Machiwenyika v Chingwaru and 2 Others (818 of 2022) [2022] ZWHHC 818 (16 November 2022)

1 HH 818-22 HC 5879/22 REF: HC 5810/21 WATSON MACHIWENYIKA versus MARTIN CHINGWARU and KUDAKWASHE TAKAWIRA and SHERIFF OF THE HIGH COURT OF ZIMBABWE HIGH COURT OF ZIMBABWE BACHI-MZAWAZI J HARARE, 27 October & 16 November 2022 Opposed Application MM Ndebele, for the applicant MS Musemburi, for the 1st & 2nd respondents BACHI-MZAWAZI J: [1] Applicant has brought two combined applications which ordinarily should be filed separately. These are, a chamber application for condonation for the late filing of an application for the suspension of sale in execution of a dwelling and the actual application which has been brought in terms of r 71(14) which speaks to the suspension of the sale in execution of a dwelling. [2] Notably, this is an opposed application not a chamber application. The reasons advanced for bringing this application in this form is that, an initial chamber application for suspension was done a day out of time. There was need to seek condonation for that late filing to have the operating bar removed. Hence this dual application to address both reliefs in one sitting. [3] At the onset, the respondents vehemently, opposed the joint application procedure and the impropriety of not going the chamber application route as dictated by the rules. At the hearing, the parties found each other and consented to the granting of condonation and the format of the application. [4] In addition, they urged the court to proceed on the basis of the papers and submissions on record without any further additions. That being so, the court sought clarifications on certain HH 818-22 HC 5879/22 REF: HC 5810/21 aspects. Particularly, the current status of the bitumen machine which had been made executable by an order of this court. [5] Without further ado, the application for condonation was granted, commendably, by consent as the root of the matter had to be addressed. [6] Unique, as the format maybe I find nothing in the rules prohibiting the same although not specifically provided for. It is one of those rare instances when the rules through oversight or omission do not regulate certain processes. For expediency and the interests of justice in the judicious exercise of my discretion, I find nothing amiss for the application to proceed as is. In any event, r 58(13) of the 2021 High Court Rules permits the court to deal with any application before it irrespective of form. Accordingly, I will proceed to the merits of the application. [7] Briefly, the facts are that, through a botched immovable property sale transaction, applicant owed the respondent money to the tune of US$25 000 dollars. After several failed attempts to have the amount paid and the matter settled out of court, a Deed of Settlement was entered into. Follow up efforts to have the debt honoured in terms of the deed also failed. This led the respondents to seek a default judgment premised on the Deed of Settlement. [8] On 12 January, 2022 in case HC 5810/21, a default order was granted specifically making a bitumen emulsion machine executable. The sheriff, armed with a writ of execution issued pursuant to the default judgment, proceeded to attach some off the applicant’s movables and the said executable immovable property, after again failed concerted efforts to settle. [9] It is the respondent’s submission that, the Sheriff filed a nulla boena, return after failing to find movables sufficient to satisfy the debt, and a letter indicating that the bitumen machine although, located had been forfeited by the State due to non-payment of customs duty by the applicant. [10] Applicant counter argued that, the machine was never attached, as there was no written communication made to the applicant of the need to pay the duty and the subsequent forfeiture, by the relevant Customs and Revenue Authorities. The applicant also refuted that he has not made good storage fees owed to the freighters as claimed by the respondents. [11] Once again, on the faith of the return from the Sheriff and a litany of abortive negotiations, a writ of execution was issued by the Registrar of the High Court, at Harare, on 22 August 2022, placing under attachment, applicant’s undivided half share in a certain piece of land situate in the District of Salisbury, called Stand 1089, Mabelreign Township, measuring HH 818-22 HC 5879/22 REF: HC 5810/21 947 square metres, held under Deed of Transfer, Number 1963/2013. This double-barrelled application is as a result of the writ of execution aimed in the attachment for sale of the sole family home of the applicant. [12] It is the applicant’s submission that firstly, the above mentioned, court order by CHINAMORA J, made specific mention of the bitumen machine. As far as he is concerned, the machine is still in existence and can satisfy the debt. He argues that, in the absence of official documents from the ZIMRA and or Customs office stating that the machine had been attached. He challenges the averment that the machine was no longer available for attachment as he was never shown any document to that effect. Further, he states that, the onus to provide that evidence lies with the respondents as a letter from the Sheriff asserting the same is not sufficient and was never served with the same. Citing the case, of Astra Industries v Peter Chamburuka, SCC 21/2012, they argue that he who alleges must prove. [13] Additionally, applicant states that his averment is supported by a letter which he wrote through his Legal Counsel, of record to the Freighters, seeking clarification on the status of the bitumen machine. He thus, asserted that, a recent physical visit at the premises where the machine is stored revealed that, it is still intact and has not been forfeited. As a result, he has already found buyers to purchase the machine. If he is to be given a little more time the machine is going to be sold and the judgment debt satisfied with all attendant costs. [14] Secondly, he propounded that, the immovable property is jointly owned. It is registered in the names of his now late wife. As such, half of the property belongs to a deceased estate and the beneficiaries of his wife’s estate will be prejudiced if the property is attached. Therefore, this in itself makes the house in executable. [15] Thirdly, he adverts that this has been his teen children’s only family home. They have been residing there all their lives. There is no other alternative home. As it where, this will cause undue hardship to the occupants, given the unique circumstances of this case. Lastly, he submits that it will be prejudicial for a property worth US$110 000, to be sold only for the purpose of servicing a debt of US$36 000 which sum, can easily be settled in one swoop by the sale of the bitumen machine. [16] In contradistinction, the respondent contends that, there is a reverse onus on the applicant to rebut the return, in the form of a letter, by the Sheriff. Until such rebuttal is done, they say, the document is unquestionably, prima facie evidence of what it bears. In any event, HH 818-22 HC 5879/22 REF: HC 5810/21 it is the applicant who should provide proof of his payment of storage fees to the freighters and an absolving letter from the Customs department. [17] They argue that in terms of the governing laws, if goods exceed the period of two years, before being cleared by Customs. They become automatically confiscated by the State. I must hasten to say, that no supporting authority or actual statutory provisions were furnished with the court on the above assertion. Respondents, argue that on the basis of the Sheriff’s letter, the bitumen’s machine is no longer available for attachment and sale to satisfy the judgment debt therefore, the house must go. [18] Though, they referred to the patience leverages, and good will they had exhibited throughout the history of this dispute, they did not refute that apart from that letter from the Sheriff and the letter written by the applicant to straighten the position of the existence of the machine, they did not do any physical follow ups nor do they dispute that there is currently a buyer with sale transactions of the machine at an advanced stage. They counteracted that it is another wild goose chase by the applicants as illustrated by the previous modus operandi meant to delay and frustrate the payment of the judgment debt. [19] Of note, nothing was submitted by the respondents in response to the joint and deceased estate issue. It remains uncontested. [20] On the aspect of hardships, relying on the case of, Masendeke v African Building 2002(1) ZLR 69, respondents controvert that, the applicant’s envisaged hardship, is ordinary, as his family will not be made homeless or destitute. They posit that, the evaluated price of their dwelling, gives them enough money to discharge their debt, with accrued taxes and interest living them with sufficient cash to buy a decent replacement home. Therefore, the property must be sold. [21] In addressing the merits, the starting point is the rule governing applications of this nature. The spirit behind and the nobility of this rule cannot be overemphasised or underplayed. It is to protect the family home from sales in execution arising out of debts. The occupants of a family home are usually the nucleus family. They all have personal rights of occupation, undisturbed enjoyment and use of the family home. Whilst, adults are responsible for their financial decisions and actions it is the rights of the children, the vulnerable and the voiceless that suffers. Hence, the Legislature in its wisdom intervened to safeguard the home in deserving situations despite the fact that when the Sheriff fails to attach immovable property he, at law is sanctioned to procedurally move on to the identifiable immovable property. See, HH 818-22 HC 5879/22 REF: HC 5810/21 Muguti & Muguti v Tianzi Tobbacco Company (Pvt) Ltd & Anor, HH 364/15, Zimbabwe United Passenger Company Limited v Packhorse and The Sheriff of Zimbabwe & Anor, HH 319 of 2016 and Welli-Well (Private) Limited v Malvern Imbayago & Anor, SC 85/20. [22] With this hindsight, r 71(14) of the 2021, High Court Rules, reads: “Without derogation from sub rule (11) or (13), 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 or her, of the notice in terms of sub rule (3) make a chamber application in accordance with sub rule 15 for the postponement or suspension of (a) the sale of the dwelling concerned, or (b) the eviction of the occupants.” In addition, r 71(18) provides: “If on the hearing of an application in terms of rule (14), the judge is satisfied that: (a) The dwelling concerned is occupied by the judgment debtor or his family, and it is likely that he or she or they will suffer great hardship if the dwelling is sold or they are evicted from it as the case may be; or (b) i. The execution debtor has made a reasonable offer to settle the judgment debt; or ii. The occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or iii. Or there are some other ground for postponing or suspending the sale of a dwelling concerned or the eviction of its occupants, as the case may be.” [23] Evidently, the work of the court is well cut out in sub rule 18. What needs to be considered is well spelt out. These inevitably become the issues for determination. [24] That being the case, the first part of the provisions of rule sub rule (18)(a) is incontrovertible. The property subject to this application is the applicant’s home which he shares with his three children. What needs interrogation is whether the family will suffer great hardship if the property is sold? [25] What is meant by ‘great hardship’ has been defined in the case of Masendeke v African Building Society & Anor 2002(1) ZLR 69. The learned, judge noted that the affected family must be in a position to suffer more than ordinary hardship. According to this authority, inconveniences to find an alternative home and the relocation to a different place, or rural home or rented accommodation do not qualify as great hardships but ordinary hardships. In the honourable court’s view, the family of the judgment debtor must have been made homeless or destitute for the hardship to be occasioned to be categorized as ‘great’. [26] Thus, on the faith of this definition, the respondents affirm that the situation of the applicant will be that of ordinary rather than great hardship. They reiterate that, money realised HH 818-22 HC 5879/22 REF: HC 5810/21 from the sale will enable the purchase of another house as well as the settlement of the debt owing. [27] On analysis, each case revolves on its merits. In this case, this dwelling has been the shared family home for the applicant, his children and their deceased matriarch. Thus, apart from being, a place of abode, it carries with it, a lot of memories and is of sentimental value. [28] Inevitably, relocation, living familiar settings, community and environment does have some psychological effects and emotional impact to people in general. Particularly, the orphaned children, in this family, where their educational welfare may be interfered with in terms of proximity and class of schools. A research by Wendy Winer, ‘The emotional Impact of Frequent Moves During Childhood’ 16 October 2017 Publication, reveals the adverse effects of such translocations from a family home on the child‘s future behavioural patterns, with worrisome manifestations, in their adult life. [29] Interestingly, applicant’s children‘s late mother was a medical doctor. The environment in which this property is situate suited their lifestyle. This means, the balance from the amount from a forced sale in execution, after deducting all the expenses may not afford them a similar comfort home. In turn, their accustomed standard of life is bound to plunge down. If the divorce laws recognise the need to maintain the quality and standard of life of the children, at the dissolution of marriage through divorce, then the same should apply in scenarios such as these. [30] Section 7, of the Matrimonial Causes Act [Chapter 5:13] addresses this aspect. Particularly, s (7)(1)(C) which in connection to the distribution of marital property, reads: “the standard of living of the family including the manner any child was being …educated or trained.” [31] It is not only the physical element of hardship, but the emotional and mental aspects, as well that have to be considered. It also is not the parents’ rights alone but those of their offspring against the tenets of the children’s rights and what is in their best interests that should come to the fore. See, Convention on the Rights of Children, CRC, sections 81 of the Constitution of Zimbabwe, Amendment Act number 20 of 2013. [32] In that regard, the cumulative effect of these hardships, in my considered opinion, amounts to great hardships, in the circumstances of this case. From this perspective, the intention of the Legislature, in coming up with such rules is meant to circumvent such harmful effects and consequences. HH 818-22 HC 5879/22 REF: HC 5810/21 [33] The second requirement when the execution debtor has made a reasonable offer to settle the judgment debt. This court is alive to the fact that, there is an order of this court that declared executable the bitumen machine. The order is extant. The averments that have been made that the machine is there and about to be sold have not been countered. It has to be complied with. [34] Ordinarily, there is a rebuttable presumption of the validity of official documents such as the return or letters by the Sheriff as highlighted in Mhandu v Mushore & Ors HH 80/2011, and Afritrade International Limited v ZIMRA SC 3/2021. In this case, there is mention of the existence of a letter from the Sheriff, on the bitumen machine written after a nulla boena return on other movables. This letter has not been produced to support that averment. [35] I am inclined to believe the applicant’s assertions which have not been challenged that after writing a letter to the freighters seeking clarity on the status of the bitumen machine, they physically visited the storage depot and saw the machine. They have since confirmed the existence of the machine and its availability for execution, as per the court order. [36] Had the property been forfeited by the State, in 2020, as advanced by the respondent, it surely should have been sold by now. [37] The court is mindful of the several excuses made by the applicant, but is of the view that he deserves, this one last chance to have the machine sold to satisfy the debt. Nevertheless, I am satisfied that, there is an offer to settle the dispute in terms of the existing court order. In any event, if the sale is not done by a specified period to be determined by this court then the applicant will no longer have any shield of defence. [38] Discernibly, though the money, to be realised as per the evaluation report is a considerable amount, as argued by the respondents. That point should not be examined in isolation. I associate myself with the reasoning by my sister, Judge MUREMBA J, in the case of Masimbe v Rainbow Tourism Group HH 239/16, where-in she stated that, money realised in a forced sale, such as that in execution of a judgment, would hardly be enough to buy a decent home after everything has been done and dusted. I further, take a leaf from her findings that, given the amount of the judgment debt and the total sale price of the forced sale, why sale such a valuable property when the debtor has offered to settle by other reasonable means. [39] In terms of r 71(18)(b)(iii), the court, if not satisfied, that there is great hardship and a reasonable offer to settle the debt, is enjoined to see if there are other grounds for suspending or postponing the sale. Fortunately for the applicant, his circumstances have been well accommodated in either of the first two requirements under this rule. However, the last HH 818-22 HC 5879/22 REF: HC 5810/21 essential requirement is worth exploring and evaluating. It is of utmost importance as it has been canvassed by the applicants but not responded to by the respondent. That alone could have disposed of this matter, but for completeness, the requirements of the other two had to be exhausted. [40] Hence, in casu the attached property due to be sold in execution of a judgment debt, is registered in the joint names of the applicant and his late wife. In terms of property law each of the two co-owners has real rights that are protected by the law. See, Chapeyama v Chapeyama 2000 (2). The joint proprietary rights in marital property were explored in great depth and detail by GWAUNZA DCJ, Ishemunyoro v Ishemunyoro & Ors SC 14/19. [41] Such a property cannot be alienated without taking into account the interests of the joint owners or without the consent of both parties as extrapolated in Masimbe v Rainbow Tourism, Chapeyama v Chapeyama above, and (S)Van de Merwe v Va Wyk 1992 CDC, Masube v Masubeyi 1993 (2) ZLR 36. [42] The applicant submitted that he is still to register his wife’s estate, but that does not stop her share of the joint property from being recognized for the benefit of her estate and its beneficiaries. Guided by the above jurisprudence, the attached immovable, is therefore not subject for attachment. As such the court cannot make any other order other than the final order of suspending the sale. Had it not been for this last point, the court would have given a time frame for the execution and sale of the machine. Further, as this application is in the format of a normal application not an interim as per the concession of the parties, a final order ensues. I find no justification in a punitive award of costs, as had been advocated by the respondents. Accordingly, both applications succeed. In the result it is ordered that: 1. The application for condonation be and is hereby granted. 2. The sale in execution of the dwelling, being an undivided half share in a certain piece of land, situate in the District of Salisbury, called Stand 1089, Mabelreign Township, Measuring 947 square metres. Held under Deed of Transfer Number 1963/2013, which was placed under attachment pursuant to a writ of execution, issued by the Registrar of the High Court, on 22 August 2022, be and is hereby, suspended on condition that the applicant’s property called a bitumen HH 818-22 HC 5879/22 REF: HC 5810/21 emulsion manufacturing plant situate in Freight World, Harare, be sold in execution as per the High Court Order under HC 5810/21 to extinguish the judgment debt. 3. That each party to pay its own costs. Muvhiringi and Associates, for the applicant MS Masemburi Legal Practitioners, for the first & second respondents