2
HH 275-25
HCH 3176/23
WINNIE CHISOMA
versus
KINGSLEY MTETWA
HIGH COURT OF ZIMBABWE
MAXWELL J
HARARE, 4 February 2025 & 25 April 2025
Opposed Matter: Revival of Judgment
S T Muzorori, for the Applicant
H Mwomba, for the Respondent
MAXWELL J: The parties in this matter are divorced. It was a term of a consent Paper that a property known as Unit 14 Dainfem 16 Extension, Gauteng, South Africa be sold on or before 31 December 2017 and all the net proceeds thereof accrue to the applicant. The parties agreed that;
“6.4(6) In the event that the property is not sold by the 31st of December 2017, the Plaintiff pay to the defendant the difference between R 1900 000.00 (One million nine hundred thousand South African Rands) being the current value of the property and the outstanding mortgage amount and other liabilities as at 12th January 2017.”
The Consent Paper was made a part of the Order granted on 10 August 2017. The house was not sold within the stipulated timeline and applicant did not institute proceedings to enforce the alternative that the parties had agreed upon. She stated that after valuations and deductions of the mortgage and other related expenses, it was agreed that the net value of the property was six hundred and fifty one thousand South Africa Rands (R 651 000.00) which was supposed to be paid to her. Applicant’s legal Practitioners engaged Respondent’s legal practitioners. According to her as the parties had been married for about nineteen years (19) when Respondent presented what seemed like plausible reasons for delay in settling what was due to her, she would grant him indulgence. She indicated that the idea of an out of court settlement appealed to her as Respondent would assist her every time she was in dire financial distress. After several attempts to collect the money she was owed, she reached a conclusion that Respondent was not willing to pay her. She therefore approached the court for the revival of the court order under case No HCH 1762/17 so that it can be executed upon. Applicant also stated that of the amount of R 651 000.00 due to her, Respondent had paid R30 000.00 to her leaving a balance of R621 000.00. She prayed for the revival of the judgment under HC 1762/17.
Respondent opposed the application. He stated in the opposing affidavit that neither the court order nor the Amended Consent Paper speak of the sum of ZAR 651 000.00 being due and payable to applicant. He submitted that the order is incapable of revival in terms of r 69 of the High Court Rules as it does not specify the amount which should be subject of the revival. Further, that the parties compromised their rights and obligations flowing from the court order and Amended Consent Paper, as the parties varied the terms of the court order and Amended Consent Paper by consent. In his view applicant cannot elect to revive certain aspects of a compromised and/or varied court order. He prayed for the dismissal of the application with costs on an attorney and client scale.
In the Answering Affidavit, applicant reiterated that the outstanding amount is R 631 00.00 and that the amount of R651 00.00 was agreed by the parties applicant disputed that the order was varied in any way.
Rule 69(1) of the High Court Rules 2021 provides as follows;
“69 (1) The process for the execution of any judgment for the payment of money, for the delivery upon the goods or premises, or ejectment, shall be by writ of execution signed by the registrar and addressed to the Sheriff, in accordance with one or other of forms Nos 32 to 39.
(2)…….
(3) No writ of execution shall be issued after the judgment has become superannuated, unless the said judgment has first been revived, but a writ of execution once issued shall remain in force until such time as the judgment has been finalized.”
In the case of Nzara and Others v Kashumba N.O & Others HH 151/16 it was confirmed that the common law position on the superannuation of judgments prevails in Zimbabwe, that is, a judgment superannuates after three (3) years. In the case of Independent Petroleum Group Limited v Chaparrel Trading (Pvt) Ltd & Anor HH 67/23 the requirements for the revival of a superannuated judgment were listed as.
The judgment debt must remain outstanding;
The judgment to be revived must specify the amount;
There must be reasonable explanation for the delay in enforcing the judgment; and
The order must be of some benefit to the applicant.
Respondent disputed that the first and second requirements were me. He argued that there is no judgment debt and that the amount of R651 000.00 is nowhere in the order by consent or the Amended Consent Paper. Respondent relied on the definition of judgement debt given in the case of Zambezi Gas (Pvt) Ltd v NR Narber (Pvt) Ltd & Anor SC 3/20 where it is defined as;
“judgment debt means a decision of a court of Law upon relief claimed in an action or application which, in the case of money, refers to the amount in respect of which execution can be levied by the judgment creditor, and in the case of any other debt, refers to any other steps that can be taken by the judgment creditor to obtain satisfaction of the debt (but does not include a judgment debt that has prescribed, been abandoned or compromised).”
Whilst Respondent disputes that there is a judgment debt, he does not say he met all his obligations in terms of the divorce order granted on 10 August 2017. In the context of the matrimonial dispute giving rise to the order of 10 August 2017, I am satisfied that there is a judgment debt. The next issue to consider is whether or not the outstanding amount is specified paragraph 6.4 (c) of the Amended Consent Paper specified how the amount outstanding would be ascertained. It refers to the difference between R199.00.00 and the outstanding mortgage amount and other liabilities as at 12 January 2017. The outstanding mortgage amount and other liabilities can be ascertained from the lender as the cut off date is provided, that is 12 January 2017. Even though an exact figure was not stated, I am of the view that the method of ascertaining it leaves no ambiguity. The second requirement is therefore satisfied. Respondent seems to have no issues with the third and fourth requirements.
Respondent opposed the application on the basis that the parties varied the terms of the consent order and the Amended Consent Paper. Parties cannot vary the terms of an order of court on their own. As stated in Godza v Sibanda HH 254/13, they must apply for its amendment or variation if they want to depart from the terms of a court order. That the parties granted each other indulgencies contrary to the court order does not affect the terms of the order. I did not hear Respondent to submit that after reaching a compromise the parties subsequently approached the court for the variation of the order granted on 10 August 2017. I therefore make a finding that the court order granted on 10 August 2017 was neither varied nor amended.
Respondent former argued that the amount of R651 000.00 is not stated in either court order or Amended Consent Paper as being due and payable to applicant. Whilst that is factually correct, one must not loose sight of the fact that the parties agreed on the method of calculating the amount that would be due and payable to the applicant in the event that the immovable property in issue is not sold within the stipulated time. In any event the order sought by the applicant is not that Respondent be ordered to pay R651 000.00. She is simply seeking an order that revives the order of 10 August 2017. I reiterate once again that the terminology and principles must be understood in the context of a matrimonial dispute. Revival of the order is simply talking the parties back to the order of 10 August 2017. They will then be faced with the modalities of establishing the outstanding mortgage amount and obligations as at 12 January 2017 to come up with the amount to be paid to the applicant. It is at that stage that applicant is free to consider the indulgencies that the parties granted to each other. I find that a case has been made for the revival of the court order of 10 August 2017.
In the second paragraph of the draft order, applicant sought that Respondent be ordered to pay to her legal practitioners 10% Collection Commission in terms of the Law Society of Zimbabwe (Amendment) By Laws 2014. The issue of the collection commission was not elaborated and is not part of the arguments made before me. I will therefore disregard it. However, even though it is trite that costs follow the results of the matter, I am not persuaded that punitive costs are warranted in this case. The following order is made.
The court order granted by this honourable court on 10 August 2017 under case number HC 1762/17 be and is hereby revived as an executable order of this court.
The Respondent shall pay costs of suit.
Nenjy Nyamapfene Law Practice, Applicant’s Legal Practitioners
Kantor and Immerman, Respondent’s Legal Practioners