled and taking away by the other hand or defeating the judgment by denying the judgment creditor the opportunity to successfully enforce the judgment. To this end, the observations by NDOU J, in Media v Homelink (Pvt) Ltd 2011 (2) ZLR 516 H at p 520 D-E holds good and are instructive. The learned judge stated thus: “It has to be noted that as a general rule a creditor who has obtained judgment is entitled to enforce such judgment by levying execution and the court has no jurisdiction to restrain the judgment creditor from enforcing such legal right – Sabena Belgian World Airlines v Vas Elst 1981 (1) SA 1235 T and South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 544. Rule 348A should be viewed as an exception to this general rule.” MAKONI J, following up on the dicta by NDOU J above stated in Cleopas Zwidza & Anor v Elvis Mudoti & Anor HH 349/15: “… the legislature had to intervene in form of R 348A, to provide for the exception to the general rule regarding execution of judgments. The court must therefore balance the interest of the creditor who has a judgment in favour against those of an applicant who might suffer great hardship if there home were to be sold.” In my view however, it might be placing the judgment and judgment debtor on par to refer to the balancing of interests. I do not think that a balance of interests can ever be achieved between the two parties. The rule is clearly tilted in favour of the judgment debtor who is given a chance to delay making good his or her obligations on the judgment debt or being given time to vacate a dwelling which he has lawfully lost through execution. In my judgment, the court of judge should not unduly prejudice the rights of the judgment creditor and where the judgment debtor offers to settle otherwise than by losing his or her dwelling, the offer as the rule provides must be reasonable and I would as I have intimidated add that the offer must be bona fide. The judgment debtor must place before the judge all relevant facts as would enable the judge to make an informed finding on the reasonableness or otherwise of the offer. Turning to the facts of the present case, the applicant averred that he was not aware that this court had granted judgment against him in favour of the first respondent in case No. HC 513/2012 prior to attachment. He attached to his founding affidavit a copy of the court order granted by TAGU J on 19 October, 2015 in default which order he purports to have HH 84-17 HC 8467/16 become aware of on 25 August, 2016 when he read an advertisement for the sale of his property in the Sunday Mail newspaper following advice by his unnamed nephew who had seen the advertisement. The applicant avers that he immediately instructed his legal practitioners to “do a quick investigation of the circumstances surrounding” case No. HC 513/12. It was then that the applicant’s legal practitioners retrieved copies of TAGU J’s order, the writ of execution and the second respondents notice of attachment. The legal practitioners could not access the court records and peruse the pleadings in time to be able to appraise themselves of the basis on which the court order was granted. The sale of the applicant’s property was scheduled for 26 August, 2016 which is the day that this application was filed. In short therefore, the applicant deposed that he was not aware of the judgment granted against him until he saw or was made aware of the advertisement for the sale of his property. The applicant averred that the attached property was a residential premises where he resided with his seven children whose names he listed in the founding affidavit. He averred that he has been resident at the property since 1996 when he purchased the same together with the seven children. He deposed that his family would be destitute if the property was allowed to be sold on 26 August, 2016. The applicant also averred that he did not have alternative readily available accommodation. He offered to settle the debt and deposed in para 20 of his founding affidavit as follows: “…. I would want to settle the debt which I was ordered to pay as I believe that it arises from the fact that I offered my immovable (sic) as security for a debt of to (sic) one of my friends in the past.” The applicant requested for a moratorium or suspension of the sale of the property for six months to allow him to investigate and ascertain how judgment came to be granted against him and to settle the debt if satisfied with the default judgment. He pledged or undertook to settle the debt by the last day of February, 2017. In offering to settle the debt by the end of February, 2017, the applicant was assured of the availability of the necessary funds which would be provided by his three sons who had agreed to avail the funds. The undertaking to settle was predicated on the applicant not having any objections to the judgment debt. In para 24 of his application, the applicant stated: “Wherefore I submit that it is just and proper to suspend the sale in execution to enable me to either have the default judgment granted against me set aside or to enable me to settle the judgment debt if indeed I have no legal basis to seeking the setting aside of the default judgment in issue.” HH 84-17 HC 8467/16 The first respondent in its opposing affidavit raised a point in limine that the applicant had deliberately lied that he became aware of the judgment against him on 25 August, 2016. The first respondent’s representative averred that the applicant sent his son to the offices of the legal practitioners of the first respondent “sometime” in June, 2016 and that the son had alleged that the applicant was too old to attend in person where after the son was advised to cause the applicant to tender a written payment proposal. The son reportedly never returned with the written proposal for settlement. The first respondent’s director further averred that the applicant had attended at the first respondent’s officers on an unspecified date between July and August 2016 to negotiate the setting aside of the sale in execution of the applicants immovable property. The applicant reportedly advised the first respondent that a person called Chikokoko had assumed the debt. This person reportedly denied having taken over the debt when approached by the first respondent. On the basis of the alleged attendances on the first respondents’ legal practitioners and on the first respondents’ officers, the firs respondents’ director averred that the applicant was lying by trying to pull wool over the eyes of the judge. The director reasoned that the applicant had sat on his laurels and waited for the day of reckoning thus abusing the court process. The first respondent therefore sought a dismissal of the applicants’ application on the basis of the preliminary objection with costs on the legal practitioner and client scale. In the answering affidavit, the applicant denied that he ever sent his son to the first respondent’s legal practitioners’ offices as alleged. He denied appointing any agent or proxy to represent him in the matter. He stated that he would have taken legal recourse earlier had he been aware of the judgment any earlier than 25 August, 2016. He stated that none of his sons had professed having attended on the first respondent’s legal practitioner. The applicant noted that the first respondent did not name the son in question or the legal practitioner who allegedly attended on the son. The applicant also denied ever visiting the first respondent’s offices as alleged to negotiate a settlement. He pointed out that his health condition was chronic and he would have used his legal practitioners to act for him given his health challenges. I need to mention herein that when I initially presided over this application in chambers on 22 September, 2016 the applicant was being helped to walk and balance himself by his son. He looked very ill and could hardly sit on the sofa unsupported without falling over. I took the applicant’s legal practitioner to task to justify why he had brought such a sick person to court and whether it HH 84-17 HC 8467/16 was intended to buy the judge’s sympathy. The legal practitioner sought to justify the applicant’s attendance on the basis that since the application was in the nature of a chamber application, the attendance of the applicant was compulsory. The condition of the applicant unnerved everyone who was in attendance. To compound the situation, the applicant was a very old man judging from the naked eye. The courts are peoples’ courts. Judicial officers are human beings who also have a human heart. There was certainly no need for the applicant’s counsel to suffer a visibly very ill and unfit person to take apart in legal proceedings to attend before the judge. The applicant’s legal practitioner should have applied to the judge to excuse the applicant since the application was in any event to be argued on the papers. The first respondents’ counsel agreed that the applicant was clearly very sick. Both counsel at the very least could have agreed between them that the applicant could be excused before walking a very sick person into the judge’s chambers as if what the judge had to decide would depend upon or be influenced by the applicant’s condition. I took a dim view of both legal practitioners in failing to feel sympathy for the applicant who looked more suited to a hospital admission than an appearance in court. The people of Zimbabwe upon whom judicial authority derives do not expect that judicial officers would not have a human heart by calling upon or requiring seriously ill or unfit persons to appear before them to be judged. To cause a person who clearly cannot help himself to take part in court proceedings where other actors are fit amounts to taking away that person’s inherent dignity in public which is a breach of s 51 of the constitution which protects as a fundamental human right, every person’s inherent dignity in private and public life and to have the right respected and protected. Having made the above comments however, the unfortunate dragging of the applicant to appear before me and the sympathy I felt should not and will not affect my judgement. The exercise of judicial authority is guided by the principle of equality of every person before the law and other principles set out in s 165 of the Constitution. My judgment will therefore be based on the facts, the evidence and the application of the law to the same. In respect of the necessity for the further attendance of the person of the applicant, I directed with the consent of both counsels for the parties that the applicant be excused from further attendance. The application was postponed to 30 September, 2016 for the filing of the answering affidavit with leave being granted to counsel if they wished to, to file heads of argument. Reverting to the papers filed of record and the point in limine, the first respondent’s averments on the alleged attendance by the applicant’s son at the first respondent’s legal HH 84-17 HC 8467/16 practitioners officers constitute inadmissible hearsay evidence. The first respondent’s director does not state in his affidavit that he witnessed the attendance of the applicant’s sons as he alleges. The hearsay evidence having been ruled inadmissible does not therefore assist the court. The first respondent’s legal practitioner is expected to appreciate basic rules of evidence. What the first respondent’s director was alleging as having taken place and the exchanges allegedly made at the legal practitioner’s officer between the applicant’s son and whoever he spoke to would be first hand hearsay and admissible had the legal practitioner who attended on the son deposed to an affidavit to this effect. The first respondent’s legal practitioner who drafted the opposing papers should have been mindful of the relevant provisions of the Civil Evidence Act, [Chapter 8:01] with particular reference to s 26 thereof. I am therefore unable to hold that the applicant sent his son as alleged and I uphold the applicant’s denial. The celebrated rule of evidence that he who alleges must prove should always guide practitioners and parties when drafting court pleadings and preparing for court unless the matter at play is one in which an exception to the rule has been provided for as in the case of presumptions. In respect of the allegation that the applicant visited the first respondents offices to negotiate the setting aside of the sale in execution, an allegation denied by the applicant, the first respondent’s allegations are not supported by evidence to back up the assertion. The first respondent’s director did not give the date of the visit. He does not state that he personally attended on the applicant. The court is faced with a mere allegation which has been denied. There is no way that I can be satisfied even on a balance of probabilities that the visit which the applicant denies took place. I have often indicated to counsel that the law of evidence is a mine field which detonates in the face of the inexperienced or uninitiated pleader. This is what again obtains with respect to the second part of the point in limine, namely, the alleged visit by the applicant to the first respondents offices to negotiate a setting aside of the sale. It is a mere allegation without flesh. Now that the applicant denies the visit, no court properly directed to decide the issue on evidence would hold that the first respondent adduced sufficient evidence to prove the allegation on a balance of probabilities. It is a fact that a corporate entity like the first respondent acts through living human beings. There were no reasons advanced as to why the first respondent’s official who allegedly attended on the applicant did not depose to an affidavit with details of the alleged meeting. I am equally unable to hold in the light of the applicant’s denial that the applicant attended on the first respondent as alleged. HH 84-17 HC 8467/16 It follows therefore that where a party makes bald assertions not backed by evidence and the same are denied by the party against whom they are made, such bald allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value. See generally Zimbank Ltd v Ndlovu SC 61/2004. If one alleges a fact, he must prove it. In casu the applicant having failed to prove its assertions in support of the point in limine, I accordingly dismiss it and will deal with the application on the merits. The applicant averred in his affidavit that he will suffer great hardship because the property intended to be sold is the only dwelling he has and he resides in the property with his family. The applicant further stated that, due to the fact that he only become aware of the proposed sale of the property on the day before the sale, he did not have other readily available accommodation. The applicant has not sought to distance himself from any obligations arising from the judgment. On the contrary, the applicant has demonstrated bona fides in that he has offered to settle the debt subject to his being given time to investigate how judgment came to be granted against him in default. The first respondent has argued that the applicant will not suffer great hardship because he can easily find alternative accommodation which is easily available. The issue in my view is not about the availability of rented accommodation. The issue is about being offered time to find such accommodation in the light of the applicant not having known about the sale of the property beforehand. The first respondent’s assertion that the applicant by standing surety for the debt incurred by his co-defendant should have foreseen that the house could be sold if the principal debtor failed to repay the loan is not the crux of an application under r 348 (5a). The rule pre-supposes that there is in existence, a judgment by the court which must be satisfied. The judge’s intervention as already explained is limited to suspending or postponing execution subject to the judgment debtor putting forward a reasonable alternative method of settling the judgment or for some other good reason which the judge may deem good and sufficient including where applicable, granting the judgment debtor time to find alternative accommodation. In my view, whilst accommodation may be readily available to rent, it would be unreasonable to expect the applicant to secure such accommodation on short notice. Had my finding been that I had dismissed the applicant’s assertion that he was not aware of the judgment and notice of attachment, I would have been persuaded to consider the time lapse between the attachment and the making of this application in determining whether or not the applicant is entitled to the relief he seeks. I am HH 84-17 HC 8467/16 satisfied that given the applicant’s assertions as to when he became aware of the court judgment and the attachment and sale of his property, the applicant will suffer great hardship if I do not intervene as he cannot be expected to make alternative arrangements to avert the great hardship at short time. The finding that great hardship will ensue if the court does not intervene is not the end of the matter. The applicant must in addition propose a reasonable offer to settle the judgment debt or satisfy the judge that the occupants should be allowed a reasonable period to find alternative accommodation or allege and demonstrate other good ground to justify the postponement and suspension of the sale. The applicant has not relied on one ground in respect to the second requirement. He has offered to settle the judgment by 28 February, 2017, albeit such offer being conditional to his satisfying himself that there are no grounds to impugn the judgment. The applicant has also averred he does not have readily available accommodation to move into with his family. The first respondent did not dispute this. It was content to state that its representative could not comment on whether or not the attached property was the applicant’s only owned property. By refusing to comment, it means that the first respondent could not refute the applicant’s assertion. This therefore left the assertion uncontroverted. The applicant also averred that a postponement or suspension of the sale would allow time for his legal practitioners to investigate the circumstances surrounding how default judgment against applicant had been obtained. The first respondent’s counsel cited the judgments of this court in African Corporation of Zimbabwe Limited v PWC Motors (Pvt) Ltd & Others HH 123/13 and Industrial Equity Ltd v Walker 1996 (1) ZLR 269 H at 308 C. The purport of the two judgments and indeed the ratio decidendii as I understood them are to the effect that, obligations must be given effect to by the courts and that borrowers of money should carry their cross, so to speak, and not manufacture all manner of defences which have no merit to escape paying legitimate claims made against them. The cases are therefore distinguishable both on their facts and law from the issues for determination here. I have already indicated that r 348 (5a) presents a window for a judgment debtor to get a reprieve from execution of an immovable dwelling where it has been attached and is to be sold. The rule is not concerned with defendants who manufacture defences to escape from lawful obligations. The first respondent’s counsel in his heads of argument also argued that the applicant did not have a defence on the merits. This again is not an issue for my determination. I do not need to determine whether or not the applicant has a defence were he to challenge or seek a rescission of the default judgment granted against him and consequent HH 84-17 HC 8467/16 upon which execution was then levied. Such enquiry goes beyond the scope of this application and what is contemplated by the provisions of r 348 (5a). It is not necessary to repeat myself on what the rule is intended to achieve. I have sufficiently in my view ventilated the area. In passing I wish to observe that a determination on whether the applicants has made a case for the relief provided in r 348 (5a) will invariably turn out to be a value judgment. As such, a judges’ judgment cannot be subject to a truth or falsehood assessment. For example, what amounts to great hardship as envisaged in r 348 (5a) is a circumstantial conclusion which the judge will make after considering all the surrounding facts available. Therefore, whilst accepting the reasoning of CHINHENGO J in Masendeke v CABS (supra) that the hardship envisaged in the rule should not be just ordinary hardship, a determination of what amounts to ordinary hardship as opposed to great hardship is in my view still a circumstantial consideration on which a value judgment has to be passed. It follows that precedent will not always be helpful, not because precedent should not guide the judge but because it will be unlikely that cases will abound in which facts or more aptly the circumstances of the judgment debtor or applicant who alleges great hardship are similar. I have upon a careful consideration of the facts, circumstances and arguments presented before me been satisfied that the interests of justice will be served by granting the application in the following terms: 1. The sale in execution of the applicant’s immovable property described as stand 7523 Zengeza Township held under Deed of Grant No. 5941/1997, pursuant to the writ of execution issued in case No. HC 513/12 be and is hereby suspended until 28 February, 2017. 2. The applicant and his family shall continue to possess and exercise and enjoy their rights of occupation of the property until 28 February, 017. 3. The applicant shall by 28 Februarys, 2017 have satisfied the judgment granted against him in case No. HC 513/12 if the said judgment shall not have been rescinded or set aside by this court. 4. Should the applicant have instituted proceedings to rescind or set aside the judgment and the same not having been determined by 28 February, 2017, the applicant is granted leave on notice to the 1st and 2nd respondents to make a chamber application for extension of the postponement of the sale which application the judge may refuse or grant on such terms and conditions as the judge may consider appropriate. 5. There be no order as to costs. HH 84-17 HC 8467/16 Guwuriro & Associates, applicant’s legal practitioners Mawere Sibanda, respondent’s legal practitioners