On
18 August 2012, the applicant applied for and was granted a provisional order
by this court in the following terms:-
“Pending
determination of this matter, the applicant is granted the following relief:-
(1) That
the 2nd respondent be and is hereby interdicted from effecting
delivery to the 3rd, 4th an 5th respondents or
any other party who purported to purchase applicant's goods that were sold in
execution on 10th August 2012 pending the return date of this
application.
(2) In
the event that any person has taken possession of any of the goods before the
hearing of this application, that such person be and is hereby ordered to
return the same to the applicant's mine within 24 hours of being served with
this order.
(3) That
the 2nd respondent be and is hereby compelled to supply the
applicant with a full return showing the full details of the sale, including
any writ on which she acted within 24 hours of being served with this
application.”
On
4 July 2012, the first respondent obtained a judgment against the applicant in
the sum of $29,490=. The first respondent further obtained another order
against the applicant, on 8 August 2012, in the sum of $7,258=. The total
indebtedness of the applicant to the first respondent was $36,748= for which
the first respondent obtained a writ of execution. The judgments were
obtained in default.
The
applicant is in the habit of not paying its debts.
The
first respondent then instructed the Deputy Sheriff (Gwanda) – the second
respondent, to attach the applicant's movable goods in execution of those two
judgments. On 12 July 2012, the second respondent attached the applicant's
goods in execution.
The
applicant complained that the said goods were not valued.
The
applicant alleged that it had subsequently entered into an agreement with the first
respondent to settle the judgment debt on 15 August 2012.
The
second respondent, had, however, proceeded with the sale in execution on 10
August 2012 yet the mandate to proceed with the sale in execution had allegedly
been withdrawn before the Deputy Sheriff had been paid with ready money.
The
second respondent had sold the following applicant's goods:-
(i)
An excavator for US$51,000=;
(ii)
A bulldozer for US$21,000=; and
(iii)
A dump truck for US$32,000=;
fetching
a total amount of US$104,000= for a total judgment debt of only US$36,748=.
The
applicant alleged that the second respondent had failed to observe the legal
pre-requisites for a sale in execution in that:-
(a)
She had not sold the attached goods for ready money;
(b)
She had sold goods that were far above the amount on the writs she had; and
(c)
She had proceeded to receive payments from the purchasers after she had been
told to set aside the sale in execution by the judgment creditor's legal
practitioners.
The
applicant claimed to have satisfied the judgment in terms of an agreement it
had allegedly entered into with the first respondent. It was for that
reason that it felt if it was not granted an order interdicting the second
respondent from effecting delivery of the goods to the purchasers, and setting
aside the alleged irregular sale, it would suffer irreversible damage.
The
respondents argued that the applicant finds itself in an enviable and untenable
position because of its tardiness and pointed out that the law protects the
diligent and not the sluggard. Its property was attached on 12 July
2012. For nearly a full month, with the full knowledge of attachment, it
sat on its hands and did not take any action until its property was sold on 10
August 2012. It admits of no doubt that as at that date there was no
letter suspending the sale. Mr Steven Mushonga, who deposed to the judgment
creditor's affidavit, averred, in paragraph 4.4 thereof, that he had not
instructed the Deputy Sheriff to stop the sale in execution as no undertaking
was made by the applicant that the US$26,000= would be paid on 9 August 2012.
He went further to state, in paragraph 4.6, that he had not agreed to instruct
the Deputy Sheriff not to receive payment.
Consequently,
the respondents held the view that the Deputy Sheriff had the mandate to
conduct the sale in execution. That sale was not suspended, and has not
been suspended, up to this date as there is no letter suspending the
sale. So that sale was clearly valid.
Apart
from the fact that the applicant did nothing up to the date of the sale in
execution, when it had prior knowledge a month prior to the sale, on the date
of the sale, the applicant hired a bouncer to disrupt the sale without
success. It was only after the failure by the bouncer to stop the sale
that the applicant frantically tried to run around to have the sale set aside.
It
was submitted that overall it showed that the applicant had no money to
pay. It only raised the money after the sale had been conducted.
The
respondents contended that the applicant's assertion that it had reached an
agreement with the judgment creditor to settle the debt was simply not
true. There was no such agreement filed of record. What is on record
are letters that were exchanged between the parties discussing a possible stop
of the sale in execution.
The
applicant alleged that it had made a payment to satisfy the writ on 15 August
2012 and filed annexure “D” as proof of payment of $39,988=. That, however, was
not full payment as it was short by $488=. Moreover, that payment was not
made to the Deputy Sheriff but was made to the first respondent's legal practitioners
who pointed out in their letter of 16 August 2012 that the money was short by
$488=. They, however, went on to say that they were prepared to consent to
have the sale in execution set aside.
What
is clear is that as at 15 August 2012 no instructions had been given to the Deputy
Sheriff and no full payment had been made. The respondents' contention was that
if the applicant had the money it should have paid to the Deputy Sheriff
instead of paying the first respondent's legal practitioners. In their view, the
applicant simply had no money to pay.
They
further alleged that due to its lack of diligence, the applicant complained
about problems of its own making. It brought this application basing it on
the provisions of Rule 359 of the High Court Rules. But that Rule only
refers to immovable property. It does not refer to movable
property. When it realised its error, it conceded at the hearing that the
application was based on a wrong foundation. It then attempted to make a
meaningless change and contended that the application was based on the case of Ngarati v Mudzingwa 2008 (2)
ZLR 88. It ignored the fact that that case was based on Rule 359 which deals
with immovables not movables. The respondents accordingly submitted that the
applicant's case falls on that argument.
There
is merit in that submission.
It
was their contention that the only way the applicant could challenge the
proceedings of the sale in execution was by way of a review not in terms of Rule
359 of the Rules of Court, and not in terms of the Ngarati v
Mudzingwa 2008 (2) ZLR 88
case. The application should have been commenced in terms of order 33 Rule
259 but it was not. Instead, it was commenced under order 40 Rule
359. The fact that the application was not a review is fatal to it.
The
respondents went on to allege that the Deputy Sheriff made an inventory of the
property which was attached and made a value judgment that the attached
property may be sufficient to satisfy the writ. In fact, the bouncer hired
by the applicant, one Tichaona, had locked away the small items which could
have been sold to satisfy the writ. The bouncer ran away with the keys of the
section where the smaller items were located. He even drove away a vehicle
under attachment. The problem that larger items instead of smaller ones
were sold was clearly created by the applicant. In any event, Rule 341 caters
for a situation where there is an excess after payment of the judgment
creditor's claim and costs, the balance shall be paid to the judgment debtor by
the Deputy Sheriff. The fact that there is an excess amount does not in
itself render the sale in execution invalid. Even if the Deputy Sheriff
had made a wrong calculation that in itself would not have invalidated the
sale. In the event the Deputy Sheriff negligently sold the other items, the
applicant can sue her for damages and not to invalidate the sale.
There
is merit in the submission.
The
applicant had alleged that the Deputy Sheriff had not sold the attached
property for ready money and went so far as to suggest that the sale was a
credit sale.
Rule
338 Order 40 of the High Court Rules provides that;
“…,
any movable property sold in execution shall be sold publicly and for ready
money by the Sheriff or his deputy to the highest bidder…,.”
The
third respondent, who bidded for the bulldozer and was declared the highest
bidder, was instructed by the Deputy Sheriff not to make a cash payment in the
light of the value of the purchase price. It was a large sum of
money. The respondent was instructed to make a bank transfer which he
did.
It
admits of no doubt that the sale in respect of the bulldozer was for ready
money.
The
fourth respondent bought a front end loader for $51,000=. Payment was
effected by way of an electronic cash transfer into the account of the Deputy Sheriff.
Payment
in respect of this sum was also for ready money.
The
fifth respondent bought a CAT Dump truck R317 for $32,000= by paying the sum of
$29,090= into the Deputy Sheriff's account on 15 August 2012. The balance
was to be paid to the Zimbabwe Revenue Authority as withholding tax.
There
is also no doubt, whatsoever, that payment was for ready money in this case.
The
English British Dictionary and Oxford Dictionary define “ready money” as:-
“Money
that is available to be spent immediately;” “money that is in hand or may be
obtained quickly or easily, cash;” “money on hand or quickly available, money
held ready for payment;” “payment money in the form of cash that is immediately
available.”
The
mode of payment used by all the three respondents made the purchase price
quickly available. It was money held ready for payment. The suggestion by
the applicant that “although the sale was clearly not a credit sale, second
respondent did not receive cash. She therefore turned it into a credit
sale in breach of both the Rules and the conditions of sale” is absurd and
vexatious.
In
the light of the foregoing, this application fails….,.
In
the result, the provisional order is hereby discharged with costs on an
attorney and client scale.
The
third respondent's counter-claim is granted in terms of the draft order…., with
costs being borne by the applicant only on an attorney and client scale.
Similarly,
the fourth respondent's counter-claim is granted in terms of the draft order….,
with costs being borne by the applicant only on an attorney and client scale.
