UCHENA
JA: After hearing detailed submissions
from the appellant and second, fourth and fifth respondents' counsels, the
parties agreed to the granting of the following order by consent:-
“It is ordered by consent that:
The
appeal succeeds with costs against 2nd, 4th and 5th
respondents. The judgment of the court a
quo is set aside and substituted with the following order;-
1. The
attachment effected in Case No. HC 1644/12 in the matter between Outsource
Security (Pvt) Ltd vs Zimbabwe Mining Company (Pvt) Ltd be and is hereby
declared a nullity and is set aside.
2. All
sales in execution conducted in consequence of the attachment aforesaid be and
are hereby declared a nullity and are set aside.
3. Second,
third, fourth and 5th respondents are ordered to return all goods
belonging to the appellant within fourteen days of this order.
4. The
first and second respondents be and are hereby ordered to refund to the third,
fourth, and fifth respondents the full amount each paid within thirty (30) days
of the date of this order.”
In-spite of the order being granted by
consent we deemed it necessary to write this judgment to guide the Sheriff's
office on the need to make a proper inventory and valuation on attachment and
to stop the sale when enough money has been raised to cover the judgment debt
and costs.
The appellant Zimbabwe
Mining Company (Pvt) Ltd was sued by the first respondent, Outsource Security
(Pvt) Ltd for a sum of $29 490-00. The
appellant was found liable and ordered to pay $29 490-00 to the first
respondent. The appellant did not pay
till a warrant of execution was issued on 11 July 2012. The record of proceedings seems to suggest
that there was another writ between the appellant and the first respondent
which increased the judgment debt to $36 748.00.
The Deputy Sheriff,
Gwanda, who is the second respondent in this appeal executed the writ by
attaching and selling the appellant's property by public auction on 10 August
2012. Willem Smit, S Dhliwayo and A P
Glendening are the third to fifth respondents. They attended the public auction sale
conducted by the second respondent and bought some of the appellant's property.
The appellant being
aggrieved by the way his property had been attached and sold applied to the
court a quo for the setting aside of the
attachment and sale. The application was
premised on the second respondent having attached almost everything she could find
at the appellant's mine without evaluating the attached assets and having
continued with the sale after the amount for which the writ of execution had
been issued had been raised.
The second respondent
attached the listed property and endorsed them on the writ of execution as
follows:-
“1 x tenovo laptop
1 x 1- sencys mf 4350d printer
ABY 2055 Hilux
Dump truck R318 ( 1 wheel missing)
AWD Bedford Tanker Reg ABB 5226 LHD
4 x 2000 litre tanks
1 x scooter
1 x ABO 5981 Hilux 4D (Non- runner)
1 x kipor generator KDE 2200
3 x ladders
5 x pikes
4 x shovels
5 x spades
2
x machetes
Mitsubishi Delica (Not seen at the time of
attachment)
Kipor Generator 50 HZ
Caterpillar generator 40kw
Cat Excavator 7345B
Bull Dozzer Dissa
Catepillar & Dump Truck (R317 and
R313)
Date 12/07/12
Approximate Value $--.”
The appellant's
application was based on r 335, 338 and 340 of the High Court Rules 1971. It was argued on its behalf that in terms of r
335 the Deputy Sheriff should have valued the attached goods but did not do so.
In terms of r 338 it was argued that the
sales to the third to fifth respondents were not for ready cash. In terms of r 340 it was argued that the second
respondent should have stopped the sale once the amount on the writ plus the
costs of execution had been raised.
On p 4 of its cyclostyled
judgment the court a quo commenting
on r 335 and 340 said:
“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
any event rule 341 caters for a situation where there is an exccess 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 access
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.”
Mr Girach who argued the appellant's appeal before this court made
useful submissions on r 335 and 340 of the High Court Rules 1971. In respect of r 335 he submitted that the second
respondent's failure to value the attached goods renders the attachment a
nullity leading to the subsequent sale being a nullity.
He submitted that the
court a quo erred by not analysing r
335 which would have made it clear that the attachment was a nullity. Rule 335 provides as follows:-
(1)
The
sheriff or his deputy shall, upon receiving a writ directing him to levy
execution on movable property forthwith go to the house or place of business of
the execution debtor (unless the judgment creditor shall give different
instructions regarding the situation of the assets to be attached) and there
demand satisfaction of the writ, or else
require that so much movable property be pointed out as the said sheriff or his
deputy may deem sufficient to satisfy the exigency of the writ, and if such
last mentioned request is complied with, the said sheriff or his deputy shall make an inventory and valuation of
such movable property; but if the debtor does not point out such property, the
said sheriff or his deputy shall immediately make an inventory and valuation of
so much of the movable property belonging to the debtor as he may deem
sufficient to satisfy the writ.
(2)
……….
(3)
……….
(4)
When the foregoing
requirements of this rule have been complied with by the sheriff or his deputy,
the goods so inventoried by him shall become and be judicially attached”. (emphasis added)
The use of the word “shall” in r 335 sub rule (1)
makes it mandatory for the sheriff or his subordinates to place a value on each
item of property attached. The purpose
of such valuation being to guide him to attach only so much as will satisfy the
writ. In this case the second respondent
attached the appellant's above listed property but did not place any value on
all of them. She then sold some of the
property and raised an amount far in excess of the amount stated in the writ.
The court a quo,
instead of properly guiding the second respondent, went on to encourage her
failure to value the attached property and sale of several items of the attached
property for sums far in excess of the amount the writ instructed her to raise.
The Sheriff and all officers acting under his office
are not free agents who act as they please.
As provided by section 20 of the High Court Act [Chapter 7:06], they are officers of the court who should execute
orders of the court. Their mandate is to execute orders of the court in terms
of the law and the rules. They are not
allowed to operate outside the law and the rules. The writ of execution specifies the amount to
be raised and allows the Sheriff and his officers to include the cost of
execution. The total amount made out of
the amount on the writ and the permissible charges is what the second respondent
was entitled to raise. That should have
been her target at attachment and at the sale in execution.
Section 20 of the High Court Act which authorises the
Sheriff and his subordinates to enforce court orders provides as follows:
“(1) Subject to
section nineteen and to rules of court, the Sheriff shall, by himself or his deputy or an assistant deputy, execute all
sentences, decrees, judgments, writs, summonses, rules, orders, warrants,
commands and other process of the High Court, and shall make a return thereof
to that court, together with the manner of the execution thereof.” (emphasis
added)
Section 20 authorises the Sheriff or his deputy or
assistant to execute orders issued by the court. They should therefore do no more than is ordered
by the Court. They should in the case of
a writ aim to raise the amount stated in the writ plus cost of execution. That is why r 335 requires them to make an
inventory and valuation of the attached property. The inventory should guide
them as to how much to attach which eventually determines how much should be
sold. Failure to operate within the strict confines
of the Act and rules of court renders their actions a nullity.
In this case the second respondent's attachment of the
listed property for purposes of raising $36 748-00 is patently unreasonable,
irresponsible and unlawful. The attachment of things of great and small values
betrays a vindictive attachment. The total value of the attached property runs
into several hundred thousand dollars, but aimed at raising $36 748-00. The second respondent clearly exceeded her
mandate in terms of section 20 of the High Court Act.
The failure to evaluate the attached property renders
the attachment a nullity. Rule 335 sub
rule (4) spells out why it is a nullity. It states:
“(4) When the foregoing requirements of this
rule have been complied with by the sheriff or his deputy, the goods so
inventoried by him shall become and be judicially attached”.
This means when the requirements of r 335 have not
been fully complied with the purported attachment would be a nullity. In this case the failure to evaluate the
property listed in the second respondent's inventory rendered the attachment a
nullity.
As if the above was not bad enough, the second
respondent did more. She sold three of
the attached properties for US$104 000-00 for a judgment debt of
US$36 748 00. She sold the
excavator for US$51 000-00, the bulldozer for US21 000-00 and the dump truck
for US$32 000-00. In respect of this
conduct by the second respondent Mr Girach
for the appellant, submitted that r 340 of the High Court rules required the second
respondent to stop the sale as soon as sufficient money had been raised to
satisfy the writ and costs of sale. Rule 340 was intended to limit interference
with the judgment debtor's property to the extent necessary for the recovery of
the judgment debt. It provides as follows:
“A sale in execution shall be stopped as soon as sufficient money has been raised to satisfy
the said warrant and the costs of the sale.” (emphasis added)
Sales in execution should be conducted in a reasonable
and responsible manner to achieve the purpose for which they were enacted,
which is to raise the judgment debt. Rule 340 provides that a sale in execution
shall be stopped as soon as enough money has been raised to pay the judgment
creditor and meet the costs of the sale. The use of the words “shall be
stopped” is significant. It means the second
respondent should have stopped the sale, when enough money to pay the
US$36748-00 plus costs of the sale had been raised. Contrary
to the provisions of r 340, she continued to sell the appellant's property until
she had unnecessarily and unlawfully raised US$104 000-00. The sell of the
appellant's property in breach of the provisions of r 340 does not constitute a
valid sale. An act done in violation of the rules of court cannot be valid. It
is a nullity.
In this case it is not necessary to determine which
property was sold in breach of r 340 because all sales made at the Auction were
nullified by the 2nd respondent's failure to evaluate the property
she attached.
The
court a quo's view that r 341 allows
the deputy sheriff to sale more than is necessary to raise the amount indicated
on the writ of execution plus costs, is not correct. Rule 341 provides as follows:
“If the sheriff or his deputy has a
balance in hand after payment of the judgment creditor's claim and costs he
shall pay the same to the judgment debtor if he can be found; otherwise he
shall pay such balance into the sheriff's account to be held for one year and
thereafter to be paid into the Guardian's Fund if unclaimed.”
The use of the word “if” in r 341 is intended to cover
situations where an unavoidable excess amount is raised due to the value of an
item or items exceeding the value of the judgment debt. It does not mean that the deputy sheriff can
deliberately sale more than is necessary to raise the judgment debt and costs
of the sale. Rule 341 should be read
together with r 340 which requires the deputy sheriff to stop the sale, once
the judgment debt plus costs have been raised. It should also be read with rule
335 which authorises the deputy sheriff to attach so much as he deems
sufficient to satisfy the exigencies of the writ. It does not cover situations
like the present where one item raised US$51 000-00 and the other two items
were sold for a total amount of US$53 000-00. The second respondent could have justifiably
sold the excavator for US$51 000-00 and stopped the sale. She could also have
justifiably sold the dump truck and bulldozer and stopped the sale. Either sale would have satisfied the judgment
debt plus costs of the sale. There is no
justification for her carrying on with the sale till she had raised a total of
US$104 000-00 for a debt of US$36 748-00.
If
one considers the inventory of the attached property a diligent sale would have
been a mixture of maybe one item of a value close to the judgment debt plus
costs and the sale of items of values which would have raised just enough to
cover the judgment debt plus costs and if unavoidable a little extra which
could be paid to the appellant.
The parties therefore correctly consented to the
setting aside of the judgment of the court a
quo as the attachment was a nullity and the subsequent sale was also a
nullity.
Costs of suit were ordered against the second, fourth
and fifth respondents because they only conceded after initially arguing that
the attachment and sale in execution were valid. Their concessions came after they had caused
the appellant to incur unnecessary costs. Costs were not ordered against the first and third
respondents as they had from the onset indicated that they would abide by the
decision of the court.
MALABA DCJ: I
agree
BERE AJA: I have had the privilege of going through the
elaborate and exhaustive judgment by Uchena JA with which I am in total
concurrence.
I make the observation
that the attachment and the subsequent disposal of the property in this case by
the second respondent was outrageous and clearly calculated to inflict maximum
damage to the appellant and thereby running down its operations.
If the second respondent
had done a simple valuation of the attached property as dictated by r 335, she
would have ascertained even before the sale had been conducted that the
disposal of a single item would have been sufficient to satisfy the judgment
debt. The second respondent was
evidently vindictive in her approach and acted in the most unprofessional
conduct in the discharge of her duties.
Such conduct calls for censure from this court.
If the second
respondent's conduct was prompted by the alleged obstruction of her sale in
execution of judgment by the conduct of the appellant's employee as alleged in
her heads of argument (para 5.2), surely the remedy did not lie in conducting a
vindictive sale but rather in invoking the criminal machinery that has been put
in place to deal with the situation that confronted her. The second respondent could have easily
invoked the provisions of s 22 of the High Court Act [Chapter:7:06] in dealing with the errant individual.
For the avoidance of
doubt the section is framed as follows:
“22. Offences relating to execution
(2) Any person who-
(a) obstructs the Sheriff or a Deputy
Sheriff or his assistant or a Sheriff's agent in the execution of his duty;
(b) …
(c) …
(d) …
Shall be guilty of an offence and liable
to a fine not exceeding level five or to imprisonment for a period not
exceeding six months or to both such fine and such imprisonment.”
There was therefore
absolutely no need for the second respondent to act in the manner she did in
this case.
Tamuka Moyo Attorneys, appellant's legal
practitioners
Mutsvaira & Associates, 1st respondent's
legal practitioners
Dube Nzarayapenga & Partners, 2nd respondent's
legal practitioners
Cheda & Partners, 3rd respondent's legal
practitioners
Dube- Tichaona Tsvangirai, 4th
respondent's legal practitioners.
Phulu & Ncube, 5th respondent's legal
practitioners
