ZHOU
J:
The
applicants' immovable property, Stand 650 Borrowdale Township of
Stand 10 of Lot C Borrowdale Estate, also known as 21B Crowhill
Avenue, Borrowdale, Harare, was attached in execution of a judgment
of this court granted in Case No HC5872/12.
The
judgment was given in favour of the first respondent and against the
applicants. Following its attachment by the Sheriff the property was
advertised for sale in the Government Gazette
as
well as in The Herald newspaper.
An
offer of US$275,000 was made by one David Chawota. The Sheriff did
not declare David Chawota the purchaser on the basis that the price
was too low having regard to the value of the property. The property
was therefore made available for sale by private treaty. The second
respondent's offer to purchase the property by private treaty for a
sum of US$360,000 was accepted by the Sheriff on 27 June 2013.
The
instant application which the applicant filed as one for review seeks
the setting aside of the sale of the property to the second
respondent. The application is opposed by the first and second
respondents.
Applicant
states that it received the letter notifying it of the Sheriff's
acceptance of the second respondent's offer on 15 July 2013. The
letter had a wrong date suggesting that it had been written on 26
June 2013. That clearly is a typographical error as the second
respondent was only declared to be the purchaser on 27 June 2013.
On
15 July 2013 the applicant, through its legal practitioners, wrote a
letter to the Sheriff. The letter stated the following, among other
things:
“We
write to advise that our client objects to the sale/declaration and
that the objections will be delivered within 15 days of the date it
was notified of the sale [i.e. 15 days from the 15th
July 2013]. Our client was only informed of Mirirai Washaya's offer
on the 15th
July 2013 and was not aware of this declaration prior to this date.
In any event you posted the letter with this information on the 2nd
of July a good five days after the declaration had been made.”
On
23 July 2013 the Sheriff notified the first respondent's legal
practitioners that the second respondent had been confirmed to be the
purchaser on that day because no objection had been received.
That
letter also bears a wrong date, as it is dated 23 June 2013.
While
the first mistake is excusable, the officers of the third respondent
must be cautioned to be meticulous in ensuring that appropriate dates
are inserted in all documents which they send out. That is
particularly important given that in respect of certain of their
correspondence there are time frames provided for in the Rules which
are reckoned from the dates that their letters are written. If they
continue to write letters bearing wrong dates with such amazing
regularity then they risk having some of the Sheriff's decisions
being challenged based on confusion created by wrong dates. That
scenario is clearly undesirable. Be that as it may, the applicant
did not lodge an objection with the Sheriff as stated in its letter
of 15 July 2013. Instead, on 30 July 2013 the applicant filed the
instant application for review.
The
grounds for review set out in the applicant's papers are as
follows:
“1.
The Sheriff did not properly advertise the sale as envisaged by Rule
352 of the Rules of this Honourable Court.
2.
In deciding to sell by private treaty, the Sheriff did not comply
with Rule 358(1) of the High Court Rules in that he did not obtain
the consent of the judgment debtors.
3.
The third respondent did not exercise his discretion properly in
terms of the proviso to Rule 359(2) in denying the first applicant
lodge (sic)
its objections late, or at all, to sale.
4.
The Sheriff did not exercise his discretion properly in terms of Rule
358(2) and resultantly did not ensure that the sale and the price
offered by second respondent was (sic)
fair and reasonable.
5.
The declaration that the second respondent was the purchaser was
improperly made, alternatively, was not made at all. The Sheriff's
letter dated 26 June 2013 states that the declaration was made on 27
June 2013, a feat which is impossible.
6.
The Sheriff denied applicants an opportunity to be heard before the
confirmation. This was the viotion (sic)
of High Court Rules and the common law. The first applicant received
the notice to object on 15 July 2013, and the other applicants did
not receive the notice at all. The Sheriff went on to confirm the
sale on the 23rd
July 2013 before the fifteen days expired.”
Order
40 Rule 359 of the High Court Rules, 1971 provides as follows:
“(1)
Subject to this rule, any person who has an interest in a sale in
terms of this Order may request the Sheriff to set it aside on the
ground that –
(a)
The sale was improperly conducted; or
(b)
The property was sold for an unreasonably low price; or
(c)
On any other good ground.
(2)
A request in terms of subrule (1) shall be in writing and lodged with
the Sheriff within fifteen days from the date on which the highest
bidder was declared to be the purchaser in terms of Rule 356 or the
date of the sale in terms of Rule 358, as the case may be:
Provided
that the Sheriff may accept a request made after the fifteen-day
period but before the sale is confirmed, if he is satisfied that
there is good cause for the request being made late.”
The
applicants did not submit a request in terms of Rule 359 for the sale
to be set aside.
Rule
359(3) provides that such a request should set out the grounds upon
which the sale concerned should be set aside. The request must also
be supported by one or more affidavits detailing the facts relied
upon in seeking the setting aside of the sale. There is a requirement
in terms of that subrule for copies of the request to be served upon
interested parties.
Instead
of making the request, the applicants by letter dated 15 July 2013
advised the Sheriff of their intention to file an objection to the
sale within fifteen days from the date of their letter.
The
letter itself does not purport to be a request to have the sale set
aside or an objection to the sale. Neither is it a request for an
extension of the time within which to make the request. Such
extension is provided for in the proviso to Rule 359(2).
The
period of fifteen days passed without the applicants making the
objection to the Sheriff as stated in their letter of 15 July 2013.
The Sheriff proceeded to confirm the sale to the second respondent on
23 July 2013 because no objection was made to the sale; neither was
there a request for an extension of the time within which to make
that objection or request.
It
is clear, therefore, that the application in
casu is
improperly before the court. It is not an application made in terms
of Rule 359(8).
The
failure by the applicant to follow the correct procedure was of the
applicant's own making. There is no provision for the setting aside
of the Sheriff's confirmation of a sale other than by way of an
application filed in terms of Rule 359(8).
The
complaint regarding the advertisement relates to the description of
the property in the advertisement published. But the sale to the
second respondent was not made pursuant to the advertisement. It was
made in terms of Rule 358(2) because the Sheriff was satisfied that
the highest price offered after the public auction was not
reasonable.
In
any event, the advertisement was made on 26 April 2013 and the offer
made at the public auction was made on 3 May 2013. The instant
application was instituted on 30 July 2013, almost three months after
the auction.
An
application for review based on the advertisement and the public
auction would be out of time.
There
is no requirement for the consent of the judgment debtor to be
obtained when the Sheriff is proceeding in terms of Rule 358(2). Rule
358(1) which enjoins the Sheriff to seek the consent of a judgment
debtor applies where a sale by private treaty is considered prior to
a sale by auction.
In
casu
the
sale by private treaty followed after a public auction had failed to
produce a reasonable offer. The applicable Rule is, therefore, Rule
358(2).
The
applicants have not produced any valuation report to show that the
price offered by the second respondent is not fair and reasonable.
The applicants were notified by the Sheriff of the offer by the
second respondent. They therefore had the opportunity to produce a
valuation report on the basis of which they could contest that offer.
In fact, having been aware for many months that their property would
be sold in execution it was incumbent upon the applicants to obtain a
valuation report for the property.
They
did not do that.
The
court cannot accept their unsubstantiated assertion that the price of
US$360,000-00 was unreasonably low.
The
respondents prayed for costs to be awarded against the applicants on
the higher scale of legal practitioner and client on the basis that
the application by the applicants is frivolous and vexatious.
While
the application is without merit, it does not, in my view, constitute
such an abuse of the procedures of this court to warrant a punitive
order of costs. It is a case in which the applicants merely adopted
the wrong procedures to protect their interests and advanced grounds
which, in any event, would not support the setting aside of the sale.
Costs
on the ordinary scale are therefore warranted.
In
the result, IT IS ORDERED THAT:
1.
The application be and is hereby dismissed.
2.
The costs shall be paid by the applicants jointly and severally the
one paying the others to be absolved.
Mabulala
& Dembure,
applicants' legal practitioners
Danziger
& Partners,
first
respondent's legal practitioners
Sawyer
&Mkushi,
second respondent's legal practitioners
