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While the enforcement of foreign judgments is vital for commercial certainty, it raises constitutional questions when execution targets immovable property, particularly residential property. The Allen v Chinganga ruling exposes a developing tension between creditor rights and property protections under the Constitution of Zimbabwe, 2013.

This article analyses the constitutional risks inherent in such enforcement.

Constitutional Protection of Property

Section 71 of the Constitution protects against arbitrary deprivation of property. Although not absolute, this right requires that:

Deprivation must be lawful

It must be proportionate

It must not be arbitrary

Zimbabwean courts have traditionally approached execution through a procedural lens, rather than a rights-based proportionality analysis.

The Problem of Proportionality

In Allen v Chinganga, a debt of approximately £5,600 triggered the potential sale of immovable property. The judgment does not extensively interrogate:

Whether the property is a primary residence

Whether less invasive means of execution were exhausted

The proportional relationship between debt size and asset value. This exposes Zimbabwean jurisprudence to criticism when viewed through a constitutional lens.

Comparative Insight

In South Africa, cases such as Jaftha v Schoeman established that execution against a primary residence requires explicit judicial oversight and consideration of alternatives. Zimbabwean courts have yet to develop similarly robust constitutional safeguards.

Potential Future Challenges

The absence of a detailed proportionality inquiry creates space for:

Constitutional challenges under section 71

Arguments grounded in dignity and housing security

Increased scrutiny from regional and international human rights perspectives

While the High Court acted within existing legal parameters, future enforcement cases will likely demand deeper constitutional engagement. Without this evolution, Zimbabwe risks a growing disconnect between commercial enforcement efficiency and constitutional property protections.

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