This
is an application for an order suspending the sale in execution of
Stand 2885, Bulawayo.
The
property was placed under judicial attachment by the Sheriff of the
High Court on 3rd
September 2014. The grounds for the application are that the first
applicant and five other occupants of the property would suffer great
hardship in the event of the property being sold. The applicants
contend that if the property is sold all the occupants would be
destitute as they have no alternative residential property.
The
application is opposed by the respondents who contend that the
application is an abuse of court process and ought to be dismissed on
an attorney and client scale.
At
the hearing of this matter, the first applicant appeared in person
and persisted in his argument that the court should suspend the sale
in execution to afford him an opportunity to make arrangements for
the settlement of the debt.
Factual
background
On
or about 16th
December 2011, at the special instance and request of the first
respondent, the applicants guaranteed a loan in terms of which the
first respondent lent and advanced to Familiar Marketing (Pvt) Ltd a
sum of US$33,000=. The Loan Agreement was reduced to writing and
signed by both parties. In compliance with the agreement, the
applicants signed sureties and co-principal debtors for the due and
proper fulfillment of the obligations cast upon Familiar Marketing
(Pvt) Ltd and acknowledging that any indebtedness by Familiar
Marketing (Pvt) Ltd to the first respondent would be binding on them
and would be their indebtedness. The applicants are legally jointly
liable with Familiar Marketing (Pvt) Ltd for the sums due to the
first respondent inclusive of interest, collection commission and
legal costs as well as all costs of execution.
In
further compliance with the Loan Agreement, a First Surety Mortgage
Bond was registered for the sum of US$33,000= plus additional
US$6,000= over certain piece of land situate in the district of
Bulawayo being Stand 2885 of Bulawayo Township. It is a material term
of the Surety Bond that the applicants accepted that any costs
incurred in the recalling of the Bond will be payable on the attorney
and client scale as well as collection commission and that the Bond
would be recalled in the event of Familiar Marketing (Pvt) Ltd
defaulting in its obligations. As things turned out, Familiar
Marketing (Pvt) Ltd has failed to repay the loan and the applicants
have done nothing to settle the outstanding amounts. As at 1st
August 2012 the total sum outstanding was US$33,000= plus interest in
the sum of US$4,591=. Summary judgment was obtained against Familiar
Marketing (Pvt) Ltd on 29th
August 2014, and, subsequently, a warrant of execution was issued.
Faced
with the imminent sale of the mortgaged property, the applicant filed
this application in terms of Order 40 Rule 348A(5)(b) of the High
Court Civil Rules.
At
the hearing of this matter, the first applicant conceded that he had
not paid anything towards the reduction of the judgment debt. He
further conceded that he had no means to settle the debt as he was
unemployed. He averred that if given time he could make arrangements
with “his family” to settle the debt.
What
is clear is that the applicants' promises are nothing but empty
promises meant to postpone the day of reckoning. No plausible payment
plan was put forward by the applicants and there is no genuine desire
to settle the debt.
Whether
applicants satisfied the requirements of Rule 348A(5)(e)
Rule
348A(5)(e) provides as follows:
“If,
on the hearing of an application in terms of sub-rule (5a), the judge
is satisfied –
(a)
That the dwelling concerned is occupied by the execution debtor or
his family and it is likely that he will suffer great hardship if the
dwelling is sold or they are evicted from it, as the case may be; and
(b)
That –
(i)
The
execution debtor had 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)
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, 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.”..,.
It
is clear that in terms of Rule 348A(5)(e) of the High Court Rules,
the sale of immovable property can be suspended if the court is
satisfied that the dwelling concerned is occupied by the execution
debtor or his family and that it is likely that he or they will
suffer great hardship if the dwelling house is sold. The applicant
has failed, in my view, to meet the requirements of this Rule. In the
first instance, the applicant merely avers that the dwelling house is
occupied by the applicant's family members, namely:
(a)
Neville Wyngard.
(b)
Jean Wyngard.
(c)
Calvin Wyngard.
(d)
Logan Wyngard.
(e)
Lorrel Wyngard.
It
is contended that the occupants of the property will suffer great
hardship because the said dwelling is their permanent home.
The
first applicant, Dean Julian Wyngard, deposed to an affidavit in
support of this application and contends that the rest of the
applicants are family members. The first
applicant
is not the judgement debtor. His involvement in this matter is that
he gave the title deeds for his property to Familiar Marketing (Pvt)
Ltd to use as collateral for a loan. There is no dispute that the
loan remains unpaid to date and that the debtor and the applicants
have not placed before the court any credible payment plan. The first
respondent has therefore been left clinging to a mortgage bond which
cannot be enforced. The rest of the occupants mentioned in the first
applicant's founding affidavit have not stated, under oath, how the
sale of the property would affect them. The fact that the applicants
may be calling the property their only home does not mean that they
cannot secure alternative accommodation. The applicants have simply
parroted the provisions of sub-rule 5(e)(a) without taking the court
into their confidence by stating what great hardships would befall
those occupants if the sale was not suspended.
See
Masendeke
v Central Africa Building Society and Another
2003 (1) ZLR 65 (H) where CHINHENGO J stated…, as follows:-
“It
is not enough that the execution debtor or his family will suffer
hardship if the dwelling is sold. The judge must be satisfied that
the hardship is great. In my view, the hardship must be more than the
ordinary hardship which persons deprived of their place of residence
ordinarily suffer such as the attendant inconveniences in finding and
paying for alternative accommodation or the need to relocate to
another residential place such as a rural home or rented
accommodation. The hardship must be great in that it results in the
execution debtor
being rendered homeless or destitute.”
The
applicants have not alleged that they cannot secure alternative
accommodation.
In
his submissions in court, the first applicant stated that he needed
more time to settle the debt. It has not escaped the court's
attention that judgment was obtained against the debtor in August
2014, and that since then no attempt has been made to settle the
debt. Further, in terms of the subrule (5e)(b) of Rule 348A, the
court can also suspend the sale if the applicants have made a
reasonable offer to settle the judgment debt. The applicants have
failed to make any reasonable offer to settle the debt and the only
conclusion is that the application was filed to buy time.
I
entertain no doubt that the application is an abuse of court process.
If there was any serious intention to settle the debt, the applicants
or the judgment debtor would have made some form of payment towards
reduction of the judgment debt. It is evident that the applicants
have no case on the merits and that what they seek is to use the
court to secure an extension of time to pay.
In
the result, the application is dismissed with costs on an attorney
and client scale.
