This judgment disposes of two (2) applications.
HC11349/17 is an application made by Puwayi Chiutsi (Chiutsi), a legal practitioner and officer of this court, and, as such, occupying a very privileged position in the justice delivery system, for an order setting aside the confirmation of the sale in execution of his house in Highlands, Harare in pursuance of a judgment of this court granted on 4 November 2014 in favour of Elliot Rodgers, a former client of Puwayi Chiutsi, in the sum of $70,000.
In HC2650/18 is an application for a declaratur brought by Elliot Rodgers against the Sheriff of this court and Puwayi Chiutsi entreating this court to declare that once the Sheriff has issued a determination in terms of Rule 359(1) of the High Court Rules, 1971 the Sheriff is obliged to pass transfer in terms of Rule 361.
The parties agreed to argue the two matters at the same time as they are intricately related and that both be disposed of by one judgment....,.
The facts of this matter, as skilfully presented in the affidavits of Elliot Rodgers, read like a soap opera or a script from an American television legal drama and certainly nothing near reality. Regrettably, it is real.
Sometime in 2012, Ellliot Rodgers sold a piece of land in Mount Pleasant for a purchase price of US$266,000. He instructed Puwayi Chiutsi to attend to the conveyancing aspect of that transaction which exercise entailed the payment of the purchase price into the trust account of Puwayi Chiutsi's legal practice, which goes under the style P. Chiutsi Legal Practitioners of Harare.
Although conveyancing instructions were given to Puwayi Chiutsi in mid-2012, and the purchase price paid to him in August 2012, it was not until 10 September 2013, more than a year later, that he achieved the otherwise simple and indeed clerical task of registering the transfer.
Meanwhile, about February 2013, Puwayi Chiutsi had only paid a sum of $150,000 of the purchase price to Elliot Rodgers, leaving a balance of $116,000. He later tried to appropriate most of it as his fees despite him being entitled to a small fraction of that in terms of the conveyancing tariff.
It is that action which triggered the litigation which has unfolded over the past 5 or 6 years.
The bottom line being that Puwayi Chiutsi did not remit the full purchase price paid to him in trust for onward transmission, less statutory deductions, to Elliot Rodgers. Despite being ordered by this court to pay, a court order granted by consent, he has not paid, meaning that he converted the money to his own use.
As the debt remained unpaid execution was levied.
The Sheriff's forays against Puwayi Chiutsi's movable property yielded negativity and he submitted a nulla bona return. As a result, instructions were given to the Sheriff to proceed against Puwayi Chiutsi's immovable property, being the Remainder of Subdivision C of Lot 6 of Lots 190, 191, 193, 194 and 195 Highlands Estate of Welmoed, also known as 41 Edgewan North, Highlands, Harare (the house).
This happened after execution against Puwayi Chiutsi's movable property had been frustrated by endless unsuccessful interpleader proceedings as real and imagined individuals, including his wife, Clara, lay claims against the properties.
The house was eventually sold by the Sheriff, on 15 September 2016, with Bariadie Investments being declared the highest bidder at the sum of $270,000.
Naturally, Puwayi Chiutsi objected to the sale in terms of Rule 359(1) on a number of grounds, chief among which being that he had filed an application in HC8122/17 which was still pending, and, therefore, in terms of Rule 348A(5d) the Sheriff could not take any further steps regarding the sale.
In strongly worded, and inappropriate language, he accused the Sheriff of conducting “some clandestine consultations” with the Judge who dealt with the matter.
As it turns out, case number HC8122/17 is a chamber application for condonation of the late filing of a Rule 348A(5a) application.
That provision allows an execution debtor, whose dwelling has been attached, to make an application in terms of subrule (5b) for the postponement or suspension of the sale. The application should be made within ten (10) days, and, apparently, Puwayi Chiutsi had not complied. The application in question was opposed and the record shows that it was not prosecuted.
In his objection to the Sheriff, Puwayi Chiutsi also made reference to case number HC8675/17, an application which he made in terms of Rule 449(1)(b) and (2) seeking an order declaring the sale of 15 September 2017 invalid.
It was opposed, and, again, never prosecuted.
He argued that it was irrational for the Sheriff to proceed with the sale. He also challenged the validity of the sale on the ground that the property had not been advertised in terms of the Rules; that the Sheriff had not complied with Rule 348A(2) in that he had not given notice to the Secretary for Local Government; and that the property had been sold at an unreasonably low price. The price was unreasonably low because on the date of the sale there was panic buying of goods by members of the public and that the price for which the property was sold was only equivalent to US$150,000.
He did not elaborate.
The Sheriff heard the objection, and, on 29 November 2017, he dismissed it.
Puwayi Chiutsi would not relent. He filed an application in HC11349/17, Form 29 of which states that it is made in terms of Rule 359(9), presumably meaning subrule (8) because it is the latter subrule which allows any person aggrieved by the decision of the Sheriff to confirm the sale in terms of subrule (7) to apply to this court by way of a court application to have the decision set aside.
Surprisingly, although Puwayi Chiutsi maintains, in his founding affidavit, that the application is in terms of Rule 359, he goes on to say that this is, in fact, an application for review and sets out the grounds for review in paragraph 9 of the founding affidavit - a total of 23 of them.
In summary, he accuses the Sheriff of having “a personal relationship” with Elliot Rodgers, suggesting corruption and of making “incoherent and illogical findings.” He also accuses the Sheriff of failing to control the proceedings during the hearing and being “intimidated” by Elliot Rodger's counsel and having pre-determined the matter among a raft of other accusations.
The sale should not have been confirmed because he was already challenging the attachment of the house in HC649/17. That was another opposed application for the setting aside of the attachment of the house on the ground that the nulla bona return was fraudulent.
While making that claim, other than alleging that it is Elliot Rodger's lawyers who instructed the Sheriff to issue it, Puwayi Chiutsi did not point to any movable property of his available for attachment to satisfy the judgment as would impugn the nulla bona return. It is an application that has been left hanging but whose existence has been used as an excuse to challenge the sale.
Puwayi Chiutsi also complained, bitterly, about being deprived an opportunity to make representations to the Secretary of Housing in terms of section 15(2) of the Housing and Building Act [Chapter 22:07]. He was prevented from doing so because the Sheriff did not notify the Secretary of the attachment of the house.
That accusation is unfounded because, by letter dated 12 July 2017, the Sheriff notified the Secretary, in terms of Rule 348A, that the house had been attached in execution of a judgment of the court. All that Puwayi Chiutsi was required to do was to make representations to the Secretary. The fact that a copy of the letter in question was made available to him late did not prevent him from approaching the Secretary if he so wished.
What is however a strain to the mind is that a complaint about that is being made by a person of the standing of Puwayi Chiutsi in the first place.
The State set up a National Housing Fund in terms of section 14 of the Housing and Building Act [Chapter 22:07] for the purpose of assisting genuine cases of indigency and inability to settle debts by the less privileged citizens of this country who end up losing dwelling houses to execution.
What Puwayi Chiutsi is saying is that he was a candidate for such assistance in terms of which the Secretary should have settled the execution creditor's claim from the National Housing Fund.
Without interfering with the prerogative of the Secretary to settle claims from that fund, I find it extremely difficult to fathom the use of such a noble fund to satisfy or settle a claim arising from the facts of this matter wherein a practising lawyer, entitled to charge quite high fees, in terms of his seniority, would be a beneficiary of a fund such as that provided for in section 14 of the Housing and Building Act.
What is even more repugnant are the circumstances under which the debt arose - from an embezzlement of trust funds entrusted to Puwayi Chiutsi as a conveyancer, by an innocent client.
Out of what may rank as unbridled greed, he then appropriated a large sum of $116,000 of trust funds for his own use as a result of which the judgment sought to be executed was made.
In my view, it would be the height of turpitude to use the National Housing Fund, set up in terms of the Housing and Building Act, as insurance cover for corruption and pilfering by lawyers unable to resist temptation or to practice law in an honest and noble manner.
How can a lawyer, who is shown to have mis-appropriated trust funds in the most despicable manner, seek to shelter under a National Housing Fund designed for genuine cases of inability to pay?
It is unthinkable that someone would want to continue perpetuation this strange sense of entitlement; not only to a client's money, but, also having been caught with his hands deep inside the cookie jar, he regards himself as being entitled to have his misdemeanour's paid for by the State - from taxpayers' money.
The Sheriff heard the objection to the sale which was made in terms of Rule 359(1), a Rule which allows any person who has an interest in the sale to request the Sheriff to set it aside on the ground that the sale was improperly conducted, or that the property was sold for an unreasonably low price, or on any other good ground.
In other words, a party requesting the Sheriff to set aside a sale in terms of Rule 359(1) is confined to the grounds for making the challenge as are permitted by that Rule. By the same token, when considering whether to set aside or confirm the sale upon such a request, the Sheriff is confined to considerations set out in that Rule. See Marfopoulos v Zimbabwe Banking Corporation Ltd & Ors 1996 (1) ZLR 626 (H) in which the point is made with silky eloquence that the rules concerning the sale of properties in execution are meant to strike a balance between the need to protect a judgment debtor who may be unfairly hounded to insolvency and homelessness, on the one hand, and the need to ensure that the judgment creditor, who has been forced to go to court to obtain satisfaction of his debt, secures just relief. It is also crucial to ensure the reliability and efficacy of sales in execution are upheld.
Those are the principles which guide the Sheriff when considering a request to set aside the sale.
His task was made much the more difficult by Puwayi Chiutsi electing to throw everything into the fray with reckless abandon and without regard to the grounds set out in the Rules. In the end, quite a lot of extraneous issues were raised, which weakness continues to afflict the judgment debtor's efforts - even in the present application. In my view, the Sheriff admirably perceived the issues that fell for determination and correctly captured the grounds relied upon by Puwayi Chiutsi as that:
(a) The sale ought to have been stopped in terms of Rule 348A;
(b) The house was not properly advertised;
(c) There was no compliance with Rule 348A(2) relating to notification to the Secretary of Local Government; and
(d) The property was sold at an unreasonably low price.
In his ruling, dated 29 November 2017, the Sheriff impressively dealt with those grounds and rejected them. He drew the conclusion that the sale could not be stopped in terms of Rule 348A because Puwayi Chiutsi had filed his application out of time, without condonation; in the absence of condonation, there was no application at all, and, therefore the sale could not be stopped.
Regarding the advertisement of the sale, the Sheriff noted that it was properly made in terms of the Rules and that even the issue of the notice (Puwayi Chiutsi had argued that the sale was advertised the very same day it was scheduled to take place), the Sheriff noted that the argument was of no moment especially as the sale did not occur on that date but was postponed to a later date.
I have already alluded to the third ground, that of notice to the Secretary of Local Government. The Sheriff's view was that indeed notice had been given in accordance with the Rules. Although the Secretary was notified, she or he did not offer to satisfy the value of the judgment from the National Housing Fund. The matter ended there.
On the house being sold for an unreasonably low price, the Sheriff noted that Puwayi Chiutsi had not proved that assertion. He did not attach any evidence to show that the price was unreasonable. He was mindful that his was a forced sale which invariably attracts a lower price than would be achieved through any other sale.
Puwayi Chiutsi opted to make the application to set aside the Sheriff's decision to confirm the sale in terms of Rule 358(8). In typical Andy Capp style, that cartoon character with a knack for falling into the same canal every night on his way home after a heavy drink, Puwayi Chiutsi fell into the same trap of throwing in every conceivable argument he could find. These included grounds like recusal, which were never placed before the Sheriff whose decision is sought to be impugned. It cannot be challenged on grounds not placed before the Sheriff in the first place.
It has been stated that, like any other decision or proceedings, the decision by the Sheriff to confirm a sale of an immovable property can be taken on review before this court which has review jurisdiction in terms of section 27 of the High Court Act [Chapter 7:06].
In my view, however, where the judgment debtor elects to approach the Sheriff seeking to set aside the sale in terms of Rule 359(1) such a judgment debtor would seem to have an election to approach this court either on review in terms of Order 33 of this court's Rules or to make an application to this court in terms of Rule 359(8) to set aside the decision of the Sheriff to confirm the sale in terms of subrule (7) of Rule 359. Where, however, the judgment debtor elects to proceed in terms of Order 33, by an ordinary review, such a debtor cannot, at the same time, seek to rely on the grounds for challenging the sale set out in Rule 359(1) like the unreasonableness of the price achieved by the sale. He or she would have to rely on the ordinary review grounds set out in section 27 of the High Court Act and other common law grounds. Of course, an approach in terms of Rule 359(8) is not, and cannot, possibly be available to one who has not requested the Sheriff to set aside the sale in terms of Rule 359(1). That one's only recourse is an ordinary review application.
It occurs to me that a judgment debtor cannot combine grounds for reviewing the Sheriff's decision set out in Rule 359(1) and ordinary review grounds as appear in section 27 of the High Court Act and the common law.
In the words of Makarau J…, in Chiwadza v Matanda & Ors 2004 (2) ZLR 203 (H)…,:
“The approach to this court, after a sale in execution has been confirmed, and in the absence of a prior approach to the Sheriff in terms of the Rules, is, in my view, to be based on the general grounds of review as provided for at common law. These would include such considerations as gross unreasonableness, bias, and procedural irregularities but cannot include such grounds as an unreasonably low price or that the sale was not properly conducted as provided for under the Rules unless such can be subsumed in the recognized grounds of review at common law. It is my further view that this, which presents itself to me as the second approach, only obtains after confirmation of the sale but before transfer is effected to the purchaser.”
Unfortunately, the applicant has filed what appears to be a hybrid application which purports to be one made in terms of Rule 359(8) including grounds like an unreasonably low price. He has however proceeded to list grounds for review in his Form 29 as required by Rule 257 as if this is a review application in terms of Order 33. He has gone on to set out grounds which include bias not provided for in Rule 359(1) - and not even argued before the Sheriff.
It is just a maze of confusion.
I accept, as stated by dube j in Nyadindu & Anor v Barclays Bank of Zimbabwe & Ors 2016 (1) ZLR 348 (H)…,;
“The procedure envisaged by Rule 359 is that of a review of the decision of the Sheriff by this court. The court is required to look at the objections raised and test the decision of the Sheriff. Rule 359(8) limits the grounds upon which this application may be brought to those raised in terms of Rule 359(1) as objections. The High Court, sitting as Review Court, cannot enquire into questions that were not raised initially as objections and deliberated on by the Sheriff. A party who has failed to raise an objection at the time he challenged the decision to accept a bid price with the Sheriff cannot raise the objection in an application to set aside the Sheriff's decision to confirm a sale.”
It means that those grounds not raised before the Sheriff, and, therefore, not considered by him in his decision to confirm the sale which is sought to be set aside, cannot be raised for the first time before the court.
In any event, my view is that the only meaningful ground worth further consideration is that relating to the price.
Discussing the issue of the price in Marfopoulos v Zimbabwe Banking Corporation Ltd & Ors 1996 (1) ZLR 626 (H)…, gillespie j said:
“The price achieved is therefore itself taken as a reliable indication of value.
For these reasons, there is recognised an onus upon the challenger to prove that the price so achieved is unreasonably low. A litigant wishing to discharge this burden must be fully prepared with properly supported valuations of the property under consideration. These valuations must reflect the upper and lower limits of the suggested market price so that the court might make a proper determination whether the price achieved is unreasonable, that is to say, that it is substantially lower than would reasonably be anticipated given the expected range of prices. See Zvirawa (supra) at 17 D-E.
The valuations that are commonly produced in such matters frequently tend nowadays to essay an assessment of a forced sale value. This is itself of some assistance to the court, in that one is, by such an opinion, assisted towards a finding as to whether or not the price achieved is what one would expect on a forced sale or unacceptably disproportionate even to such lowered expectations.”
See also Zvirawa v Makoni & Anor 1988 (2) ZLR 15 (S)…,; Success Auto (Pvt) Ltd & Ors v FBC Bank Ltd & Anor HH157-15…,.
The policy of the law on these sales is that sales in execution cannot be undermined by ill refined and non-specific averments as the ones made by Puwayi Chiutsi. The rights of third parties, who would have purchased properties from the Sheriff, should also be protected and cannot be defeated by fanciful arguments as the ones made by Puwayi Chiutsi relating to the rate of exchange between the bond notes and the United States dollar which did not make sense at all. It is not even clear how the issue of that rate comes into it when he does not even suggest that the third party paid the Sheriff in bond notes. He has not even attached any alternative valuations to suggest that the house is capable of being sold at a higher auction price or that the sum of $270,000, for which it was sold, is unacceptable.
I conclude, therefore, that there is no merit in the application....,.
Counsel for Elliot Rodgers submitted that in view of Puwayi Chiutsi's propensity to appeal any judgment without the slightest chance of success as he has done previously, to the prejudice of his client, I must grant an order that an appeal against this judgment shall not suspend the judgment. This obtains from the inherent power of this court to regulate its process and to protect it from abuse.
Counsel for Puwayi Chiutsi did not oppose that request. In fact, counsel for Puwayi Chiutsi opted not to make submissions at all for professional reasons.
The conduct of Puwayi Chiutsi throughout this sordid affair is one not for the faint-hearted and certainly cannot be defended by any self-respecting legal practitioner, let alone an advocate of this court.
Puwayi Chiutsi has torn into smithereens every rule of ethics and professionalism on which those that occupy the privileged position of practicing law pride themselves with. Not only has he conducted himself in a dishonourable and unworthy manner by misappropriating trust funds, he has not shown any contrition at all as he has stood neck to neck and eye-ball to eye-ball with a client from whom he snatched a large sum of money for a lengthy period of time as he employed every trick in the book to avoid paying what he unlawfully took from a client. He has been an unwelcome but very regular visitor to the precincts of this court with countless but frivolous applications which he has disdainfully pursued with no other intention but to perpetuate an injustice.
There is merit in the application made by counsel for Elliot Rodgers.
This court has to protect not only its integrity but also the good name of the profession that has endured a battering of gigantic proportions at the hand of one of its own who appears to have completely lost self-respect and the respect of the profession, and, indeed, the courts.
The order to be made must come with a signature award of costs on a legal practitioner and client scale....,.
