Chipo Maruku v Katt Construction Pvt Ltd & 2 Ors

### Preamble
1
HH 556-25
HCH2180/24
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CHIPO MARUKU

versus

KATT CONSRUCTION PVT LTD

and

SIMON MUZENDA HOUSING COOP

and

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE; 17 May 2024 and 22 September 2025

Opposed Application For Stay Of Execution

Ms Michael, for the applicant

J B Matandire, for the 1st respondent

No appearance for the 2nd respondent

No appearance for the 3rd respondent

Urgent Chamber Application For Stay Of Execution

TAKUVA J:    This is an urgent chamber application in which the Applicant is seeking stay of execution pending the determination of her application for rescission of a default judgment pending under case No. HCH 2167/24.

BACKGROUND FACTS

In October 2019, first Respondent obtained a default judgment against Applicant’s ex-husband.  This was an eviction order against Applicant’s ex-husband and all those claiming occupation through him from stand No. 4074 Simon Muzenda Housing Cooperative Waterfalls, Harare within 5 days of the court order.  At that time Applicant’s union with her husband had been terminated.  Her husband had a lease to buy agreement with first respondent.  Upon breach of this lease agreement, first Respondent commenced legal proceedings.  Applicant’s ex-husband was served but failed to oppose the claim.  Applicant was not served with the papers as she was not a party to the lease agreement between the first Respondent her husband.

APPLICANT’S SUBMISSIONS

Applicant alleges that she has real and substantial interest in the matter in that upon divorce, her husband’s rights in the property were ceded to her.  Further, it was her contention that injustice would result if the application is not granted.  It was also contended that the judgment was erroneously granted as there was no service effected on the Applicant and wrong citation of parties or misjoinder.  Applicant denied that the Certificate of Urgency was defective by virtue of it having been signed by a Lawyer from the same Law Firm representing Applicant.  Reliance was placed on Mudekunye v Mudekunye HB 190/2002 and China Africa Sunlight v Sino Zimbabwe HH 504/2016.

As regards material non disclosure of facts, Applicant submitted that she did not fail to disclose those facts in that she simply relied on what her ex-husband told her.  Applicant conceded that she did not have any proof that her ex-husband’s personal rights in the property were ceded to her.  However, she believed that the second Respondent was supposed to amend its record to reflect this cession.  She also submitted that she believed her ex-husband had made any necessary payments to the second Respondent.  Again, she did not have any proof of such payments.

According to the Applicant, the balance of convenience favours the granting of stay of execution until the application for rescission is filed and determined.  Finally, she submitted that she will be prejudiced by the eviction and prayed that the application be granted.

First respondent’s submissions

On the other hand, the first respondent in its opposing Affidavit argue that the Certificate of Urgency is defective in that it was deposed to buy a legal practitioner from the law firm handling the matter.  It was further submitted that there was material non disclosure of facts and false statements by the applicant as regards the background facts.  The first Respondent argued that no cession could have taken place between Applicant and her ex-husband because it is trite law that no one can give or transfer any greater rights than he possesses.  Therefore, the Applicant’s ex-husband could not give or donate, cede or transfer a property which he did not have.  The first Respondent relied on the authority of Zavazava v Thendere HH 740/15

As regards, privity of contract, first respondent submitted that the applicant is not a party to the Lease Agreement and therefore, can not purport to have any rights arising from such a contract.  It follows therefore, that contractual remedies are enforceable only by or against parties to a contract and not third parties since contracts only create personal rights.  Relieance was placed on Tibic Pvt Ltd and Anor v Mangonje SC 13/18, Chitamba v Chadenga HH 41/23.

Finally, it was submitted that there should be finality to litigation and in light of this principle, the matter should be struck off the roll of urgent matters with costs on ordinary scale.

MERITS

First Respondent submitted that the present application and the application for rescission of judgment filed under case No. HCH 2167/24 are both an abuse of Court process meant only to delay justice and to frustrate the interest of finality to litigation.  There has been a wholesale misrepresentation of facts in order to mislead the court into believing that the applicant might have a case.

According to the first Respondent, the correct facts are the following;

That the first Respondent and Applicant’s ex-husband concluded a Residence lease agreement with an option to purchase agreement with applicant being a witness to same, whose terms Caven Gunha failed to satisfy resulting in legal proceedings for cancellation of same and for the eviction of Caven Gunha and All those claiming occupation through him.

Gunha not having a defence to breach of the lease agreement could not defend the position resulting in an Order for cancellation of the lease agreement and his eviction being granted by Zhou J under case No. HC 8374/19.

The Applicant not being a party to the Residential lease with an option to purchase agreement, cannot claim interest in the matter for she is not privy to the contract, and any allegation of error based on her non-citation is misplaced and legally invalid.

The Applicant’s contention that the property was given to her by Caven Gunha upon separation and during sharing of property, and therefore that she ought to have been a party is of no moment, firstly by application of principles of privity of contract as highlighted above and secondly by the simple legal fact that persons can not share a property which does not belong to them, to that end it is clear from the Residential Lease with an option to purchase agreement that the property in question remained that of the first Respondent until such time as Caven Gunha fulfils the terms of payment stated therein.

The execution of the judgment has been delayed through the orders made under case No. HC 5964/20 and HC 4900/18 and at the culmination of the matters by their conclusion in favour of the first Respondent means that the writ in case No. HC 8374/19 is up for execution in order that the principle of finality to litigation be observed.

The first Respondent finally submitted that the application should be dismissed with costs on a legal practitioner and client scale on the basis that the petition is merely an abuse of court process.

ANALYSIS

A stay of execution is a temporary suspension of a court’s order, judgment, or decree allowing for the enforcement of that order to be postponed.  Usually, this is done pending a further court determination, like an appeal or a review of the initial decision.  The court’s power to grant a stay of execution is in herent, but exercised judiciously, only when real and substantial justice requires it or when injustice would otherwise occur.

In Dawson v Dzipange & Anor HH 830/22, the court stated;

“Execution is a process of the court and the court has an inherent power to control its own process subject to the rules of court. Circumstances may arise where stay of execution is sought hence should be granted on the basis of real and substantial justice.  Thus, where injustice would otherwise be caused, the court has the power and would generally speaking, grant relief.”

In Mupeni v Makoni 1993(1) ZLR 80(S) at 83, the court stated;

“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution, or, for that matter cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.”

As regards the points in limine, I take the review that non is dispositive of the matter.  I am also of the view that the certificate of urgency can not be termed defective for the reasons given by the first Respondent.  The other points in limine namely privity of contract locus standi and material dispute of facts are so interwoven with the merits that they will be considered below.

From facts that are common cause, the Applicant is not a party to the lease agreement between first Respondent and her ex-husband.  There is no evidence to show that Applicant was included as a beneficiary or has been assigned rights under the lease agreement.  It is trite law that only parties to a contract can enforce its terms or be bound by its obligations.  Third parties can not claim rights under a contract unless they are expressly included as beneficiaries or have been assigned rights under the contract.  See Fletcher v Flecher [1844]4 HAREC7.

In casu, Applicant’s claim to the property is based on her assertion that Gunha ceded his rights to her following their separation.  Applicant has failed to provide any formal documentation to support this claim since the first respondent has challenged the validity of the purported cession.  The absence of a valid cession, renders the application for rescission totally hopeless in that prospects of success are non-existent.

I agree with the first Respondent that real and substantial justice requires that stay of execution should not be granted.  No injustice would otherwise occur if it is dismissed.  I do not find any grounds, for granting a stay pending the determination of the application for rescission of a default judgment whose prospects are non-existent.

In the result, the application is dismissed with costs.

Takuva J:……………………….

Mugiya Law Chambers, applicants’ legal practitioners

John Mugogo Attorneys, first respondents’ legal practitioners