The
applicants were sued by the second respondent in this matter for the payment of
the sum of US$5,924= and the equivalent value of 22 grammes of gold. The latter
obtained a judgment under case number HC2856/13 and subsequently issued a Writ
of Execution against immovable property.
In
pursuance of the writ of execution, the second respondent caused the attachment
in execution of certain mining claims known as Zulu 15 located at Pioneer
Block, Bulawayo. The aforesaid mining claims were sold by private treaty
to the first respondent who duly paid the purchase price in terms of his bid.
On
the 18th December 2013, the applicants lodged an application with
this court for an order to set aside the sale. The terms of the order
sought are couched as follows:
“1.
The Private Treaty Sale conducted by the 3rd Respondent be and is
hereby declared void ab initio and set
aside.
2.
The Applicants be and are hereby ordered to pay 1st Respondent the
sum of US$7,100= jointly and severally with the one paying the other to be
absolved within 5 days of the granting of this order.
3.
In the event that Applicants fail/neglect to pay the amount of US$7,100=, the
Sheriff of Zimbabwe be and is hereby ordered to commence a de novo attachment in line with Rule 326 of the High Court
Rules.
4.
The 4th Respondent be and is hereby ordered to refund the 1st
Respondent the sum of US$5,000=.
5.
1st and 2nd Respondents be and are hereby ordered to pay
the costs of this application jointly and severally with one paying the other
to be absolved on an attorney and client scale.”
The
application is premised on the ground that the mining claims were sold for
an unreasonably low price. The applicant averred that the mining
claims raised an annual revenue in excess of US$1 million from gold ore
processed and sold from the said mining claims. To support their claims,
the applicants annexed copies of gold deposits with Fidelity Printers and
Refiners (Pvt) Ltd.
The
application to set aside the sale has been strenuously resisted by the first respondent.
The
first respondent purchased the mining claims by private treaty and made
payments to the third respondent. In opposing the application, the first respondent
attacked the application on the grounds that the applicants had adopted the
wrong procedure. In particular, the first respondent raised a point in limine contending that since the sale in execution had
already been confirmed by the third respondent, the applicants ought to have
approached this court on the general grounds of review. The first respondent
averred that the sale has been duly confirmed and the first respondent has duly
paid the sum of US$7,100= stipulated by the third respondent. Further, the
first respondent has paid the gazetted amount of US$5,016= to the fourth respondent
to enable the transfer of the mining claims. The third respondent has signed
the Certificate of Agent - Transfer to enable the transfer of the claims.
The
first respondent contends that the relief available to the applicants would
have been to seek a review of the sale by the third respondent.
It
is not in dispute that the sale was conducted procedurally in terms of Order 40
Rule 358(2) of the High Court Rules. The applicants were informed of the
sale by the third respondent through their appointed legal practitioners at the
time, Messrs T. Hara and Associates.
The
Rules do not provide for the procedure to be adopted after a sale in execution
has been confirmed. The procedure to be adopted has been laid down in the
case of George Muchapondwa Chiwanza v Herman Tendai
Matanda, The Sheriff for Zimbabwe and Others HB170-04.
In
this case, MAKARAU J states…, as follows:-
“The rules do not provide for the
procedure to be adopted after the sale in execution has been confirmed. It
is my view that any party with an interest in the sale may approach this court
by way of ordinary review to have the sale set aside.”
In
terms of the common law, where a review is brought challenging the validity of
the sale, the grounds for review would include such considerations as gross
unreasonableness, bias and unprocedural irregularities, but cannot include such
grounds as unreasonably low price or that the sale was not conducted as
provided for under the Rules unless such can be sub-sumed in the recognised
grounds for review at common law.
See
also the case of Mapedzamombe v Commercial Bank of Zimbabwe
and Another 1996 (1) ZLR 257 (S).
In
casu,
the applicants did not approach the third respondent in the first
instance. The application before me cannot be construed as a review of the
decision of the third respondent in terms of the High Court Rules. The applicants
cannot therefore invite the court to exercise its powers of review as this
application is premised on the ground that the mining claims were sold for an
unreasonably low price. The applicants evidently adopted the wrong
procedure. The procedure for a review application is provided for under
Order 33 of the High Court Rules.
I
am of the view that the point in limine has merit
and there is no need for me to deal with the merits of the matter for the reasons
given hereinabove.
In
the circumstances, the application for the setting aside of the sale is hereby
dismissed with costs.
