Miriam Mirirai v The Sheriff of the High Court and Mupamombe Housing Cooperative Society Ltd and Financial Mirirai

### Preamble
1
HH 580-25
HCHF 3191/25
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MIRIAM MIRIRAI

versus

THE SHERIFF OF THE HIGH COURT

and

MUPAMOMBE HOUSING COOPERATIVE SOCIETY LTD

and

FINANCIAL MIRIRAI

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE; 25 September 2015

In chambers

MAXWELL J:   On 8 September 2025 this matter was set down for hearing.  The Applicant, first Respondent and third Respondent were all in default.  Only counsel for the second Respondent appeared and made submissions.  I issued the following order;

“Application be and is hereby dismissed with costs on a legal practitioner and client scale.”

Background

On 25 July 2025 Applicant filed a chamber application for interdict.  In the draft order she was seeking that the first Respondent be interdicted and restrained from executing any writ of execution or attaching any movable property at house number 1211 Mupamombe, Ingezi Kadoma under any judgment obtained by the second Respondent against the Third Respondent.  She also sought an order interdicting second and third Respondents from causing, directing or facilitating any execution process at the same premises.  In the Founding Affidavit.  She stated that she is the custodian of minor children born between her and the third Respondent with whom she separated on 5 August 2019.  Further that on 28 June 2025 second Respondent’s members showed her a writ of attachment issued against third Respondent indicating intention to attach movable property at her residence.  She stated that the third Respondent does not reside at the said property and none of the property in the premises belongs to him.  She attached a Separation Agreement.

The application was opposed by the second Responded.  Shadreck Nyoni, the Secretary General of the second Respondent deposed to the Opposing Affidavit.  He raised points in limine, firstly that the application is defective as it is seeking to interdict lawful activities of the first Respondent.  Secondly, he stated that the application is improperly before the court for want of a properly commissioned Founding Affidavit. He pointed out that there are discrepancies regarding the place of signing and commissioning as it is apparent that the signing was done at Harare whilst the commissioning was done at Kadoma.

On the merits, the deponent submitted that Applicant had not established that the third Respondent does not reside at the address provided and that the separation agreement is not proof of ownership or rights held over the immovable property in question.  He also submitted that Applicant had not met the requirements for an interdict.

Applicant did not file an answering affidavit. Second Respondent filed heads of argument.  On the hearing of the matter Mr Mahlangu submitted that the Applicant and third Respondent deliberately brought a frivolous application as the court has been inundated with a number of matters involving third Respondent.  He stated that the sheriff proceeded against the third Respondent’s movable property and instead of filing an interpleader Applicant filed the present application.

Further despite it being pointed out in the Opposing Affidavit that the Founding Affidavit was defective, the application was not withdrawn.  In addition, the Applicant did not attend court.  He submitted that the application was not sincere and Applicant was not genuine.  He referred to the case of Kadira v Nhemwa and others HH 97/23 and prayed for costs on a legal practitioner and client scale.

Analysis

That the application seeks to interdict a lawful process.

It is common cause that the writ of execution issued by the Registrar of the High Court on 20 June 2025 under case number HCH 2221/24 is still extant.  It has been held that an interdict cannot be granted against conduct that is prima facie lawful.  See Magaya v Zimbabwe Gender Commission SC 105/2021 and Mayor Logistics (Pvt) Ltd v ZIMRA SC 7/14. The first point in limine is there for merited.

That the Founding Affidavit is Defective.

The Founding Affidavit was done and signed at Harare on 16 July 2025.  It was signed by the deponent.  The commissioner of Oaths signed and put a stamp with an address in Kadoma.  This anomaly was pointed out in the Opposing affidavit.  In the absence of any explanation to the contrary, the commissioner of Oaths signed in Kadoma whilst the deponent signed in Harare.  In Mandishayika v Sithole HH 798/15 it is stated that.

“An affidavit is a written statement made on oath before a commissioner of oaths or other person authorised to administer oaths.  The deponent to the statement must take an oath in the presence of the commissioner of oaths and must append his or her signature to the document in the presence of such commissioner, equally, the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature to the statement in the presence of the deponent.  The commissioner must also endorse the date on which the oath was so administered.  These acts must occur contemporaneously.”

It follows that the deponent and the commissioner of oaths must therefore be in the same geographical location for the signing and commissioning to occur contemporaneously.  That seems not to have been the case in casu. The second point in limine is also merited

Merits

An applicant seeking an interdict must establish a clear right, irreparable harm actually committed or reasonably apprehended and the absence of an alternative remedy.  See Setlogelo v Setlogelo 1914 AD 221, Econet Wireless Holdings and Ors v Minister of Finance and Ors 2001 (1) ZLR 323.  Applicant did not establish a clear right.  The separation agreement attached does not have the parties’ addresses. The information of where each resides was not inserted and the document has the request [insert address] after the name of each party to the agreement. There is therefore no proof that either party was residing or not residing at the address in question.  There is therefore no indication that the agreement attached pertained to property at the address in question. A clear right was therefore not established. Without a clear right, I am not persuaded that irreparable harm actually committed or reasonably apprehended can be established.

Second Respondent submitted that the applicant has not demonstrated that she has no other remedy.  It is trite that an interdict is granted where there is no alternative remedy that is adequate in the circumstances. See Silverline Chemicals (Pvt) Ltd v ZIMRA HMA 28/24.  Rule 63 of the High court Rules SI 202/2021provides an alternative and efficient remedy at the disposal of the Applicant.  There is no explanation as no why the Applicant did not issue an interpleader in this case.  She therefore fails on this requirement for an interdict.

For the above reasons, I dismissed the application.  On the issue of costs, I considered that second Respondent pointed out the defects in Applicant’s papers.  Applicant did not rectify the defects.  In addition, Applicant did not appear on the date of the hearing.  That gives the impression that the Applicant was not genuine and was just seeking to delay the inevitable.  Her application fits in the category of frivolous and vexatious.

In Rodgers v Rodgers and Anor 2002 (1) ZLR 330 frivolous and vexatious is defined as connoting an action characterised by lack of seriousness.

Applicant’s conduct warranted the award of punitive costs against her. For the above

reasons, I dismissed the application with costs on a legal practitioner and client scale.

Maxwell J:....................................................................

Maposa Mahlangu Attonerys, 2nd Respondent’s Legal Practitioners.