The
applicant
approached this court on an urgent basis seeking the following
provisional order;
“Pending
finalization of this matter -
3.
The 1st
and 2nd
respondents in this matter be and are hereby interdicted from
transferring the immovable property being Stand number 64688 Bulawayo
Township of Bulawayo Township Lands, measuring 247 square metres.
4.
The 3rd
respondent be and is hereby barred from evicting applicant from the
property described in paragraph 3 above.”
The
facts are that the first respondent sued Power Ridge Investments
(Pvt) Ltd, a company in which the applicant is a director. The
applicant was cited as the second defendant in that matter which was
filed under cover of HC57/15. The summons were served by the second
respondent at Number 8 Aston Road, Donnington, Bulawayo - the
applicant's domicillium
et executandi.
The applicant did not enter appearance to defend and the first
respondent obtained the following order, per MUTEMA J, on 27 February
2015;
“(a)
Payment of the sum of US$26,778=95 plus interest at the rate of 10%
per annum from the 2nd
of February 2014 to date of final payment in full.
(b)
An order declaring specially executable Stand 64688 Bulawayo, of
Bulawayo Township Lands situate in the district of Bulawayo and
measuring 247 square metres held by Mtumani Alexander Mlauzi under
Deed of Transfer No.236/2001 dated 15th
February 2001.
(c)
Costs of suit on a legal practitioner and client scale.”
Subsequently,
a notice of attachment of the immovable property was served on the
applicant in June 2015 at No. 8 Aston Road, Donnington, Bulawayo.
Further, a notice advising of the sale of the applicant's immovable
property was duly published in the Government Gazette in December
2015. When no further communication was received from the applicant,
the second respondent proceeded with the sale and declared the third
respondent the highest bidder.
On
29 December 2015, the second respondent addressed the following
letter to the first respondent's legal practitioners;
“I
refer you to the sale in the above matter by public auction and
advise that on the 29th
of December 2015, the Sheriff declared the highest bidder, Mxolisi
Mpofu of 98 Ashton Road, Fourwinds, Bulawayo, to be the purchaser at
the sum of US$14,500=.
If
no objections are made in writing to the Sheriff within 15 days from
the date the highest bidder was declared to be the purchaser in terms
of Rule 356 or the date of sale in terms of Rule 358 of the High
Court Rules 1971, the Sheriff will confirm the sale.
Copies
of any objection made in terms of the above paragraph should be
served without delay on all interested parties. Written notice in
opposition from interested parties should, in turn, be lodged with
the Sheriff within 10 days of being served with the written request.”
It
is common cause that the second respondent attempted to serve this
letter at No. 85 Aston Road Donnington, Bulawayo on 8 January 2016.
It should be noted that this is not the applicant's address for
service. Neither was it Power Ridge (Pvt) Ltd's domicilium
et executandi.
On
21 January 2016, the first respondent's legal practitioners
addressed a letter to the second respondent enquiring whether any
objections were lodged in respect of the offer from the highest
bidder. The second respondent did not reply this letter, but,
instead, on 8 February 2016, addressed a letter to the first
respondent's legal practitioner in the following terms:
“I
refer to the sale in the above matter and advise that on 29 December
2015, the Sheriff declared and confirmed the highest bidder, Mxolisi
Mpofu, the purchaser at the sum of US$14,500=….,.
Kindly
pass transfer to the purchaser against payment of all costs, our
charges and advise of the date of transfer. Also bear in mind that
the transfer documents are to be drawn in the name Kudakwashe
Lawrence Nzvere in his capacity as Additional Sheriff for Bulawayo.
Thereafter, forward these documents to this office for his
signature.”
It
is clear from the above that the second respondent had confirmed the
sale in terms of Rule 359(10) of this court's rules. The third
respondent delivered a notice to vacate the premises on 5 June 2016.
The applicant was supposed to have vacated the property by 7 June
2016. The notice was brought to the applicant who at the time was
visiting his son in Canada. He then brought this application on the
following grounds:
(a)
The matter was urgent in that the third respondent had given him two
days to vacate the house and that transfer was imminent following
confirmation of the sale by the second respondent.
(b)
He gave a satisfactory explanation on the delay to file this
application.
(c)
He was not informed of the sale in execution as is required in terms
of Order 40 Rule 347(1)(a) of the rules.
(d)
He was not served with the notice of attachment or writ.
(e)
He was not afforded an opportunity to object to the sale in terms of
Rule 359 of this court's rules in that the return of service for
the letter shows that there was an “attempted service” at No. 85
Aston Road, Donnington.
The
application was strenuously opposed on the following grounds;
(i)
Firstly,
in
limine,
it was contended that the application lacks urgency in that the
applicant, through his son, one Hugh Mlauzi, was aware all along of
the sale of the property, both having been notified in June 2015.
(ii)
Secondly, it was argued, on the merits, that the sale in execution
complied with the provisions of this court's rules in that service
of the summons, the notice of attachment together with the writ of
execution, was properly made at the applicant's chosen address,
being No.8 Aston Road Donnington, Bulawayo. This constitutes proper
service in terms of Rule 347(3) of this court's rules.
(iii)
Thirdly, it was conceded that after the highest bidder was declared
by the second respondent; a copy of the letter inviting objections
was sent to an incorrect address resulting in an “attempted
service.” Notwithstanding this anomaly, counsel for the first
respondent argued that the application should still fail because the
applicant is only relying on improper service as a ground for
nullifying confirmation without citing other grounds, if any, for
example the fact that the property was sold at a ridiculously low
price. She also submitted that the applicant jumped the gun by filing
this application instead of approaching the Deputy Sheriff in terms
of Rule 359.
As
regards urgency, I find the first respondent's argument
unconvincing in that the fact that applicant may have been aware of
the sale in execution does not deprive him of his right to be
informed of the declaration of the highest bidder by the second
respondent. The applicant, as an interested person, only got to know
of the confirmation after the fact on 5 June 2016 in contravention of
Rules 356 and 359. After receiving information relating to the notice
to vacate, the applicant, who was then in Canada, prepared papers and
filed this application on 21 June 2016. I find the explanation of the
non-timeous action he has proferred in the founding affidavit to be
good. Therefore I find that this application is urgent.
On
the merits, the issue is a simple one if one focuses on the interim
relief sought by the applicant. It is trite law that a court has to
decide, in its discretion, whether or not to grant a temporary
interdict. The court has to be satisfied that an applicant has proved
an actual or well grounded apprehension of irreparable loss if no
interdict is granted and it must have regard to the balance of
convenience – see C.B. PREST, The
Law and Practice of Interdicts
Juta & Co. 1995…,.
It
is accepted that the requisites of an interlocutory interdict are;
“(a)
That the right which is the subject matter of the main action and
which he seeks to protect by means of interim relief is clear or, if
not clear, is prima
facie
established though open to some doubt;
(b)
That, if the right is only prima
facie
established there is a well-grounded apprehension of irreparable harm
to the applicant if the interim relief is not granted and he
ultimately succeeds in establishing his right;
(c)
That the applicant has no other satisfactory remedy.”
See
L
F Boshoff Investments (Pvt) Ltd v Cape Town Municipality
1969 (2) SA 256 (C)…, per CORBETT J. See also Airfield
Investments (Pvt) Ltd v Minister of Lands and Others
2004 (1) ZLR 511 (S).
In
Straffuer
Chemicals v Monstanto Co
1988 (1) SA 805 (T)…, HARMS J said;
“…,
the basis of an interdict is the threat, actual or implied, on the
part of a defendant, that he is about to do an act which is in
violation of the plaintiff's right and that actual infringement is
merely evidence upon which the court implies an intention to continue
in the same course. I would have thought it automatic that an
interdict is not a remedy for past invasions of rights. It is for the
protection of an existing right.”
In
casu,
I
agree with counsel for the applicant that indeed the requirements of
an interim relief have been met by the applicant. The relief is a
temporary interdict halting the transfer of the property to the third
respondent pending the return date. The final interdict sought is the
setting aside of the confirmation of the sale by the second
respondent. As I understand it, the remedy sought for now is not the
setting aside of the sale. Consequently, what is critical is the
procedure surrounding confirmation. In that respect once it is
accepted that there was improper service of the letter referred to
above it becomes hard to argue successfully that the confirmation is
not unlawful.
As
regards a prima
facie
right, the applicant, as the owner of the property, he can be said to
have a real right, which right is clearly threatened by the unlawful
confirmation of its sale by the second respondent. With the third
respondent hovering around, the applicant will, without doubt, suffer
irreparable harm once transfer is effected. The balance of
convenience favours the granting of the interdict in that the first
respondent is not likely to suffer prejudice since the default
judgment and the writ of execution will remain intact after the
setting aside of the confirmation order. On the other hand, the
applicant will suffer great prejudice if the order is declined and he
ultimately succeeds in the main action.
I
am aware that as at the time the matter was argued the applicant had
not yet filed an application for rescission of the default judgment.
Without
making a finding on whether or not there is good and sufficient cause
to rescind the default judgment, I must however point out that in my
view, and for purposes of this application, the rest of the documents
were properly served upon the applicant and/or Power Ridge (Pvt) Ltd
at No.8 Aston Road, Donnington, Bulawayo. I believe this is why,
despite his shrill about improper service of the summons and notice
of attachment or writ, the applicant has confined his remedy to the
confirmation proceedings and not the setting aside of the sale.
Clearly,
the second respondent did not comply with Rules 356 and 359 of this
court's rules - which rules are mandatory.
On
the facts of this case, Rule 359 cannot be said to amount to an
alternative remedy because the second respondent has already
confirmed the sale disregarding its provisions.
In
the circumstances, it is ordered that; Pending the finalization of
this matter:
1.
The first and second respondents in this matter be and are hereby
interdicted from transferring the immovable property being Stand No.
64688 Bulawayo Township of Bulawayo Township Lands, measuring 247
square metres.
2.
The third respondent be and is hereby barred from evicting the
applicant from the property described in paragraph 1 above.
