Application
for Summary Judgment
MAKONESE
J: The
applicant purchased House Number 24733 Gundwane Road, Pumula North,
Bulawayo, at a public auction on 2 October 2013. The sale was
conducted by the Deputy Sheriff Bulawayo pursuant to a judgment debt
against respondent involving a third party.
The
applicant duly paid the purchase price in the sum of US$12,000 and
the Deputy Sheriff proceeded to effect cession of the property into
applicant's names. The rights title and interest to and in the
property have been transferred to the applicant.
The
respondent has refused to vacate the property and is not paying
rentals to the applicant.
Applicant
issued summons against respondent on 22 September 2014 seeking
respondent's eviction and all those claiming occupation through him
from the property.
The
respondent entered appearance to defend on 8 October 2014.
Applicant
has filed this application for summary judgment contending that
respondent has no bona
fide
defence to her claims and that appearance to defend has been entered
for the sole purpose of delay.
Applicant
avers that she has a clear and unanswerable claim. The property was
lawfully purchased and she has received transfer of all the rights,
title and interest in and to the property. Further, the applicant
contends that the respondent failed to challenge the validity of the
sale, which was duly confirmed by the Deputy Sheriff.
In
her papers in opposition, respondent alleges that he has a valid
defence to the applicant's claims.
Respondent
confirms that the property in issue was sold at a public auction in a
sale in execution. Respondent alleges that when the process of
attaching the property was underway he was away at his rural home in
Silobela. He was not aware that summons had been issued against him
and that a writ of execution against his immovable property had been
issued. He only became aware of the sale in execution in October 2013
when the applicant informed him that she had purchased the property.
Respondent
states that he has filed an application to rescind the default
judgment obtained against him.
The
application for rescission of judgment was filed in December 2012. No
further explanation is forthcoming from the respondent regarding the
fate of that application for rescission of judgment.
Respondent
alleges that he has a defence against the action brought against him
by one Moses Mazithulela which resulted in the default judgment and
the sale in execution. Respondent further alleges that respondent
filed an application for rescission of judgment before applicant
purchased the property.
A
bold averment is made by the respondent that applicant must have been
aware of the respondent's application for rescission of judgment
and that she took a risk in purchasing the property at a public
auction.
Analysis
of the Law
It
is my view that an innocent party who purchases a property at a
public auction duly advertised by the Deputy Sheriff and who lawfully
purchases a property and fulfills all the conditions of sale by
paying the purchase price and subsequently receiving transfer is
entitled to the protection of the law.
The
innocent purchaser should not concern himself with the dispute
between the debtor and the creditor which results in the sale in
execution.
By
its very nature, a sale in execution in pursuance of a debt is a
mechanism designed to compel a debtor to fulfill his obligations. The
sale is not conducted voluntarily but under the force of the law. The
debtor will invariably seek to escape the inevitable consequences of
the sale in execution by seeking a rescission of judgment or
challenging the validity of the sale.
The
legal position regarding the rights of parties after a sale has been
conducted, and confirmed by the Deputy Sheriff, and where transfer
has already been effected to the third party was canvassed in the
case of Chiwadza
v
Matanda
and Others 2004
(2) ZLR 203 (H).
In
this matter MAKARAU (J), held that after the sale has been confirmed
and transfer has been effected to the purchaser, an interested party
may still approach the court at common law to have the sale set
aside, but not on the grounds of alleged violations of the rules of
court nor on the general grounds of review at common law. The sale
cannot be impeached in the absence of an allegation of bad faith, or
knowledge of prior irregularities in the sale, or fraud. This is so
because of the protection our legal system affords the innocent third
party in commercial transactions.
See
also the case of Mupedzamombe
v
Commercial Bank of Zimbabwe and Another
1996 (1) ZLR 257 (S).
WHETHER
APPLICANT HAS MADE A CASE FOR SUMMARY JUDGMENT
In
making an application for summary judgment, the applicant is required
to verify his cause of action and state that in his belief the
respondent has no bona
fide
defence to the action.
In
terms of Order 10 Rule 64(2) and (3) of the High Court Rules, 1971,
the applicant has attached an affidavit supported by documents which
indicate that the applicant purchased the property at a public
auction. The documents further confirm that the applicant paid the
required purchase price. The documents further indicate that title in
respect of the immovable property has been effected into the
applicant's names.
The
applicant has indeed verified the cause of action. The applicant has
made out a clear case that she has lawfully acquired the right to the
use and enjoyment of the property in dispute. She is the lawful owner
of the property.
WHETHER
RESPONDENT HAS RAISED A BONA
FIDE
DEFENCE TO THE CLAIMS
In
determining an application for summary judgment, the test is whether
the respondent is bona
fide
in advancing his defence and whether it can possibly succeed.
Further, the balance of prejudice has to be in respondent's favour.
In
the case of Jena
v
Nechipote
1986 (1) ZLR 29 (SC), the court stated that all that the defendant
has to establish in order to succeed in having an application for
summary judgment dismissed is that:
(i)
there is a mere possibility of success.
(ii)
he has a plausible case.
(iii)
there is a triable issue.
(iv)
there is a reasonable possibility that an injustice may be done if
summary judgment is granted.
The
respondent does not satisfy any of the above requirements.
The
respondent has neither challenged the validity of the sale nor
challenged the rights of the innocent purchaser. The respondent is
required to allege facts which if proved at the trial would entitle
him to succeed in his defence. Although the respondent does not have
to set out the facts exhaustively he must set out material facts upon
which his defence is premised with sufficient clarity to allow the
court to decide whether these facts constitute a valid defence to the
claim. It is not sufficient for respondent to advance vague
generalisations and bald and sketchy details. See the case of Hales
v
Doverick Investments (Pvt) Ltd
1998 (2) ZLR 235 (H).
The
respondent, in my view, does not have a bona
fide
defence to the applicant's claims.
The
facts which led to the house being sold in execution have nothing to
do with the applicant who is an innocent purchaser. I have already
set out the legal routes available to an individual whose property
has been sold in execution and where transfer has already been
effected into the names of the innocent purchaser. If the respondent
was diligent enough he should have made an urgent application to stop
the sale of the property.
He
failed to do so.
Even
so, after the sale was conducted, the respondent could have made an
application for the sale not to be confirmed.
The
respondent did not do so.
The
story by respondent that he did not receive the summons is
unbelievable, regard being had to the fact the sale was advertised in
the newspapers as required by law. The application for rescission of
judgment, which respondent seems not very keen to conclude has no
effect on the application for summary judgment. The respondent has no
legal basis to justify his continued occupation of the house, rent
free.
I
have no difficulty in concluding that respondent has no recognizable
defence, neither are there any triable issues. The respondent's
defence is a delaying tactic which is designed to frustrate the
applicant from taking over occupation of the property. The
plaintiff's claim is unanswerable and she is entitled to summary
judgment with costs on a punitive scale:
I
accordingly order as follows:
1.
Respondent be and is hereby ordered to vacate the premises at Stand
24733 Gundwane Road, Pumula North, Bulawayo, and all those claiming
occupation through him, forthwith.
2.
Respondent pays the sum of US$200.00 (two hundred dollars) being
monthly rentals from 10 December 2013 to date of eviction.
3.
Respondent pays costs of suit on an attorney and client scale.
Mlweli
Ndlovu and Associates,
applicant's legal practitioners
Samp
Mlaudzi and Partners,
respondent's legal practitioners
