The applicants seek a provisional order in the following terms:

“Terms of the final order sought

That you show cause why a final order should not be granted in the following terms:

1. The sale in execution of immovable property, namely, Lot 8 of Lot 37A Lochview situate in the district of Bulawayo measuring 5,427 square metres in pursuance of the judgment under case number HC237/11 be and is hereby stayed pending the final determination of case number HC221/12 and the subsequent applicant for suspension of sale of an immovable property.

2. The 1st respondent pays the costs of this application.

Interim order granted

That pending the final determination of this application, it is ordered that:

3. The 1st and 2nd respondents, or any of their authorized officers, be and are hereby ordered to stop the sale in execution of the immovable property described in paragraph 1 herein pending the final conclusion of this application.”

The salient facts of the matter are the following:

On or about 5 November 2009, at the instance and request of CMS Leather (Pvt) Ltd trading as Footwear and Rubber Industries (“Footwear and Rubber Industries”), the first respondent lent/and advanced a sum of US60,000 to the former. That loan was secured by a special hypothecation over Lot 8 of Lot 37A Lochview (“Lot 8”) also known as Number 3 Hill Road Lochview, Bulawayo. The applicants were also guarantors to the loan, and, to that effect, signed unlimited guarantees in favour of the first respondent.

Based on the agreement between the parties, a bond was registered over Lot 8 with the consent and acceptance of the applicants which bond provided for foreclosure proceedings should the loan remain unpaid.

On the basis of that, the loan was then disbursed to Footwear and Rubber Industries.

When Footwear and Rubber Industries defaulted, the first respondent called up the bond and issued summons against the guarantors in January 2011 claiming the sum of US$73,447=69 with interest at the rate of 42,5% compounded daily and an order declaring Lot 8 executable.

The applicants filed an appearance to defend on 10 February 2011 leading to an application for summary judgment on 28 March 2011. That application was not opposed, and, on 21 April 2011, judgment was granted in favour of the first respondent against the applicants.

On 18 July 2011, Lot 8 was attached by the Deputy Sheriff pursuant to a warrant of execution that had been issued by the first respondent.

Thereafter, the applicants approached their erstwhile legal practitioners. Nothing was done by the applicants from July 2011 to December 2011. The applicants only sprung into action on 15 December 2011 when they saw that Lot 8 was advertised for sale for 16 December 2011.

They filed an application in terms of Rule 348A(5a) to suspend and/or stop the sale on the basis that a reasonable offer had been made of US$1,500 a month with effect from 31 December 2011 and that the sale would cause undue hardship to them.

That application was opposed the very next day as it was improperly before the court.

The sale was however cancelled by the Deputy Sheriff for some other reason unrelated to that application. That application was withdrawn by the applicants on 3 January 2012.

Thereafter, Lot 8 was once more advertised for sale by the Deputy Sheriff on 5 January 2012 for 27 February 2012.

From 5 January 2012 to 20 January 2012, the applicants did nothing. It was only on 20 January 2012 that they filed an application for condonation for the late filing of their intended application in terms of Rule 348A(5a). The application was served on the first respondent on 20 January 2012.

On 24 January 2012, the present urgent chamber application was issued and served on the first respondent.

The first respondent raised points in limine which I propose to consider in turn.

(i) The first point is whether the application is urgent.

The applicants seek an interdict under a certificate of urgency. In CABS v Ndlovu HH03-06, CHATUKUTA J rightly pointed out that:

“Applicant is required to satisfy the court that irreparable harm may be suffered by the applicant if the matter is not dealt with urgently and that applicant should have treated the matter urgently.”

See also Triangle Ltd v ZIMRA HB12-11 and Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

It is not the arrival of the date of reckoning that matters.

As alluded to above, the applicants were served with the notice of execution on 18 July 2011. The latter was, therefore, the time to act. They did nothing from July until 15 December 2011. They only acted a day before the date of the advertised sale.

When the sale was cancelled, they once more did nothing until 3 January 2012 when they withdrew their flawed application of 15 December 2011. They did not simultaneously, or soon thereafter, file another application until the first respondent re-advertised the sale of Lot 8.

After the latter sale was advertised, on 5 January 2012, they waited for several days before filing the current application on the eleventh hour.

It is evident that all along the applicants were acting in snail's pace, so to speak, and were only prompted into action by the arrival of the date of reckoning. They simply did not treat their matter urgently.

The attempt to blame their erstwhile legal practitioners is not helpful as such dilatoriness persisted even under the current legal practitioners.

The applicants have all along been represented by legal practitioners and even brief an advocate at some point yet there was no urgency shown on their part. There is no explanation proffered for the non-timeous action: Kuvarega v Registrar General 1998 (1) ZLR 188 (H) and Mutizhe v Ganda & Ors SC17-09.

In the absence of such acceptable explanation, the matter cannot be treated as urgent whatever the prospects of success may be: see also Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A)…, and Viking Woodwork (Pvt) Ltd v Bluebells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,.

Taking all the above factors into consideration, the applicants failed to make a case for the matter to be dealt with urgently.

On this point alone, without going into the merits, the application is dismissed with costs.

In respect of a court ordered public auction sale under the auspices of the Sheriff of Zimbabwe, Rule 356 of the High Court Rules provides as follows:

"356 Declaration of Purchaser by Sheriff

If the Sheriff is satisfied that the highest price offered is reasonable, having regard to the circumstances of time and place and to the state of the property market, and that the sale was properly conducted, he shall declare the highest bidder to be the purchaser, subject to confirmation as hereinafter prescribed."

The Sheriff, after rescinding his previous determination, proceeded to declare Bernard Construction the purchaser of the property in terms of Rule 356 of the Rules.

On..., the appellants filed an objection to the Sheriff's declaration of Bernard Construction as the purchaser. The appellant's objection was in terms of Rule 359 of the Rules (as amended by S.I.80 of 2000).

The relevant part of Rule 359 of the Rules (as amended) provides as follows:

"359 Confirmation or Setting Aside of Sale

(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 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.

(3) A request in terms of subrule (1) shall-

(a) Set out the grounds on which, according to the person making the request, the sale concerned should be set aside; and

(b) Be supported by one or more affidavits setting out any facts relied on by the person making the request; and copies of the request shall be served without delay on all other interested parties.

(4)...,.

(5)...,.

(6)...,.

(7) On receipt of a request in terms of subrule (1) and any opposing or replying papers in terms of this Rule, the sheriff shall advise the parties when he will hear them and, after giving them or their legal representatives, if any, an opportunity to make their submissions, he shall either-

(a) Confirm the sale; or

(b) Cancel the sale and make such order as he considers appropriate in the circumstances;

And shall without delay, notify the parties in writing of his decision.

(8) Any person who is aggrieved by the Sheriff's decision in terms of subrule (7) may, within one month after he was notified of it, apply to the Court by way of a court application to have the decision set aside,

(9) In an application in terms of subrule (8), the Court may confirm, vary or set aside the Sheriff's decision or make such other order as the Court considers appropriate in the circumstances.

(10) Where no request has been lodged with the Sheriff in terms of subrule (1) within fifteen days from the date on which the highest bidder was declared to be the purchaser in terms of r356 or the date of the sale in terms of Rule 358, as the case may be, he shall, subject to the proviso to subrule (2), confirm the sale."

The applicant is one of the two people who signed an acknowledgement of debt as sureties and co-principal debtors on 6 April 2009 binding themselves for a loan advanced by the first respondent to Balemu Safaris (Pvt) Ltd. The applicant also consented to the registration of a mortgage bond against her title to Stand 108 Mahatshula Township of Stand 1 Mahatshula Township Bulawayo as security for the debt.

When the debt was not liquidated, the first respondent took judgment against the applicant and two others on 26 February 2010. Subsequent to that, the applicant was served with a writ of execution and notice of judicial attachment of her Stand 108 Mahatshula Bulawayo on 13 May 2010. The sale of that property was originally scheduled to take place on 27 August 2010 but was cancelled after the applicant had made an offer to settle the debt together with other charges by 30 November 2010. The papers show that the applicant paid part of the money owed but did not clear all that was outstanding by 30 November 2010. Up to now, the debt has not been cleared. Finding itself with no other option, the first respondent instructed the Sheriff to proceed with the sale of the applicant's dwelling house in order to recover what remained outstanding. A new date of sale, being 24 June 2011, was set by the Sheriff.

Stung by that turn of events, the applicant launched the present application on 17 June 2011. The application is purportedly made in terms of Order 40 Rule 348A of the High Court of Zimbabwe Rules, 1971. She seeks an order suspending the sale of the house on the pain of her paying US$500= per month with effect from 1 July 2011 until the outstanding debt is liquidated. She also seeks an order directing the first respondent to produce a breakdown of what remains owing to facilitate its settlement in monthly instalments of US$500= per month aforesaid.

The first respondent has strongly opposed the application as lacking in merit.

In any event the first respondent paid to the judgment creditor through other means and not from the proceeds of the sale.

In sales in execution, the responsibility of officers of execution is first to the judgment creditor and secondly to the debtors. See Maparanyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 325 S...,.

If the first respondent paid the judgment creditor, could the second respondent still proceed with the sale?

Having considered the above, it is my view that the first respondent has alleged facts which disclose a defence. In the result I will make the following order-

The applicant seeks an order in the following terms:

“It is ordered that:

1. The sale in execution of the said dwelling, being Stand 2096 Bulawayo North of Bulawayo Township, Bulawayo held under Deed of Transfer Number 1563/2006 be and is hereby suspended until the fulfillment of the debt by way of payment of GBP800= per month with effect from the 30^th of August 2011.

2. The 2^nd respondent be and is hereby ordered to put in abeyance the sale in execution pursuant to paragraph 1 above and in terms of Order 40 Rule 348a.

3. The 1^st respondent pays costs on an attorney-client scale if the relief sought is opposed.”

The background facts are the following.

In or about June 2006, at the special instance and request of the applicant, the first respondent lent and advanced to the applicant a sum of GBP28,659=25 (Twenty eight thousand six hundred and fifty-nine  British Pounds and twenty-five pence). As security for the loan, the first respondent specially hypothecated certain immovable property as a first mortgage, being Stand 2096 Bulawayo North of Bulawayo Township, Bulawayo otherwise known as Number 12 Plummer Street, Northend, Bulawayo. The said loan was payable by way of instalments as stipulated by the first respondent from time to time but at any rate, within a period of five (5) years, that is, on or before the 2^nd July 2011.

The applicant failed to pay the instalments due since 2008, and, as a result, on the 25^th November 2010, the first respondent issued summons against the applicant claiming a sum of GBP22,898=98 plus interest thereon and an order declaring the Northend house specially executable.

On the 6^th December 2010, through her current legal practitioners of record, the applicant entered appearance to defend. Thereafter, on the 12^th January 2011, the first respondent filed an application for summary judgment and served it on that same day on the applicant's legal practitioners of record.  On the 21^st January 2011, a roundtable conference of the parties was held at the first respondent's legal practitioners where all outstanding issues were clarified and the applicant was left in no doubt as to what was owed. On the 27^th January 2011, as shown in annexure “E1” to this application, the applicant made an offer to pay an unquantified “substantial” deposit within three (3) months and to pay off the whole balance outstanding by 2^nd July 2011. Because the initial deposit was unquantified, a counter offer was proposed to the applicant, as shown in annexure “E2”, on the 31^st January 2011; and, despite the applicant stating that they would revert to the first respondent by 18 February 2011, the applicant never did so. After warning the applicant that summary judgment would be proceeded with, as shown in annexure “D1” and “D2”, the first respondent obtained judgment against the applicant and subsequently issued the warrant of execution. Faced with the warrant of execution and the attachment of the Northend house, the applicant filed this application in terms of Order 40 Rule 348A(5a) of the High Court Rules 1971, on the 2^nd  August 2011.

On the 5^th August 2011, the respondent opposed the same. 

It is significant, as well as common cause, that since 2008 the applicant has not paid any instalment to the first respondent to date. In other words, not only has the applicant failed to pay the instalments as per her offer on 27^th January 2011, she has failed to liquidate the whole balance due by the 2^nd July 2011 and/or to pay even a penny towards what she owes.

Rule 348A (5a) provides:

“5a Without derogation from sub rules (3) to (5), where the dwelling that has been attached is occupied by the execution debtor or members of his family, the execution debtor may, within ten days after the service upon him of the notice in terms of Rule 347, make a chamber application in accordance with sub rule (5b) for the suspension of –

(a) The sale of the dwelling concerned; or

(b) The eviction of its occupants.”…,.

Masendeke v CABS 2003 (1) ZLR 65 (H).

In casu, the Northend property was laid under judicial attachment on the 8^th July 2011. This application was filed on 2^nd August 2011, i.e. well after the expiry of the ten days stipulated in Rule 348A(5a) above.

On this point alone, it would seem the application is not properly before me.

Be that as it may, this point was not averred so I will determine the application on the points raised in the papers and during the hearing.

In my humble view, execution of mortgaged property is different from the property being referred to in Order 40 Rule 348A.

The difference is that we are dealing here with foreclosure proceedings.

In foreclosure proceedings, the security which the mortgagor pledged is the one that is sold after institution of judicial proceedings for the amount of the debt, where, after a writ of execution against the property is issued. In other words, if the mortgagor does not pay the capital when due, or if he commits any breach of the conditions of the contract entitling the mortgagee to foreclose then the latter is entitled to have the secured property sold and obtain the amount of his debt from the proceeds of the sale – Benson v Hirschlorin 1936 NPD 277. A mortgagor cannot claim a stay of execution in terms of Rule 348A supra. It has to be noted that as a general rule a creditor who has obtained judgment is entitled to enforce such judgment by levying execution and the court has no jurisdiction to restrain the judgment creditor from enforcing such legal right – Sabena Belgian World Airlines v Vas Elst 1981 (1) SA 1235 (T) and South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)…,. Rule 348A should be viewed as an exception to this general rule.

In casu, in the summons and the summary judgment application, the first respondent specifically sought an order allowing it to sell the Northend house. The applicant was served with all those processes and she was legally represented. She could have defended the matter - even on that aspect alone. She did not. On 3^rd March 2011, this court acceded to the prayer sought by the first respondent and ordered that the Northend house be sold. Having made an order directing the sale of the house, the applicant, cannot now bring an application in terms of Rule 348A(5a) stopping the sale on the basis she has made a reasonable offer. She is thus precluded from doing so as allowing the application would have the effect of rescinding, through the back door, the order that has been made by a competent court. By declaring the house “specially executable” the court has given the first respondent the right to sell the house in execution to recover what is owed to it. The mortgagor's first and foremost duty is to pay the debt secured and the mortgagee's corresponding right is to “call up” or “foreclose” the bond….,.

The situation in casu was not the one contemplated by the legislature in drawing Rule 348A(5a). It is different from an ordinary debt as this one is inexorably tied to the house which has been declared by the court order to be specially executable. The only interpretation that makes sense, rather than a mockery of justice, is one which says Rule 348A is not applicable to foreclosure proceedings. In this regard I am guided by what McNALLY JA said in S v Kachipare 1998 (2) ZLR 271 (S)…, –

“I take the view that one is entitled to look closely at the wording of the section in order to find an interpretation which achieves sense rather than injustice, in the application of the section in a situation almost certainly not contemplated by the legislature. This must be specially so in a statute which deals with procedure rather than with substantive law.”

For these reasons the application must fail.

Accordingly, the application is dismissed with costs on this preliminary point.

On the merits, the applicant justified the confirmation of the sale on the basis that the objections were lodged out of time and are of no force and effect. The matter said to be pending is therefore a nullity as the objections were made after the sale was confirmed. The applicant maintained that the respondent did not file any opposition to the auction of his property and the sale was properly confirmed. There is nothing to show that an application was made to set aside the sale in terms of Rule 359. The allegation that the matter is pending before the courts does not suffice. The court was urged to consider that in practice once a sale is confirmed and transfer effected to the purchaser courts are reluctant to set aside such sales. The court was referred to the case of Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 for that proposition. The applicant contends that she is the lawful owner of the property and the respondent has no lawful right to continue occupying the house.

On the merits, counsel for the respondent submitted that although the respondent has not yet filed an application to set aside the sale in terms of section 359 of the Rules it has filed objections with the Sheriff of Zimbabwe. He urged the court to consider that the sale giving rise to the transfer of the property to the applicant was objected to. This application cannot be granted whilst the main matter that gave rise to the default order is still pending. An application for rescission of judgment still has to be determined and it has prospects of success. The Sherriff of the High Court wrote to the respondent in October 2011 indicating that he would set down the objection and the matter has not been set down since then. There is a likelihood that the court will set aside the sale despite that it has been confirmed. To uphold the application for eviction before the finalization of the main matter would defeat the purpose of litigation. If the application for eviction were to be granted, this would defeat the pending matter. Evicting the respondent at this stage would cause extreme hardship on the respondent and his family as they would be rendered homeless….,.

Counsel for the respondent urged the court, in considering whether or not to order the ejectment of the respondent from the property, not to turn a blind eye to the irregularities that vitiate the sale or transfer of the property. He submitted that the Sheriff violated the provisions of Rule 347 which requires that a notice and writ of execution be served on the owner of the property. The respondent also took issue with the failure by the Sheriff to give notice of the attachment and imminent sale to the secretary of the Ministry responsible for the administration of Housing and Building Act [Chapter 22:07] in terms of Rule 348A(5a).

Counsel for the respondent contented that there are grounds for objection to the sale in that the property was sold for $160,000= when its value is placed at $250,000=. That there are good grounds for setting aside the sale if the respondent was to file that application. That for these reasons and that there is an application for rescission of judgment, the court cannot exercise its discretion to evict the respondent from the premises. That the failure of the Sheriff to comply with the Rules cannot be ignored.

The respondent erroneously supposes that he can challenge the confirmation of the sale through an application for eviction.

That is not so.

This is an application for the setting aside of the decision of the Sheriff of Zimbabwe to confirm a sale in execution in respect of the Remainder of Lot 330 Block B Hatfield of Hatfield Estate otherwise known as Number 6 Wenlock Road, Hatfield, Harare .

The application is brought in terms of Order 40 Rule 359(1) of the High Court Rules, 1979.

The applicant is the owner of the property in issue. The first respondent is the Sheriff of the High Court of Zimbabwe. The second respondent is Central Africa Building Society. The facts of this matter are summarised in the applicant's founding affidavit as follows:

Sometime in August 2009, the applicant borrowed $45,000= from the second respondent against security of a mortgage bond over the applicant's residential property registered in favour of the respondent. The applicant failed to repay the loan. The second respondent sued the applicant and obtained a judgment from this court and a writ of execution was issued. The amount of the judgment debt was $49,858=57. The applicant's residential property was attached and the house subsequently sold by public auction for $81,000=.The second respondent was declared the purchaser. The applicant filed objections which were dismissed by the Sheriff of Zimbabwe. On 3 May 2011, the Sheriff of Zimbabwe confirmed the second respondent as the highest bidder at $81,000=.

The applicant seeks an order settling aside the sale and an order that the Sheriff of Zimbabwe be directed to conduct another sale in execution.

The applicant objects to the sale on the basis that the sale was improperly conducted, and, further, that the property was sold for an unreasonably low price. The applicant takes issue with the fact that the property was advertised from 22 February 2011 to 2 March 2011.He contends that this period was too close to the date of the sale resulting in many people who would have been prospective purchasers failing to come to inspect the property and thus did not take part in the auction. The only person that inspected the property and subsequently bought it is the second respondent.

It was the only bidder.

The applicant further asserts that the property was inadequately and misleadingly described in the advertisement. The applicant submitted that the advertisement stated that the property was held under Deed of Transfer Number 1793 when that is the mortgage bond number. The main dwelling house is described as having 3 bedrooms whereas it has 5 bedrooms. That the following description of the house was omitted;

1. All rooms are carpeted.

2. There are floor tiles in all the bathrooms, passages, kitchen and pantry.

3. There are two boreholes and two water tanks in the property and not one of each as mentioned in the advertisements.

4. There is a big fowl run with a capacity to hold 1000 chickens.

5. There is a second house on the property.

The applicant stated that there is a second house on the property with five bedrooms and not three. There is no cottage as advertised. The applicant contends that the advertisement was inadequate as it omitted to refer to matters which had a direct bearing on the value of the property and that this potentially affected the interest which prospective purchasers could have developed.

The applicant further avers that the price at which the property was sold was unreasonable and substantially lower than the market price. The applicant engaged his own valuators who placed the market value of the property at $140,000= and $105,000= as the forced sale value. The applicant contends that the purchase price of $81,000= is unreasonably low in relation to the forced sale value as assessed by the independent valuators.

The second respondent is opposed to the application and asserts that all the formalities were complied with by the auctioneer. The second respondent's submissions may be summarised as follows;

(i) The sale was advertised three times.

(ii) Rule 352 has no time specifications as to when such advert must be made.

(iii) The advertisements described the property and its location in detail .They contained sufficient information required to attract potential purchasers.

(iv) The auctioneer relied on a report from the valuations pegging the market value of the house at $95,000= and the forced sale value at $67,000=.

(v) The valuation by the applicant's valuators is inflated.

(vi) The house was not sold for an unreasonably low price.

(vii) The debtor was given an opportunity to bring a buyer offering a higher purchase price and failed to do so and that the failure is due to the fact that there are no buyers in the market willing to pay the price suggested by the judgment debtor.

The grounds upon which the applicant is entitled to have the sale set aside are listed in Order 40 Rule 359(1). Rule 359(1) reads as follows;

“359. Confirmation or setting aside sale

(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 on any other good ground.”

The courts will not lightly set aside a judicial sale which has been confirmed as this may discourage people from participating in judicial sales. In Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S)…, GUBBAY CJ stated as follows;

"Before a sale is confirmed in terms of Rule 360, it is a conditional sale and any interested party may apply to court for it to be set aside. At that stage, even though the court has a discretion to set aside the sale in certain circumstances, it will not readily do so. See Lalla v Bhura 1973 (2) RLR 280 (G) at 283A-B. Once confirmed by the Sheriff in compliance with Rule 360, the sale of the property is no longer conditional. That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of Rule 359 for it to do so. See Naran v Midlands Chemical Industries (Pvt) Ltd SC220-91 (not reported) at pp 6-7."

The onus rests on the applicant to show that the sale was improperly conducted or that the property was sold at an unreasonably low price or any other ground.

The requirement to advertise the sale is provided for in Rule 352 .The Rule reads as follows.

“352. Day and place for sale: appointment: advertisement: notice to holders of mortgage

The Sheriff shall appoint a day and place for the sale of property, such day being, except by special leave of the court, not less than one month after service of the notice of attachment upon the execution debtor; and he shall cause the sale to be advertised at least once in the Gazette and in a newspaper circulating in the district in which the property is situated and in such other manner as he may deem to be necessary. The sheriff shall also send to each holder of a mortgage over the property, by registered letter addressed to his last known address, or to his attorney, notice of the date and venue of the sale.”

The Rule places a duty on the Sheriff to advertise the property at least once in the Gazette and once in a newspaper circulating in the district in which the property is situated. The sale was advertised on three separate occasions being, the 23^rd, 27^th, and 2^nd of February 2011, over a period of about 10 days. The sale was conducted on the 3rd of March. The Rule does not specify when the advertisements must be made in relation to the sale date. Rule 352 places a duty on the Sheriff to advertise only once.

That was done.

Whether the advertisements were adequate and proper and sufficiently informed the public of the property being sold is the next question.

What is implied from Rule 352 is that the sale must be properly advertised. In Chizikani and Anor v Central African Building Society 1998 (1) ZLR 371, the court allowed an application to set aside a sale on the basis that the advertisements were inadequate. Two advertisements were made in this sale. The first advertisement listed only the address of the property to be auctioned and the date of auction. A subsequent advertisement described the type of rooms available and gave the impression that there was one cottage instead of two. The court dealt with the question of the adequacy of advertisements and held that:

“An advertisement which inadequately describes the property is no advertisement at all. It will fail to comply with the Sheriff's mandate obligation. The purpose of properly describing the property is not merely to identify it. It is also to inform the public of what which is being sold, with the aim of attracting the interest of potential purchasers to the auction…, for it is in the interests of the judgment debtor, and probably in the interests of creditors, that the property to be sold should obtain as high a price as possible.”

The court, in that case, remarked that what must be inserted in the advertisements are the main characteristics of the property. The court found that the advertisement of the sale was inadequate as it did not give sufficient details of the nature and characteristics of the property enabling potential purchasers to get a clear appreciation of the property. GUBBY CJ emphasized the need for an advert in its description of the property, to state the address, size of the Stand, type of improvements or buildings, if any, and any special privilege related to the property.

In this case, a number of features of the property were omitted. The anomaly regarding the Title Deed is minor and not material and could not have affected the outcome of the sale. The main house is described as having three bedrooms when it has five (5) bedrooms. The advertisement gives out that there is a cottage when there in actual fact is a second house with five (5) bedrooms .There are two boreholes on the property. The advertisement only mentioned one borehole and did not indicate that these were fitted with tanks. The size and improvements on a property have a bearing on the value of the property. In this day of epileptic water supplies, it is important to inform interested parties of the existence of supplementary sources and substitute water supplies in the form of boreholes. The existence of two boreholes on a property is likely to generate more interest in the property than where there is one borehole. The chicken run with a capacity to carry one thousand chickens was not highlighted.

There is no doubt in my mind that the advertisement was inadequate. I do not think that the objective of informing the public of what was being sold with a view to attracting the interest of potential purchasers to the auction was achieved. The purpose of advertising is to ensure that all interested parties get to know of the sale. They must get sufficient notice of the sale. An advertisement in a sale in execution should give a full and complete description of the property concerned.

I am not satisfied that this is the case here.

In Chizikani and Anor v Central African Building Society 1998 (1) ZLR 371, the court, following the case of South African Appellate Division in Messenger of the Magistrate's Court, Durban v Pillay 1952 (3) SA 678 (A), found that the provisions of Rule 352 are peremptory and entitle the applicants to have the sale set aside. The term “shall cause the sale to be advertised” implies that the advertisement must be adequate and proper.

I am aware of the sentiments expressed in Lalla v Bhura 1973 (2) RLR 280 (G) where the court remarked that;

“One would have expected here that anyone interested in buying the property would not have been misled by the statement in the brochure but would have made his own enquiries.”

This approach places a duty on potential buyers to go to the property and view the property. One has to consider that the provision is mandatory; a failure by the Sheriff of Zimbabwe to describe the property adequately or properly invalidates the sale.

The application is allowed. 

It will not be necessary for the court to decide whether the price at which the property was sold is reasonable.

In the result, it is ordered as follows;

1. That the decision of the Sheriff for Zimbabwe handed down on 3^rd May 2011 under Case No. SS17/2011 to confirm the sale in execution held on 4^th March 2011 in respect of the applicant's immovable residential property be and it is hereby set aside.

2. That the Sheriff for Zimbabwe is hereby ordered and directed to conduct another sale in execution in terms of the Rules of this Court in relation to the applicant's immovable property which is presently under judicial attachment.

3. That second respondent is ordered to pay the costs of this application.

On the date of the hearing I dismissed the application as being improperly before the court. I indicated that reasons would follow. 

These are they.

The applicant seeks the following relief;

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable court why a final should not be made in the following terms-

1. That the debt owed by the Zimbabwe National Water Authority to second applicant be and is hereby ceded to the first respondent for the value of the judgment debt in case No. HC2559/13.

2.The second respondent be and is hereby ordered to permanently stay execution against applicant's dwelling being Stand No.6 Anita Road, Burnside, Bulawayo.

3. Costs shall be borne by the applicants if the application is unopposed.

OR Alternatively that:

4. The second respondent be and is hereby ordered to permanently stay execution against applicant's dwelling being No.6 Anita Road, Burnside, Bulawayo.

5. That second applicant be and is hereby ordered and directed to pay the amounts due to the first respondent upon its receipt of the funds owed to it by the Zimbabwe National Water Authority.

6. …,.

INTERIM RELIEF GRANTED

Pending determination of the application for rescission of judgment, the applicant is

granted the following relief: 

1) The second respondent be and is hereby ordered to send written notification to the 4^th respondent that the 1^st applicant's dwelling, being Stand No.6. Anita Road, Bumside, Bulawayo has been attached and to take no further steps in regard to the sale of the dwelling or eviction of the occupants for a period of ten days.

2) 3^rd respondent be and is hereby ordered to stay execution against applicant's property pending a response from 4^th respondent in terms of Order 40 Rule 348A(3).

3) The Zimbabwe National Water Authority be and is hereby ordered to pay all amounts owed by it to the 2^nd applicant, to the 1^st respondent's legal practitioners, Messrs Dube Manikai and Hwacha, to the value of the judgement debt in case No. HC2559/13.

4) Costs to be borne by first applicant.”

The brief facts are that the second applicant was advanced a loan by the first respondent. The first applicant and his wife stood as sureties for the loan advanced. As at 12 March 2013 the loan amount stood at $321,962=78. As a result, the first respondent applied for and was awarded a provisional sentence against the second applicant, the first applicant and his wife on 15 May 2013. On 3 September 2013 a writ of execution was issued by this court against Stand No.6 Anita Road, Burnside Township. Such writ of execution was served upon the first applicant and his wife on 9 September 2013. 

On 13 December 2013, the applicant filed an urgent chamber application for the stay of execution of the sale of a dwelling in terms of Order 40 Rule 348A of the High Court Rules, 1971.

The respondents raised a point in limine that such application was filed out of time and should be dismissed as no condonation had been sought and granted by this court.

Rule 348A(5a) provides:

“Without derogation from subrule (3) to (5) where the dwelling that has been attached is occupied by members of his family, the execution debtor may, within ten days after the service upon him of the notice in terms of rule 347, make a chamber application in accordance with subrule (5b) for the suspension of;

1. The sale of the dwelling concerned, or

2. The eviction of its occupants.”

In a similar case of Meda v Homelink (Pvt) Ltd & Anor HB195-11 this court ruled that the application was not properly before the court as it had been filed well after the ten day period provided for in the Rules. In casu, this application, having been filed well after the ten day period, and condonation not having been sought nor granted, I found that the application was improperly before me.

The second respondent filed his opposition papers on 2 November 2011. He says the Sheriff's sale was irregular because he had already paid the judgment debt by the time the property was sold. He, however, conceded that he did not approach the courts for recourse but sought what he calls “political intervention.”….,.

On the issue of the sale having been irregular, the case of Mapedzamombe v Commercial Bank of Zimbabwe and Anor 1996 (1) ZLR 257 (S) referred to by the applicant is relevant. It states as follows:

“…., under common law, immovable property sold by judicial decree cannot, after transfer had been passed, be impeached in the absence of an allegation of bad faith or knowledge of prior irregularities in the sale or fraud.”

The second respondent is free to institute the common law proceedings referred to above and allege bad faith, knowledge of prior irregularities in the sale or fraud. But, until that is done, the sale and subsequent transfer of LOT 1A Johannesburg to the applicant is valid and lawful.

So it is irregular for the second respondent to allege irregularities surrounding the sale in the present proceedings where the Sheriff is not cited as a party.

Consequently, it is ordered that:

1. The applicant be and is hereby declared the legal owner of LOT 1A of Johannesburg measuring 111, 9776 hectares held under Deed of Transfer Number 1231/98.

2. The second respondent be and is hereby ordered to vacate the said plot forthwith and not to interfere with the applicant's project.

The applicant approached this court seeking an order in the following terms:

“It is hereby ordered that:

1. The sale in execution of Stand Number 9876 of Ruwa, concluded under case number MC6022/07 be and is hereby set aside.

2. That Stand Number 9876 of Ruwa be unconditionally delivered to the applicant.

3. Respondents to bear costs of suit on an attorney-client scale.”

The background to the matter is that prior to the sale in execution in issue, the applicant was the owner of Stand No.9876 of Ruwa. It would pay rates for the property to the first respondent through bank deposits into the first respondent's bank account. On 10 September 2007, the first respondent instituted proceedings in the Magistrate's Court under Case No. 6022/07 claiming arrear rates against the applicant. The summons were served on a vacant and underdeveloped Stand which is the property in issue. As a result, the matter was not defended. The first respondent proceeded to obtain default judgement. Pursuant to the judgement, a sale in execution of the property took place at which the second respondent purchased the property. The sale was confirmed on 17 June 2008. The applicant became aware of the issue when it sent its representative to pay rates to the first respondent on 28 July 2008. The applicant applied for the rescission of the default judgement and it was granted. It then proceeded to file its plea in the main matter.

The applicant's basis for seeking the order is three pronged. Firstly, it avers that as the judgement and the warrant of execution on which the sale in execution was founded had been set aside, the basis for the sale had fallen away. Secondly, it avers that the sale in execution could not and cannot give title to the second respondent as it was premised on a judgement which has since been set aside. Thirdly, it is contended that the first respondent's conduct, in obtaining the default judgement, warrant of execution and attachment, and, consequently, the sale, amounts to a fraud.

The first respondent challenges the application on the basis that the applicant has not established grounds in terms of Order 26 of the Magistrate's Court, Civil Rules  for the setting aside of the sale.

The second respondent challenges the application on the same basis and further contends that the applicant's remedy would be to obtain damages for wrongful execution. It also contended it was an innocent purchaser.

The applicant formulates the issues for determination in its Heads of Argument as follows:

“a) Whether or not the sale in execution was valid or founded upon a just cause or valid cause of action so as to found a proper sale in execution?

(b) Whether or not the sale in execution can stand after the basis upon which it was founded has been rescinded or set aside.”….,.

On the second issue, counsel for the applicant submitted that the default judgement leading to the sale was rescinded.

As regards the bona fides of the second respondent, counsel for the applicant conceded that the second respondent was a bona fide purchaser but went on to argue that the sale was invalid. He referred to the case of Katsande v Katsande HH113-10 where it was held that when an act is a nullity, the innocence or otherwise of the other party to the act is of no assistance.

Counsel for the first respondent submitted that the applicant had failed to lay a basis for the sale to be set aside as is provided for in Order 26 Rule 7(15C) of the Magistrate's Court, Civil Rules….,.

Counsel for the second respondent submitted that the juristic act which the applicant wants set aside is an act provided for in the Magistrates Court Rules undertaken by the Messenger of Court. The Rules provide for a procedure to set aside the sale. No explanation had been given why the procedure was not followed. As regards the second issue, he submitted that at the time of the sale, there was a valid order which was given effect to. The applicant's remedy would be to seek damages for wrongful execution.

Counsel for the applicant, in reply, indicated that Rule 7(15C) of the Magistrate's Court, Civil Rules applied where the sale had not been confirmed. That is why the applicant had approached the court in terms of common law.

Counsel for the applicant was not very clear on which common law principle he was relying on. It is also not clear from the founding affidavit and in the Heads of Argument; no wonder why the respondents challenged the application, inter alia, on the basis of non-compliance with the Magistrate's Court, Civil Rules….,.

Issue No 2

Whether or not the sale in execution can stand after the basis upon which it was granted has been rescinded.

The applicant is not disputing that the second respondent is a bona fide innocent purchaser. It however asks whether the bona fides of the second respondent would validate a sale in execution the basis of which is a nullity and or has been set aside.

I have already made a finding that no court has made a pronouncement regarding the existence or otherwise of a cause of action in this matter and whether the judgment is a nullity or not. As to whether the sale can stand after the basis has been set aside, the answer can be found in Kanonyangwa v Messenger of Court & Ors 2007 (1) ZLR 124 (S)…,.

“What presents itself in the final analysis is a situation where, on the one hand, there is a judgment debtor who was aware of the impending sale of his property by public auction, even though some requisite pre-sale formalities concerning advertisement of, and the service of certain notices concerning, the sale, were not observed by the relevant officials.

Against this, is the situation where:

(i) The sale by public auction was successfully conducted and the highest bidder declared;

(ii) The sale was then confirmed by the magistrate as required by the Rules of the Court;

(iii) The said highest bidder – the second respondent in casu – in good faith took transfer of the property after duly paying the purchase price and other related charges like auctioneers' fees, council rates and conveyancing fees; and

(iv) The proceeds of the sale were paid to the judgment creditor, that is, UDC.

Added to all this, is the fact that the sale in question took place some three to four years ago. 

Given the situation outlined above, the determination of this dispute, in my view, requires that the interests of the appellant, on one side, be balanced against those of the respondents, on the other. In other words, the case must be determined on the basis of equities and balance of convenience. This is what I shall proceed to do.”

In casu, the sale in question was confirmed although the second respondent had not yet taken transfer at the time of hearing. It was in the process of doing so. As expounded in its papers, the second respondent purchased the property in question, together with the adjacent properties, for commercial purposes. The balance of equities favour the second respondent. On the one hand, the applicant did not do enough to protect its rights. It discovered that its property had been sold, on the strength of a default judgement, on 15 June 2008. It only filed the present application on 27 September 2010. 

The law protects the vigilant and not the sluggard. In any event, it had not done anything to improve the property since it purchased it in 2001.

In view of the above, I will make the following order:

(1) The application is dismissed.

On 18 August 2012, the applicant applied for and was granted a provisional order by this court in the following terms:-

“Pending determination of this matter, the applicant is granted the following relief:-

(1) That the 2^nd respondent be and is hereby interdicted from effecting delivery to the 3^rd, 4^th an 5^th respondents or any other party who purported to purchase applicant's goods that were sold in execution on 10^th August 2012 pending the return date of this application.

(2) In the event that any person has taken possession of any of the goods before the hearing of this application, that such person be and is hereby ordered to return the same to the applicant's mine within 24 hours of being served with this order.

(3) That the 2^nd respondent be and is hereby compelled to supply the applicant with a full return showing the full details of the sale, including any writ on which she acted within 24 hours of being served with this application.”

On 4 July 2012, the first respondent obtained a judgment against the applicant in the sum of $29,490=. The first respondent further obtained another order against the applicant, on 8 August 2012, in the sum of $7,258=. The total indebtedness of the applicant to the first respondent was $36,748= for which the first respondent obtained a writ of execution. The judgments were obtained in default. 

The applicant is in the habit of not paying its debts.

The first respondent then instructed the Deputy Sheriff (Gwanda) – the second respondent, to attach the applicant's movable goods in execution of those two judgments. On 12 July 2012, the second respondent attached the applicant's goods in execution. 

The applicant complained that the said goods were not valued.

The applicant alleged that it had subsequently entered into an agreement with the first respondent to settle the judgment debt on 15 August 2012.

The second respondent, had, however, proceeded with the sale in execution on 10 August 2012 yet the mandate to proceed with the sale in execution had allegedly been withdrawn before the Deputy Sheriff had been paid with ready money.

The second respondent had sold the following applicant's goods:-

(i) An excavator for US$51,000=;

(ii) A bulldozer for US$21,000=; and

(iii) A dump truck for US$32,000=;

fetching a total amount of US$104,000= for a total judgment debt of only US$36,748=.

The applicant alleged that the second respondent had failed to observe the legal pre-requisites for a sale in execution in that:-

(a) She had not sold the attached goods for ready money;

(b) She had sold goods that were far above the amount on the writs she had; and

(c) She had proceeded to receive payments from the purchasers after she had been told to set aside the sale in execution by the judgment creditor's legal practitioners.

The applicant claimed to have satisfied the judgment in terms of an agreement it had allegedly entered into with the first respondent. It was for that reason that it felt if it was not granted an order interdicting the second respondent from effecting delivery of the goods to the purchasers, and setting aside the alleged irregular sale, it would suffer irreversible damage.

The respondents argued that the applicant finds itself in an enviable and untenable position because of its tardiness and pointed out that the law protects the diligent and not the sluggard. Its property was attached on 12 July 2012. For nearly a full month, with the full knowledge of attachment, it sat on its hands and did not take any action until its property was sold on 10 August 2012. It admits of no doubt that as at that date there was no letter suspending the sale. Mr Steven Mushonga, who deposed to the judgment creditor's affidavit, averred, in paragraph 4.4 thereof, that he had not instructed the Deputy Sheriff to stop the sale in execution as no undertaking was made by the applicant that the US$26,000= would be paid on 9 August 2012. He went further to state, in paragraph 4.6, that he had not agreed to instruct the Deputy Sheriff not to receive payment.

Consequently, the respondents held the view that the Deputy Sheriff had the mandate to conduct the sale in execution. That sale was not suspended, and has not been suspended, up to this date as there is no letter suspending the sale. So that sale was clearly valid.

Apart from the fact that the applicant did nothing up to the date of the sale in execution, when it had prior knowledge a month prior to the sale, on the date of the sale, the applicant hired a bouncer to disrupt the sale without success. It was only after the failure by the bouncer to stop the sale that the applicant frantically tried to run around to have the sale set aside.

It was submitted that overall it showed that the applicant had no money to pay. It only raised the money after the sale had been conducted.

The respondents contended that the applicant's assertion that it had reached an agreement with the judgment creditor to settle the debt was simply not true. There was no such agreement filed of record. What is on record are letters that were exchanged between the parties discussing a possible stop of the sale in execution.

The applicant alleged that it had made a payment to satisfy the writ on 15 August 2012 and filed annexure “D” as proof of payment of $39,988=. That, however, was not full payment as it was short by $488=. Moreover, that payment was not made to the Deputy Sheriff but was made to the first respondent's legal practitioners who pointed out in their letter of 16 August 2012 that the money was short by $488=. They, however, went on to say that they were prepared to consent to have the sale in execution set aside.

What is clear is that as at 15 August 2012 no instructions had been given to the Deputy Sheriff and no full payment had been made. The respondents' contention was that if the applicant had the money it should have paid to the Deputy Sheriff instead of paying the first respondent's legal practitioners. In their view, the applicant simply had no money to pay.

They further alleged that due to its lack of diligence, the applicant complained about problems of its own making. It brought this application basing it on the provisions of Rule 359 of the High Court Rules. But that Rule only refers to immovable property. It does not refer to movable property. When it realised its error, it conceded at the hearing that the application was based on a wrong foundation. It then attempted to make a meaningless change and contended that the application was based on the case of Ngarati v Mudzingwa 2008 (2) ZLR 88. It ignored the fact that that case was based on Rule 359 which deals with immovables not movables. The respondents accordingly submitted that the applicant's case falls on that argument. 

There is merit in that submission.

It was their contention that the only way the applicant could challenge the proceedings of the sale in execution was by way of a review not in terms of Rule 359 of the Rules of Court, and not in terms of the Ngarati v Mudzingwa 2008 (2) ZLR 88 case. The application should have been commenced in terms of order 33 Rule 259 but it was not. Instead, it was commenced under order 40 Rule 359. The fact that the application was not a review is fatal to it.

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 fact, the bouncer hired by the applicant, one Tichaona, had locked away the small items which could have been sold to satisfy the writ. The bouncer ran away with the keys of the section where the smaller items were located. He even drove away a vehicle under attachment. The problem that larger items instead of smaller ones were sold was clearly created by the applicant. In any event, Rule 341 caters for a situation where there is an excess 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 excess 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.

The applicant had alleged that the Deputy Sheriff had not sold the attached property for ready money and went so far as to suggest that the sale was a credit sale. 

Rule 338 Order 40 of the High Court Rules provides that;

“…, any movable property sold in execution shall be sold publicly and for ready money by the Sheriff or his deputy to the highest bidder…,.”

The third respondent, who bidded for the bulldozer and was declared the highest bidder, was instructed by the Deputy Sheriff not to make a cash payment in the light of the value of the purchase price. It was a large sum of money. The respondent was instructed to make a bank transfer which he did. 

It admits of no doubt that the sale in respect of the bulldozer was for ready money.

The fourth respondent bought a front end loader for $51,000=. Payment was effected by way of an electronic cash transfer into the account of the Deputy Sheriff. 

Payment in respect of this sum was also for ready money.

The fifth respondent bought a CAT Dump truck R317 for $32,000= by paying the sum of $29,090= into the Deputy Sheriff's account on 15 August 2012. The balance was to be paid to the Zimbabwe Revenue Authority as withholding tax. 

There is also no doubt, whatsoever, that payment was for ready money in this case.

The English British Dictionary and Oxford Dictionary define “ready money” as:-

“Money that is available to be spent immediately;” “money that is in hand or may be obtained quickly or easily, cash;” “money on hand or quickly available, money held ready for payment;” “payment money in the form of cash that is immediately available.”

The mode of payment used by all the three respondents made the purchase price quickly available. It was money held ready for payment. The suggestion by the applicant that “although the sale was clearly not a credit sale, second respondent did not receive cash. She therefore turned it into a credit sale in breach of both the Rules and the conditions of sale” is absurd and vexatious. 

In the light of the foregoing, this application fails….,.

In the result, the provisional order is hereby discharged with costs on an attorney and client scale.

The third respondent's counter-claim is granted in terms of the draft order…., with costs being borne by the applicant only on an attorney and client scale.

The germane facts in this matter are briefly these.

On 12 March 2012, Tapera Bauline, the first respondent in the present matter, was ordered to pay US$18,491= which was due and payable in respect of money lent and advanced to the then plaintiff Clingwrap Investments (Pvt) Ltd, which is the second respondent in the present matter. The order was issued in the High Court, Harare.

The second respondent's legal practitioners issued a writ of execution and instructed the Deputy Sheriff – Kwekwe to attach Tapera Bauline's property in execution of the said writ.

On 10 May 2012, the Deputy Sheriff served Michael Hanyani, as occupant, with notice of attachment of Tapera Bauline's immovable property. On 11 May 2012, the Sheriff, Harare duly attached Tapera Bauline's immovable property known as Lot 3 of Subdivision 15 of Lot 14 Chicago, situate in the District of Que Que, held under Deed of Transfer No.4356/2002 – “the immovable property”. The Sheriff placed a caveat on the title deeds of the said property as C.V.T. 64/12 on attachment of the property.

Michael Hanyani  and Tapera Bauline purported to enter into an Agreement of Sale on 21 March 2012 of the said property for the sum of US11,000= but the buyer had not yet taken transfer of ownership of the property. What is significant to note is that Michael Hanyani failed to produce proof of payment of the purchase price for the property. Yet, despite that fact, Michael Hanyani contended that he was the owner of the said property by virtue of the purported Agreement of Sale entered into with Tapera Bauline.

Michael Hanyani sought and was granted a provisional order on 5 July 2012 interdicting the sale of the property. 

He now seeks a final order cancelling the caveat placed by the Sheriff against the said immovable property and compelling the Registrar of Deeds to transfer ownership to him.

Clingwrap Investments (Pvt) Ltd t/a UNUTU FINANCE opposed the confirmation of the interim relief granted. The second respondent contended that Michael Hanyani had failed to satisfy all the requirements of an interdict.

Firstly, he had failed to prove that he had paid the alleged purchase price of US$11,000=. The sale of an immovable property is not an insignificant matter. When payment for such a property is made, there shall be evidence of such payment. Michael Hanyani failed to produce such evidence. The second respondent contended that the alleged sale was in fact a sham or elaborate scam conceived by Michael Hanyani and Tapera Bauline to defeat the lawful sale in execution of the said property.

Quite clearly, Michael Hanyani has failed to establish a clear and definite right over the property.

Further, since he has failed to prove that he actually purchased the property and paid the purchase price of US$11,000= there is no conceivable injury to be suffered or suffered by him following the sale of the property in execution. There is simply no harm suffered or to be suffered by him.

Furthermore, if it had been held that had he indeed bought and paid for the property he still had a remedy to sue Tapera Bauline for the recovery of his US$11,000=.

Michael Hanyani's application is devoid of any merit and must fail….,.

The applicants were sued by the second respondent in this matter for the payment of the sum of US$5,924= and the equivalent value of 22 grammes of gold. The latter obtained a judgment under case number HC2856/13 and subsequently issued a Writ of Execution against immovable property. 

In pursuance of the writ of execution, the second respondent caused the attachment in execution of certain mining claims known as Zulu 15 located at Pioneer Block, Bulawayo. The aforesaid mining claims were sold by private treaty to the first respondent who duly paid the purchase price in terms of his bid.

On the 18^th December 2013, the applicants lodged an application with this court for an order to set aside the sale. The terms of the order sought are couched as follows:

“1. The Private Treaty Sale conducted by the 3^rd Respondent be and is hereby declared void ab initio and set aside.

2. The Applicants be and are hereby ordered to pay 1^st Respondent the sum of US$7,100= jointly and severally with the one paying the other to be absolved within 5 days of the granting of this order.

3. In the event that Applicants fail/neglect to pay the amount of US$7,100=, the Sheriff of Zimbabwe be and is hereby ordered to commence a de novo attachment in line with Rule 326 of the High Court Rules.

4. The 4^th Respondent be and is hereby ordered to refund the 1^st Respondent the sum of US$5,000=.

5. 1^st and 2^nd Respondents be and are hereby ordered to pay the costs of this application jointly and severally with one paying the other to be absolved on an attorney and client scale.”

The application is premised on the ground that the mining claims were sold for an unreasonably low price. The applicant averred that the mining claims raised an annual revenue in excess of US$1 million from gold ore processed and sold from the said mining claims. To support their claims, the applicants annexed copies of gold deposits with Fidelity Printers and Refiners (Pvt) Ltd.

The application to set aside the sale has been strenuously resisted by the first respondent.

The first respondent purchased the mining claims by private treaty and made payments to the third respondent. In opposing the application, the first respondent attacked the application on the grounds that the applicants had adopted the wrong procedure. In particular, the first respondent raised a point in limine contending that since the sale in execution had already been confirmed by the third respondent, the applicants ought to have approached this court on the general grounds of review. The first respondent averred that the sale has been duly confirmed and the first respondent has duly paid the sum of US$7,100= stipulated by the third respondent. Further, the first respondent has paid the gazetted amount of US$5,016= to the fourth respondent to enable the transfer of the mining claims. The third respondent has signed the Certificate of Agent - Transfer to enable the transfer of the claims. 

The first respondent contends that the relief available to the applicants would have been to seek a review of the sale by the third respondent.

It is not in dispute that the sale was conducted procedurally in terms of Order 40 Rule 358(2) of the High Court Rules. The applicants were informed of the sale by the third respondent through their appointed legal practitioners at the time, Messrs T. Hara and Associates.

The Rules do not provide for the procedure to be adopted after a sale in execution has been confirmed. The procedure to be adopted has been laid down in the case of George Muchapondwa Chiwanza v Herman Tendai Matanda, The Sheriff for Zimbabwe and Others HB170-04.

In this case, MAKARAU J states…, as follows:-

“The rules do not provide for the procedure to be adopted after the sale in execution has been confirmed. It is my view that any party with an interest in the sale may approach this court by way of ordinary review to have the sale set aside.”

In terms of the common law, where a review is brought challenging the validity of the sale, the grounds for review would include such considerations as gross unreasonableness, bias and unprocedural irregularities, but cannot include such grounds as unreasonably low price or that the sale was not conducted as provided for under the Rules unless such can be sub-sumed in the recognised grounds for review at common law. 

See also the case of Mapedzamombe v Commercial Bank of Zimbabwe and Another 1996 (1) ZLR 257 (S).

In casu, the applicants did not approach the third respondent in the first instance. The application before me cannot be construed as a review of the decision of the third respondent in terms of the High Court Rules. The applicants cannot therefore invite the court to exercise its powers of review as this application is premised on the ground that the mining claims were sold for an unreasonably low price. The applicants evidently adopted the wrong procedure. The procedure for a review application is provided for under Order 33 of the High Court Rules.

I am of the view that the point in limine has merit and there is no need for me to deal with the merits of the matter for the reasons given hereinabove.

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 2^nd, 4^th and 5^th respondents. The judgment of the court a quo is set aside and substituted with the following order;-

1. The attachment effected in Case No. HC1644/12 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 5^th 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=. The appellant was found liable and ordered to pay $29,490= 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=.

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 50HZ

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 Rule 335, Rule 338 and Rule 340 of the High Court Rules 1971. 

It was argued on its behalf that in terms of Rule 335, the Deputy Sheriff should have valued the attached goods but did not do so. In terms of Rule 338, it was argued that the sales to the third to fifth respondents were not for ready cash. In terms of Rule 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 page 4 of its cyclostyled judgment, the court a quo, commenting on Rule 335 and Rule 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 exccess 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.”

Counsel for the appellant made useful submissions before this court on Rule 335 and Rule 340 of the High Court Rules 1971. In respect of Rule 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 Rule 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.”…,.

The use of the word “shall” in Rule 335(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….,.

In this case, the second respondent's attachment of the listed property, for purposes of raising $36,748= 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=.

The second respondent clearly exceeded her mandate in terms of section 20 of the High Court Act [Chapter 7:06].

The failure to evaluate the attached property renders the attachment a nullity. Rule 335(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 Rule 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= - for a judgment debt of US$36,748=. She sold the excavator for US$51,000=; the bulldozer for US$21,000=; and the dump truck for US$32,000=. In respect of this conduct by the second respondent, counsel for the appellant submitted that Rule 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.”…,.

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$36,748=, plus costs of the sale, had been raised. Contrary to the provisions of Rule 340, she continued to sell the appellant's property until she had unnecessarily, and unlawfully, raised US$104,000=. The sale of the appellant's property, in breach of the provisions of Rule 340, does not constitute a valid sale….,.

In this case, it is not necessary to determine which property was sold in breach of Rule 340 because all sales made at the auction were nullified by the second respondent's failure to evaluate the property she attached.

The court a quo's view that Rule 341 allows the Deputy Sheriff to sell 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 Rule 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 sell more than is necessary to raise the judgment debt and costs of the sale. Rule 341 should be read together with Rule 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= and the other two items were sold for a total amount of US$53,000=. The second respondent could have justifiably sold the excavator for US$51,000= 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= for a debt of US$36,748=.

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.

This application purports to be an urgent chamber application. The order sought is couched in the following terms:

“Interim relief sought

1. The process of transfer of Stands 11970 and 8195 Bulawayo Township be and is hereby stopped forthwith; and if such transfer had already been made it be declared of no consequence.

2. The fourth and fifth respondents are ordered to stop interfering with applicant's right of ownership of Stand 11970 and 8195 Bulawayo Township.

Terms of final order sought

1. That the Agreement of Sale between first and fourth respondents, in respect of Stand 11970, be and is hereby declared a nullity.

2. That first respondent be and is hereby ordered to comply with Rule 359 of the High Court Rules, 1974 (sic), in handling the sale in execution.

3. First respondent to pay the costs of suit.”

When I received this urgent chamber application, I directed that all the respondents be served. All the respondents had, on the day of the hearing, filed opposing papers, save for the third respondent, whose role as the auctioneer was peripheral to the real issues at stake.

Various points in limine were raised by the respondents. 

I intend to examine each of these issues. The issues were argued at length by all the parties and several decided cases were brought to my attention relating to the principles that govern the form and substance of urgent applications. It is necessary that I set out a brief synopsis of the background to this application.

Factual background

On the 11^th of November 2015, the first respondent conducted a sale in execution in pursuance of a writ of execution obtained by Jacob Mafusire and others, who are former employees of the Cold Storage Company (applicant). On 12 November 2015, the first respondent declared the fourth and fifth respondents as the respective bidders for the two properties on sale. Stand 11970 and Stand 8195 Bulawayo Township were accordingly sold to the fourth and fifth respondents for US$35,000= and US$36,000= respectively.

On 20 November 2015, the applicant filed an objection to the confirmation of both sales on the grounds that the properties were sold for unreasonably low prices. A meeting was convened on the 17^th of December 2015, before the Additional Sheriff, Bulawayo, to deal with the objections. It is common cause that at this meeting, the applicant was represented by a legal practitioner Mr G. Sengweni. Mr Chagwinya attended the meeting as a representative of the Cold Storage Company. Mr D. Dube attended the meeting on behalf of the judgment creditors. A copy of the minutes was filed at the hearing of this matter and the findings are set out in the following terms:

“After hearing the submission by both parties, the Sheriff confirmed the sale of the two immovable properties to the highest bidders based on the following reasons:

1. The sale was properly conducted.

2. Even if the sale is to be set aside, the applicant does not have any plan to pay the respondent the outstanding amount.

3. The applicant did not bring the prospective buyer who would offer more money.

4. The sale by the Sheriff is a forced sale so rules that apply to a willing seller and willing buyer set up do not apply in this particular case.

5. The objection filed was only meant to frustrate the process since people purporting to represent the applicant did not have any authority to represent the applicant but were trying to safeguard their interests on the properties since they did not have the resolution by the Board to represent the applicant.”

Although the applicant disputes that at the end of the meeting of the 17^th of December 2015 a decision was announced; two of the attendees of this meeting confirmed that the outcome of that meeting was announced that same day. There is irrefutable evidence that on 17 December 2015 the first respondent wrote to the applicant's legal practitioners indicating confirmation of the sale in execution.

The applicant filed this urgent application on the 8^th of March 2015 seeking an order to stay transfers of the properties to the purchasers.

The background facts are that sometime in December 2011, the first applicant and the second respondent entered into what the first applicant described as “an agreement of exchange” wherein he received two motor vehicles, namely, a BMW and a Suzuki pick-up truck from the second respondent in exchange for his Toyota Hiace.

Subsequently, the Toyota Hiace was impounded by the police on allegations that it was a stolen vehicle, leading to the first applicant's arrest. Meanwhile, the second respondent issued summons against the first applicant claiming the value of her two motor vehicles. She obtained a default judgment, under case number HC1938/12, against the first applicant.

The second respondent obtained a writ of execution leading to the sale of the property on 28 August 2013. The first respondent then informed all interested parties, including the first applicant and his erstwhile legal practitioners to file written objections to him 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 this court's Rules. The parties were warned that if no objections were received, the first respondent would proceed to confirm the sale.

No such objections were received by the first respondent.

The third respondent was then declared and confirmed as the purchaser of the property at the sum of US40,000= on 17 October 2013.

The first applicant, through his lawyers, Messrs Marondedze, Mukuku, Ndove and Partners, filed a chamber application on 16 July 2013 seeking the postponement or suspension of sale under case number HC1800/13. The application was dismissed by KAMOCHA J on the grounds that it had been served on the respondents when the property had already been sold.

The first applicant then filed this application on 4 August 2015 seeking the following relief;

“1. Applicants be and are hereby granted condonation for leave to file the application to have the decision of the Sheriff of Zimbabwe confirming sale of a certain piece of land, being Stand 4022 Khumalo Township of Stand 4125 Bulawayo, commonly known as Number 36 Ellington Avenue, Khumalo, Bulawayo set aside in terms of Rule 359 of the High Court Rules, 1971 out of time.

2. Each party to bear its own costs.”

The basis upon which the application has been made can be gleaned from the first applicant's founding affidavit. I summarise them thus;

1. The first applicant believed that his erstwhile lawyers had made an application to set aside the sale.

2. He only discovered that the lawyers had done absolutely nothing when the third respondent was granted an order, under case number HC214/14, to transfer the property to his name.

3. His failure to ensure that his instructions were executed by his erstwhile lawyers was mostly caused by the fact that at the material time he was incarcerated on allegations which gave rise to the judgment debt.

4. The applicant contended that he has bright prospects of success in that the property was “given away at an outrageously unreasonable price.”

5. He also submitted, finally, that his family will become destitute as the purchase price is insufficient to secure them alternative accommodation.

The applicants filed heads of argument and their lawyer made oral submissions during the hearing. It was contended, on the applicants' behalf, that it was never their wish to display a wilful disdain of the Rules of this Court.

The second and third respondents opposed the application on generally similar grounds.

They argued that the applicants have not established the requirements of such an application in that the delay is inordinate, the explanation for the delay is unreasonable and the prospects of success are not bright.

As regards the delay, the respondents argued that the applicants were supposed to act no later than the 30^th of November 2013. They did not do so until the 4^th of August 2015 when they filed this application, i.e. more than twenty (20) months later. Therefore, the application is “glaringly inordinate.”

In respect of the reasonableness of the explanation, the respondents submitted that it is incorrect to attribute the delay to the first applicant's incapacity due to incarceration, in that at the time the need to act arose, the first applicant had been released from prison. He was released on 13^th September 2013 and was required to act in November 2013. Through his current legal practitioners, he filed a chamber application under case number HC2815/13 on 7 November 2013.

The first applicant's contention, in paragraph 14 of his founding affidavit, that he “only discovered that his erstwhile lawyers had done nothing when the third respondent was granted an order by Hon. MAKONESE J, under case number HC214/14, to transfer the property to his name” is clearly untrue as that judgment was delivered on the 2^nd of July 2015 and it took the applicants a full month to file this application. In any case, the applicants should have realised, in April 2015, that their erstwhile lawyers had done nothing to set aside the sale. This is so because the third respondent applied for and was granted a provisional order on 24 April 2015.

It was further argued that the applicants had no prospects of success in that they cannot complain about the low price when they refused the auctioneers access to the building. Since they created this situation, they cannot expect the court to protect their interests. Also, the applicants have not placed any evidence to suggest that the price for which the house was sold is unreasonably low. In any case, according to the distribution plan, the first applicant is to be paid an amount of US$18,143=50 which amount has not been shown to be inadequate to secure alternative and decent accommodation for the applicants and their family.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC) it was stated that:

“The factors which the court should consider in determining an application for condonation are clearly set out in HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts of South Africa, 5^th edition, CILLIERS and LOOTS at page 897 -898 as follows:

'Condonation of the non-observance of the Rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance.'

The court's power to grant relief should not be exercised arbitrarily and upon the mere asking but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts, and, in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation include the degree of non-compliance, the explanation for it, the importance of he case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.”…,.

See also Bishi v Secretary for Education 1989 (2) ZLR 240 (HC); United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 (A); Chimunda v Zimuto & Anor SC361-05; Viking Woodwork (Pvt) Ltd vs Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC).

These requirements have been summarised as;

(a) The degree of non-compliance.

(b) The explanation therefore.

(c) The prospects of success on the merits.

(d) The importance of the case.

(e) The convenience of the court.

(f) The avoidance of the unnecessary delay in the administration of justice.

Applying these principles to the case in casu, I find that the degree of non-compliance with the Rules is excessive in that it took the applicants 1 year and 8 months to file this application. It should be noted that Rule 359(8) of the High Court Rules 1971 requires that an application in terms of that Rule be filed within 30 days of the date of confirmation. The decision the applicants seek to set aside in casu was made on 17 October 2013. The applicants were supposed to act no later than 30 November 2013 but they waited until the 4^th of August 2015.

In Chidziva and Ors v Ziscosteel Co. Ltd 1997 (2) ZLR 368 (S), a delay of five (5) months was held to be inordinate and the application for condonation was dismissed.

In casu, the first applicant admits, in paragraph 17 of his founding affidavit, that the delay is inordinate. He admitted that he became aware of the Sheriff's decision to confirm the sale on the 16^th of October 2013….,.

As pointed out above, the first applicant's explanation for not acting timeously is untruthful as he was a free man when the time to act arose in November 2013. The second applicant has not tendered an explanation whatsoever on why she did not pursue the court application. Her affidavit is hollow and inadequate in this regard. In my view, the applicants deliberately abstained from acting due to lack of diligence. The expression, vigilantibus non dormientibus jura subveniunt, loosely translated to mean, the law will help the vigilant but not the sluggard applies to them with equal force.

See Ndebele v Ncube 1992 (1) ZLR 288.

I take the view that the applicants have been too cavalier in their approach in that they have not explained their default in a manner that can convince me to exercise my discretion in their favour.

As regards prospects of success, I am of the view that the applicants have no prospects of success on the merits because the applicants, or one of them, were intent on frustrating the sale of the immovable property such that they refused the auctioneers access to the property. Further, there is no evaluation report to determine the value of the property. Therefore, there are no reasonable grounds, in my view, to conclude that the US$18,143=50 due to the first applicant is inadequate to secure alternative decent accommodation for the applicants' family.

Both applicants did not address the issue of the importance of the case in their papers. From the totality of the submissions, I am convinced that the importance of this case to the applicants is open to doubt. Surely, if indeed the applicants were interested in this case, they would have prosecuted their matter diligently, timeously, and their application would have canvassed all the requirements for an application of this nature. This application is an after-thought designed to frustrate the various judgments of this court.

Finally, as regards the convenience of the court and the avoidance of unnecessary delays in the administration of justice, it is the policy of the law that there should be finality to litigation – see Deweras Farm v Zimbank 1997 (2) ZLR 47.

In casu, not only have the applicants delayed in noting their application, they have offered no plausible reasons for their non-compliance. Further, they demonstrated that they enjoy no good prospects of success at all. The inconvenience that would be occasioned upon the respondents if condonation were granted would be immense. So far, there has been a multiplicity of litigation involving these parties. For the respondents, defending further proceedings means more costs. Also, the court is over-burdened with cases that require its audience. It would not be in the interests of justice and fairness to all other litigants, and the court's resources, to allow the applicants to be heard in an application in terms of Rule 359(8) whose provisions they have not complied with.

I find that this application is devoid of merit in that the applicants have not only inordinately delayed in filing their application but have also dismally failed to offer a reasonable and acceptable explanation for their non-compliance. They did not show any good prospects of success. The applicants have failed to establish and satisfy the requirements for an application of this nature. Consequently, the court cannot exercise its discretion as it would unnecessarily delay the administration of justice and inconvenience the court.

In the result, the application is dismissed with costs.

This application, although it does not specify the rule of court in terms of which it is made, could only have been made on terms of Rule 348A(5a) of the High Court of Zimbabwe Rules, 1971. I say so because the five (5) applicants who have come to court, on a certificate of urgency, seek the following relief:

“FINAL ORDER SOUGHT

1. That the 1^st and 2^nd respondents be barred from selling in execution applicants' immovable properties, namely, Stand 56 Rodel Township 3 of Rodel, measuring 4,1183 hectares; Stand 2032 Glen Lorne Township of Stand 322 Glen Lorne Township of Lot 3A, Glen Lorne, measuring 1,0219 hectares; Stand 2136 Mabelreign Township, measuring 971 square metres, for a period of four months from the date of this order.

2. That each party bears its own costs.

INTERIM RELIEF GRANTED

That, pending the return date, the following relief is granted;

1. The respondents be and are ordered to suspend the proposed sell (sic) in execution of applicants' immovable properties, namely, Stand 56 Rodel Township 3 of Rodel, measuring 4,1183 hectares; Stand 2032 Glen Lorne Township of Stand 322 Glen Lorne Township of Lot 3A, Glen Lorne, measuring 1,0219 hectares; Stand 2136 Mabelreign Township, measuring 971 square metres.

2. There be no order as to costs.”

The applicants' properties have been advertised for sale in execution on 27 April 2014 and they would want the sale to be postponed for a period of four (4) months to enable them to pay off the debt in terms of a payment plan they have put forward. Therefore, there can be no doubt that the application is made in terms of Rule 348A(5a) which provides:

“Without derogation from subrules (3) to (5), where the dwelling that has been attached is occupied by the execution debtor or members of his family, the execution debtor may, within ten days after the service upon him of the notice in terms of Rule 347, make a chamber application in accordance with subrule (5b) for the postponement or suspension of -

(a) The sale of the dwelling concerned; or

(b) The eviction of the occupants.”

The first applicant states, in his founding affidavit, that the sale will result in the two families suffering loss and leave them destitute when they have 'demonstrated unquestionable commitment' to settle the debt. They would want an opportunity to do so in a less painful way. Therefore, if the application is made in terms of Rule 348A(5a), it must comply with that Rule - including the dies inducae of ten (10) days provided for in that Rule.

Counsel for the first respondent has taken a point in limine that the application has been made outside the prescribed period without condonation of the departure from the Rules. He submitted that the applicants were served with the notice on 20 March 2015, and, when the application was filed, on 16 April 2015, it was already out of time. It could not be made without condonation of the failure to act timeously.

In his founding affidavit, the first applicant alleges that the notices were served on the first and second applicants on 28 March 2015 and on the third applicant on 2 April 2015. If that is the case, then the first and second applicants had until 15 April while the third applicant had until 20 April 2015 during which to bring the application. When the application was filed, on 16 April 2015, the first and second applicants were out of time by one day while the third applicant had time to spare.

It is common cause that no application for condonation has been made for the late filing of the application. There is a catena of cases to the effect that for condonation to be granted, there must be a substantive application for it. In Forestry Commission v Moyo 1971 (1) ZLR 254 (S)…, GUBBAY CJ stated:

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was on the face of it, a grave non-compliance with Rule 259. For it is the making of the application which triggers the discretion to extend the time. In Matsambire v Gweru City Council SC183-95 (not reported) this court held that where proceedings by way of review were not instituted within the specified eight weeks period, and condonation of the breach of Rule 259 was not sought, the matter was not properly before the court. I can conceive of no reason to depart from that ruling. One only has to have regard to the broad factors which a court should take into account in deciding whether to condone such a non-compliance, to appreciate the necessity for a substantive application to be made. They are:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

See Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S) at 357 D-G.

How can a court exercise a judicial discretion to condone when the party at fault places before it no explanation for the delay?

Moreover, in every such application, the respondent is entitled to be heard in opposition. He must be permitted an opportunity to persuade the court that the indulgence sought is not warranted. Without hearing him, how can a court, for instance, be satisfied that he will suffer no possible prejudice by the condonation?”

It has long been decided that an application for condonation must precede the main application. A party who finds himself out of time to make an application must first seek condonation before making the application; Sibanda v Ntini 2000 (1) ZLR 264 (S); Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,.

As stated by NDOU J in Sai Enterprises (Pvt) Ltd v Girdle Enterprises (Pvt) Ltd 2009 (1) ZLR 352 (H)…,:

“This court is bound by the precedents set by the Supreme Court. Arguing against such clear decisions of the Supreme Court is the province of academics and not this court.”

I conclude, therefore, that if the first and second applicants would like to save their property by a Rule 348A(5a) application, they have to seek condonation first, whichever way one reckons the time; be it from 20 March 2015, as advocated by the first respondent, or 28 March 2015 which the applicants are relying upon.

Until that is done successfully their application is improperly before me and would have to be struck off….,.

Counsel for the first respondent correctly abandoned his assertion that a sale may have occurred on 17 April 2015. If the second respondent, who did not bother to appear or submit a report, had indeed attempted to sell the properties on that date such a sale would have been invalid for two (2) reasons, namely, that he had already been served with this application on 16 April 2015 and would have known that the matter awaited determination. Secondly, the notice of sale, in terms of Rule 347, served upon the applicants, set the date of sale as 27 April 2015. Any sale before that date would be invalid.

That only leaves the application of the third respondent, whose dwelling in Mabelreign is also under the threat of execution.

He has stated, in his affidavit, that his family will suffer great hardship if it is sold because it is their only home. He associates himself fully with the contents of the first applicant's affidavit in which it is stated that a genuine offer to clear the debt owed to the first respondent has been made and that if all the efforts being made to raise the money achieve the results the debt will be liquidated within the time that they request. A payment of $200,000= is expected from the applicant's debtor which will significantly reduce the debt when paid to the first respondent. The applicants are committed to clear the debt, and, if allowed to sell the property in Nyanga by private treaty, the debt will be cleared.

In opposition, the first respondent asserts that the applicants' proposals are nothing but “hot air.” They have, in the last few months, been making commitments which have not been honoured and for that reason they are not entitled to any further indulgence. In addition to that, the money owed by the applicants is for the benefit of minor children who are now being prejudiced by the delay in settlement.

In terms of Rule 348A(5e) -

“If, on the hearing of an application in terms of subrule (5a) the judge is satisfied -

(a)) That the dwelling concerned is occupied by the execution debtor or his family and it is likely that he or they will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and

(b) That –

(i) The execution debtor has made a reasonable offer to settle the judgment debt; or

(ii) The occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or

(iii) There is some other ground for postponing the sale of the dwelling concerned or the eviction of its occupants, as the case may be;

the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of its occupants, subject to such terms and conditions as he may specify.”

In Masendeke v Central Africa Building Society & Anor 2003 (1) ZLR 65 (H) CHINHENGO J stated that the requirements set out in sub-rule (5e) are disjunctive even though in Rule 348(5a) they are linked by “and.” If one requirement is eminently met then the fact that the other requirement has not been fully met does not debar the applicant from obtaining an order for postponement or suspension. At 68 H and 69 A-B the learned judge said:

“It is necessary to underline the requirements of Rule 348(5e) in regard to the aspect on which the judge must be satisfied. It is not enough that the execution debtor or his family will suffer hardship if the dwelling is sold. The judge must be satisfied that the hardship is great. In my view, the hardship must be more than the ordinary hardships which persons deprived of their place of residence ordinarily suffer as the attendant inconveniences in finding and paying for alternative accommodation or the need to relocate to another residential place such as rural home or a rented accommodation. The hardship must be great in that it results in the execution (debtor) being rendered homeless or destitute. The second requirement relevant to this application is whether the execution debtor has made a reasonable offer to settle the judgment debt.

Subrule (5e)(b)(iii) of Rule 348A also empowers the judge to postpone or suspend the sale of the dwelling for 'some other good ground.'”

The third applicant has not elaborated on the kind of hardship he and his family will be subjected to as a result of the sale of the dwelling. What has, however, swayed me is the fact that the judgement debtor appears to have made a reasonable offer to settle the debt. Granted, the amount owed being $344,323= is a substantial amount of money. However, I am mindful of the fact that the positions the parties currently occupy only came about by virtue of a cession signed two (2) months ago, on 16 February 2015. Since then, the debtor has made payments amounting to $75,000= and appears to have been relentless in trying to find ways to settle the debt. More importantly, they are not asking for a long stretch of time to settle the debt, but only four months.

I am therefore satisfied that a reasonable offer has been made. Even if the judgment debtor does not honour it, a delay of four months in execution is not, in my view, an earth-shattering occurrence or a train smash as would unduly prejudice the judgment creditor, who will still be at liberty to proceed with the execution.

In the result, it is ordered that -

1. The application of the first and second applicants is hereby struck off as being improperly before me.

2. The application of the third applicant succeeds in that the provisional order is granted in favour of the third applicant as amended.

This is an application for an order suspending the sale in execution of Stand 2885, Bulawayo.

The property was placed under judicial attachment by the Sheriff of the High Court on 3^rd September 2014. The grounds for the application are that the first applicant and five other occupants of the property would suffer great hardship in the event of the property being sold. The applicants contend that if the property is sold all the occupants would be destitute as they have no alternative residential property.

The application is opposed by the respondents who contend that the application is an abuse of court process and ought to be dismissed on an attorney and client scale.

At the hearing of this matter, the first applicant appeared in person and persisted in his argument that the court should suspend the sale in execution to afford him an opportunity to make arrangements for the settlement of the debt.

Factual background

On or about 16^th December 2011, at the special instance and request of the first respondent, the applicants guaranteed a loan in terms of which the first respondent lent and advanced to Familiar Marketing (Pvt) Ltd a sum of US$33,000=. The Loan Agreement was reduced to writing and signed by both parties. In compliance with the agreement, the applicants signed sureties and co-principal debtors for the due and proper fulfillment of the obligations cast upon Familiar Marketing (Pvt) Ltd and acknowledging that any indebtedness by Familiar Marketing (Pvt) Ltd to the first respondent would be binding on them and would be their indebtedness. The applicants are legally jointly liable with Familiar Marketing (Pvt) Ltd for the sums due to the first respondent inclusive of interest, collection commission and legal costs as well as all costs of execution.

In further compliance with the Loan Agreement, a First Surety Mortgage Bond was registered for the sum of US$33,000= plus additional US$6,000= over certain piece of land situate in the district of Bulawayo being Stand 2885 of Bulawayo Township. It is a material term of the Surety Bond that the applicants accepted that any costs incurred in the recalling of the Bond will be payable on the attorney and client scale as well as collection commission and that the Bond would be recalled in the event of Familiar Marketing (Pvt) Ltd defaulting in its obligations. As things turned out, Familiar Marketing (Pvt) Ltd has failed to repay the loan and the applicants have done nothing to settle the outstanding amounts. As at 1^st August 2012 the total sum outstanding was US$33,000= plus interest in the sum of US$4,591=. Summary judgment was obtained against Familiar Marketing (Pvt) Ltd on 29^th August 2014, and, subsequently, a warrant of execution was issued.

Faced with the imminent sale of the mortgaged property, the applicant filed this application in terms of Order 40 Rule 348A(5)(b) of the High Court Civil Rules.

At the hearing of this matter, the first applicant conceded that he had not paid anything towards the reduction of the judgment debt. He further conceded that he had no means to settle the debt as he was unemployed. He averred that if given time he could make arrangements with “his family” to settle the debt.

What is clear is that the applicants' promises are nothing but empty promises meant to postpone the day of reckoning. No plausible payment plan was put forward by the applicants and there is no genuine desire to settle the debt.

Whether applicants satisfied the requirements of Rule 348A(5)(e)

Rule 348A(5)(e) provides as follows:

“If, on the hearing of an application in terms of sub-rule (5a), the judge is satisfied –

(a) That the dwelling concerned is occupied by the execution debtor or his family and it is likely that he will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and

(b) That –

(i) The execution debtor had made a reasonable offer to settle the judgment debt; or

(ii) The occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or

(iii) There is some other good ground for postponing or suspending the sale of the dwelling concerned or the eviction of its occupants, as the case may be;

the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of its occupants, as the case may be;

the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of its occupants, subject to such terms and conditions as he may specify.”..,.

It is clear that in terms of Rule 348A(5)(e) of the High Court Rules, the sale of immovable property can be suspended if the court is satisfied that the dwelling concerned is occupied by the execution debtor or his family and that it is likely that he or they will suffer great hardship if the dwelling house is sold. The applicant has failed, in my view, to meet the requirements of this Rule. In the first instance, the applicant merely avers that the dwelling house is occupied by the applicant's family members, namely:

(a) Neville Wyngard.

(b) Jean Wyngard.

(c) Calvin Wyngard.

(d) Logan Wyngard.

(e) Lorrel Wyngard.

It is contended that the occupants of the property will suffer great hardship because the said dwelling is their permanent home.

The first applicant, Dean Julian Wyngard, deposed to an affidavit in support of this application and contends that the rest of the applicants are family members. The first applicant is not the judgement debtor. His involvement in this matter is that he gave the title deeds for his property to Familiar Marketing (Pvt) Ltd to use as collateral for a loan. There is no dispute that the loan remains unpaid to date and that the debtor and the applicants have not placed before the court any credible payment plan. The first respondent has therefore been left clinging to a mortgage bond which cannot be enforced. The rest of the occupants mentioned in the first applicant's founding affidavit have not stated, under oath, how the sale of the property would affect them. The fact that the applicants may be calling the property their only home does not mean that they cannot secure alternative accommodation. The applicants have simply parroted the provisions of sub-rule 5(e)(a) without taking the court into their confidence by stating what great hardships would befall those occupants if the sale was not suspended.

See Masendeke v Central Africa Building Society and Another 2003 (1) ZLR 65 (H) where CHINHENGO J stated…, as follows:-

“It is not enough that the execution debtor or his family will suffer hardship if the dwelling is sold. The judge must be satisfied that the hardship is great. In my view, the hardship must be more than the ordinary hardship which persons deprived of their place of residence ordinarily suffer such as the attendant inconveniences in finding and paying for alternative accommodation or the need to relocate to another residential place such as a rural home or rented accommodation. The hardship must be great in that it results in the execution debtor being rendered homeless or destitute.”

The applicants have not alleged that they cannot secure alternative accommodation.

In his submissions in court, the first applicant stated that he needed more time to settle the debt. It has not escaped the court's attention that judgment was obtained against the debtor in August 2014, and that since then no attempt has been made to settle the debt. Further, in terms of the subrule (5e)(b) of Rule 348A, the court can also suspend the sale if the applicants have made a reasonable offer to settle the judgment debt. The applicants have failed to make any reasonable offer to settle the debt and the only conclusion is that the application was filed to buy time.

I entertain no doubt that the application is an abuse of court process. If there was any serious intention to settle the debt, the applicants or the judgment debtor would have made some form of payment towards reduction of the judgment debt. It is evident that the applicants have no case on the merits and that what they seek is to use the court to secure an extension of time to pay.

In the result, the application is dismissed with costs on an attorney and client scale.

The applicant owns an un-divided half share of the remainder of Lot 417 Highlands Estate of Welmoed (herein referred to as “the property”). The other undivided half share was owned by the third respondent. The third respondent is a Trust created by the applicant and her husband, one Joseph Kanyeta Lambert.

The first respondent, a Bank, advanced a credit facility to a company called Real Distributors (Pvt) Ltd. The third respondent bound itself as surety for all amounts drawn down by Real Distributors (Pvt) Ltd. On 12 April 2011, the first respondent issued summons in case no HC3630/11 against Real Distributors (Pvt) Ltd, the third respondent, the applicant's husband and three others for the recovery of amounts owing under the credit facility. On 29 October 2013, the third respondent entered into a Deed of Settlement with the first respondent accepting liability. Upon failing to meet the terms of the deed of settlement, the first respondent obtained judgment on 29 October 2013 against the third respondent. The judgment was by consent of the third respondent.

The third respondent was duly represented by Messrs Bherebhende Law Chambers. The fourth respondent attached the third respondent's undivided half share in the property on 24 July 2014, in pursuance of a writ of execution, and has instructions to dispose of the un-divided half share.

It is this attachment and intended disposal of the share that prompted the applicant to file the present application. The application is for stay of execution of the judgment in HC3630/11 pending a determination of the applicant's rights and extent thereof in the property.

The applicant contends that she was not aware of and is not a party to the proceedings in HC3630/11. She did not consent to the granting of that judgment. The third respondent intends to dispose of the entire property. Such disposal will affect her real rights in the property. She is not willing to dispose of her undivided half share as she resides in the property with her family and considers the property to be the matrimonial home. Counsel for the applicant referred to the case of Gonyora v Zenith Distributors (Pvt) Ltd 2004 (1) ZLR 195 in support of the above proposition.

The first respondent responded that it does not intend to dispose of the entire property. The order in HC3630/11 is clear that it was awarded the third respondent's undivided half share. It is that share that has been attached and that it wishes to dispose of in satisfaction of the judgment. It is not required to secure the applicant's consent.

Counsel for the first respondent submitted that Gonyora v Zenith Distributors (Pvt) Ltd 2004 (1) ZLR 195 is distinguishable from the present case in that the entire property, including the applicant's undivided share had been sold at a sale in execution. The applicant had not been a party to the proceedings and had not consented to the sale….,.

Mr Chivhinga submitted that the third respondent was consenting to the relief sought. No further submissions were made for the third respondent.

The issue for determination is, in my view, whether a co-owner cannot alienate his or her undivided share in an immovable property. Put in the context of the present case, the issue is whether or not the first respondent is precluded, at law, to dispose of the third respondent's un-divided half share.

The law is set out in SILBERBERG and SCHOEMAN's The Law of Property 5^th ed…,. It is stated that:

“Every co-owner has the right, freely and without reference to co-owners, to alienate his or her share, or even part of his or her share subject of course to the provision of the subdivision of Agricultural Land Act. It is this right which is probably the most important characteristic which distinguishes a co-owner per se from all other forms of co-ownership such as partnerships and associations. It is clear that the exercise of this right may lead to friction in that it enables one co-owner to force the others into a legal relationship with a party or parties which they do not desire.”

This pronouncement has been made in a number of cases.

In Masubey v Masubey 1993 (2) ZLR 36 (HC) the court was confronted with an issue whether or not a deceased was, during his lifetime, entitled to grant a usufruct over or usus or habitatio of part of immovable property co-owned without the consent of a co-owner (the applicant in that matter). SMITH J…, observed..., that:

“From the above, it seems clear to me that whilst the deceased was entitled, prior to his death, to dispose of his half share of the property to the respondent, either by donation inter vivos or by testamentary disposition, he was not entitled to grant a usufruct over or usus or habitatio of part of the property without the consent of the applicant. The rights of the applicant would clearly be infringed by any such right being granted to a third person.”

As rightly noted by counsel for the first respondent, Gonyora v Zenith Distributors (Pvt) Ltd 2004 (1) ZLR 195 is clearly distinguishable from the present.

The facts of that case were that the applicant and the fourth respondent were husband and wife. They co-owned the property in issue. The first respondent obtained an order against the fourth respondent for the discharge of a debt owed to it by the fourth respondent. The Deputy Sheriff attached and sold the property by auction. The applicant had not been a party to the proceedings and had not consented to the sale. In holding that the sale was irregular, GOWORA J observed…, as follows:

“From the circumstances of this sale, it is not in doubt that the Messenger did not ask the fourth respondent to deliver documents in proof of ownership of the immovable property, as such documents would have shown that the property sought to be attached was jointly owned with the applicant who could not, by any stretch of the imagination, be described as an execution debtor thereby entitling the Messenger to attach and sell in execution her half share in the immovable property. The applicant, as a joint owner to the Stand would be entitled to deal with her property in a manner she found appropriate. This includes alienation of her share. It is inconceivable and legally impossible that her share could be lawfully attached and sold in execution without causa. As there was no attachment in respect of the applicant's half share of the immovable Stand it could not be sold in execution to satisfy the first respondent's claim against the fourth respondent.”

The above does not, therefore, support the applicant's proposition.

The judgment and the writ of execution only refer to the third respondent's undivided share. It is clear from the above that there is nothing to prevent the alienation of the third respondent's un-divided share. The first respondent can alienate, as it wishes, the undivided half share of the property.

In the result, the application is dismissed with costs.

The applicant is seeking an order for the suspension of the sale in execution of Stand 652 Bluffhill Township, 12 of Lot L Bluff Hill measuring 4,516 square metres.

The background to this application is that Achs Logistics (Private) Limited secured an overdraft facility from the respondent. As security for the facility, Stand 652 Bluff Hill Township, 12 of Lot L Bluff Hill was mortgaged. Achs Logistics (Private) Limited subsequently defaulted in servicing the facility. The respondent instituted proceedings and obtained default judgment against Achs Logistics (Private) Limited and the applicant.

The chamber application is not backed by a supporting affidavit. Instead, there is a statement signed by the applicant in his capacity as execution debtor. In that statement it is stated that the property that was attached is occupied by the applicant and his family. A list of the occupants is given. It is claimed the occupants will suffer great hardship as they do not have an alternative dwelling. Some of the occupants are attending school and would need 'massive' relocation. It is further explained that Achs Logistics (Private) Limited failed to pay the amount claimed because it is owed money by the Reserve Bank of Zimbabwe. The applicant offers to settle the judgment debt in instalments of US$1,500= per month commencing in July 2015.

In an opposing affidavit deposed to by Webster Nyamuripa, on behalf of the respondent, it is averred that the applicant cannot seek the present relief when the consequences of mortgaging a property are known. He further contends that with such risk being obvious this application is disguised to seek rescission of judgment. Lastly, it is averred that the amount being offered in settlement has not been paid.

Counsel for the applicant submitted that the applicant has always been desirous of fulfilling his obligations as surety. The applicant did not contest the suit giving rise to the default judgment because the amount claimed by the respondent was owed. Commenting on Rule 348, he submitted that it is meant to ameliorate hardship that may be visited on a family when a dwelling is attached. He further submitted that it is clear that if the amount claimed by the Reserve Bank of Zimbabwe is paid, the applicant will be able to discharge the judgment debt.

Counsel for the respondent submitted that the debt in issue arose in 2010. It has nothing to do with the Reserve Bank of Zimbabwe. It was rolled over, and, in December, the applicant promised to dispose of a Stand and use the proceeds to settle the debt. In 2013 only two payments were made.

Counsel for the respondent further submitted that the requirements for successfully invoking Rule 348 are:-

(a) Whether or not the payment proposal being made is reasonable.

(b) Whether or not the applicant will suffer great hardship.

In support of her submissions, counsel for the respondent made reference to the decisions in African Banking Corporation of Zimbabwe t/a BANCABC v PWC Motors & Ors HH123-13; Masendeke v CABS 2003 (1) ZLR 65 (H); Priscilla Meda v Homelink (Pvt) Ltd HB195-11.

A perusal of the file giving rise to the default judgment (HC1124/14) shows that the plaintiff cited Achs Logistics (Private) Limited and the present applicant as defendants. Summons and declaration were served on the applicant on 26 April 2014. No appearance to defend was entered by both defendants.

When Achs Logistics (Private) Limited secured an overdraft facility from the respondent it offered security in the form of Stand 652 Bluff Hill Township 12 of Lot L Bluff Hill which is registered in the applicant's name. The applicant represented Achs Logistics (Private) Limited in the transaction.

The judgment debt is US$196,492=57 together with interest at the rate of 42% per annum. The default judgment also ordered that Stand 652 Bluff Hill Township 12 of Lot L Bluff Hill is specially executable.

Order 48 Rule 348A(5e) of the High Court Rules provides that:-

“Without derogation from subrules (3) to (5), where the dwelling that has been attached is occupied by the execution debtor or members of his family, the execution debtor may, within ten days after the service upon him of the notice in terms of Rule 347, make a chamber application in accordance with subrule (5b) for the postponement or suspension of -

(a) The sale of the dwelling concerned; or

(b) The eviction of its occupants.”

Then Rule 348(5b) provides that:-

“If, on the hearing of an application in terms of subrule (5a), the judge is satisfied -

(a) That the dwelling concerned is occupied by the execution debtor or his family and it is likely that he or they will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and

(b) That -

(i) The execution debtor has made a reasonable offer to settle the judgment debt; or

(ii) The occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or

(iii) There is some other good ground for postponing or suspending the sale of the dwelling concerned or the eviction of its occupants, as the case may be;

the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of its occupants, subject to such terms and conditions as he may specify.”

In Masendeke v CABS 2003 (1) ZLR 65 (H), CHINHENGO J held that the requirements in Rule 348(5b) are not conjunctive. This is because an order for suspension of a sale or suspension of eviction may also be granted on some other good grounds.

I have already noted that the default judgment granted against the applicant ordered that Stand 652 Bluff Hill Township 12 of Lot L Bluff Hill is specially executable. On this aspect, NDOU J had this to say in Priscilla Meda v Homelink (Pvt) Ltd HB195-11….,:-

“In my humble view, execution of mortgaged property is different from the property being referred to in Order 40 Rule 348A.

The difference is that we are dealing here with foreclosure proceedings.

In foreclosure proceedings, the security which the mortgagor pledged is the one that is sold after institution of judicial proceedings for the amount of the debt whereafter a writ of execution against the property is issued. In other words, if the mortgagor does not pay the capital when due, or if he commits any breach of the conditions of the contract entitling the mortgagee to foreclose then the latter is entitled to have the secured property sold and obtain the amount of his debt from the proceeds of the sale - Benson v Hirschlorin 1936 NPD 277.

A mortgagor cannot claim a stay of execution in terms of Rule 348A supra.

It has to be noted that, as a general rule, a creditor who has obtained judgment is entitled to enforce such judgment by levying execution and the court has no jurisdiction to restrain the judgment creditor from enforcing such legal right - Sabena Belgian World Airlines v Vas Elst 1981 (1) SA 1235 (T) and South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 544. Rule 348A should be viewed as an exception to this general rule.

In casu, in the summons and the summary judgment application, the 1^st respondent specifically sought an order allowing it to sell the Northend house. The applicant was served with all those processes and she was legally represented. She could have defended the matter even on that aspect alone. She did not.

On 3^rd March 2011, this court acceded to the prayer sought by the 1^st respondent and ordered that the Northend house be sold. Having made an order directing the sale of the house, applicant cannot now bring an application in terms of Rule 348A(5a) stopping the sale on the basis she has made a reasonable offer. She is thus precluded from doing so as allowing the application would have the effect of rescinding, through the back door, the order that has been made by a competent court. By declaring the house 'specially executable' the court has given the 1^st respondent the right to sell the house in execution to recover what is owed to it. The mortgagor's first and foremost duty is to pay the debt secured and the mortgagee's corresponding right is to 'call up' or 'foreclose' the bond. The significance of mortgage bonds and all other forms of hypothecation lies in the fact that they provide the creditor with a 'real security' for the payment of his claim; for if the debtor is unable to raise the necessary funds to pay the debt which is secured, the creditor is entitled to demand that the property, that being the thing which is subject matter of his security, be sold and that the proceeds of such sale are used for the satisfaction of his claim - The Law of Property (3^rd Ed) SILBERBERG and SCHOEMAN at 419 and 429.

The rights of the judgment creditor will enjoy relative primacy. If this were not so, it would bring about a situation in which debtors could borrow money to purchase immovable property and defeat their creditors' legitimate claims to repayment by using Rule 348A(5a).

To put residential immovable property, which is a person's home, into that class of assets beyond the reach of execution would be to sterilize the immovable property from commerce thereby rendering it useless as a means to raise credit.

Preventing debtors from using their homes as security to raise credit will create a class of homeless persons - those who are unable to afford the full purchase price of their homes in a cash sale but could afford to repay a loan for the purchase price. It would lock up capital and prevent the home owning entrepreneur from using his home as security to finance business initiative. Members of the poor communities will not be able to obtain finance from Banks who will not advance money to purchase immovable property if the immovable property cannot be used as security for repayment - Nedbank Ltd v Fraser & Anor case number 2011/00418 (Republic of South Africa - South Gauteng High Court).”

Rule 348A does not provide that the application be supported by an affidavit. Nonetheless, an applicant who wants to convince a judge to grant him the relief sought ought to be wise enough to either depose to an affidavit or provide adequate details in the unsworn statement.

In the present application it was not canvassed whether the applicant does not own any other immovable properties. What emerged from the respondent's counsel is that the applicant previously offered to dispose of a Stand and use the proceeds to settle the debt. This was not done and it was not disputed during the hearing. It is not clear if the Stand still exists and whether any improvements have been made on it. Obviously, if the Stand still belongs to the applicant and some improvements have been made, it cannot be said the applicant and his family have no alternative accommodation. In addition, the applicant did not explain if he cannot lease a dwelling for himself and the family. In short, the information given regarding the envisaged great hardship is woefully inadequate.

The offer of settlement is manifestly unreasonable.

Taking into account the judgment debt, it would take eleven years for it to be extinguished. The maximum tenure of loans being offered by financial institutions, excluding mortgage loans, is three years. This serves to demonstrate how unreasonable the applicant's offer is.

The hypothecation of immovable property should not be a routine exercise. The applicant ought to have borne this in mind before he mortgaged the property. It is immaterial that a third party's breach of contract ultimately placed the applicant in the present predicament. In African Banking Corporation of Zimbabwe t/a BANCABC v PWC Motors & Ors HH123-13, MATHONSI J…, expressed the following sentiments -

“I find it utterly deplorable that business people are very quick to receive money from banks undertaking to repay on certain terms. When they have expended the money and enjoyed the benefits they cry foul when the lender demands its dues. We cannot allow a situation where business people grab loans and then refuse to pay. As they say, the time to pay the piper has come.”

In the result, the application is hereby dismissed with costs.

The applicant approached this court on an urgent basis seeking the following provisional order;

“Pending finalization of this matter -

3. The 1^st and 2^nd 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 3^rd 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 2^nd 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 15^th 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 29^th 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.

The facts are that the late Moses Maneto Kanhukamwe's rogue son, one Idon Kanhukamwe [Idon], was a director of the second respondent.

On 3 May 2010, the second respondent, represented by Idon Kanhukamwe, entered into a written overdraft facility agreement in terms of which the first respondent granted US$50,000= overdraft facility to the second respondent. It was one of the terms of the agreement that the loan facility would be secured by a mortgage bond in favour of the first respondent over a certain piece of land called sub-division E of Stand 452M Bellevue Township, Bulawayo.

It turned out that this Stand belongs to the late Moses Maneto Kanhukamwe (Moses).

The second respondent started to draw down on the overdraft facility. In breach of the agreement, the second respondent failed to pay the amount owed to the first respondent prompting the latter to issue summons out of this court under case number HC1530/13. A default judgment was granted in the following terms;

“Judgment be and is hereby entered against the 1^st and 2^nd defendants (i.e. 2^nd respondent in casu and Moses Maneto Kanhukamwe (Moses)) jointly and severally the one paying the other to be absolved for –

(a) Payment of the sum of US$101,668=92;

(b) Payment of interest on the sum of US$101,668=92 at the rate of 28% per annum calculated from the 3^rd of March 2013 to date of full and final payment.

(c) A certain piece of land situate in the district of Bulawayo called subdivision E of Stand 452 Bellevue Township of sub-division A of Bellevue situate in the District of Bulawayo in the name of Moses Maneto Kanhukamwe be declared executable;

(d) The 1^st and 2^nd defendants pay costs of suit on an attorney and client scale.”

The first respondent obtained a writ of execution against Moses Maneto Kanhukamwe's immovable property on the 11^th of July 2016. The above order had been granted on the 1^st of October 2013. The late Moses Maneto Kanhukamwe died on the 17^th day of April 2012. The first respondent instructed the third respondent to sell the said property on the 29^th day of July 2016 notwithstanding that the same property is administered by the Master of the High Court as it falls under the Estate Late Moses Kanhukamwe.

The Estate Late Moses Kanhukamwe filed this application seeking the order referred to above.

According to the curator bonis, she only became aware of the fact that there is an order against the late Moses Kanhukamwe's immovable property after she saw a notice in the Chronicle notifying of the sale of the said property on 29 July 2016. She further argued that the death of Moses Kanhukamwe froze the execution process.

Counsel for the first respondent submitted that…,. he was not opposed to the application…,.

Accordingly, it is ordered that:-

Pending the confirmation of the provisional order, an interim relief is granted on the following terms:

1. The sale by public auction of a certain piece of land called subdivision E of Stand number 452M Bellevue Township of subdivision A of Bellevue situate in the District of Bulawayo be and is hereby stayed.

This application is made in terms of Rule 359(8) of the High Court of Zimbabwe Rules, 1971 for the setting aside of the decision of the second respondent, the Sheriff for Zimbabwe, confirming the sale in execution of the applicants' immovable property, being Stand 80 Borrowdale Township of Borrowdale Brook Harare.

The property in question was sold by public auction through the medium of Cliprunt Real Estate on 5 May 2014 for a sum of US$355,000=.

The circumstances leading to the sale of the property are that the first respondent sued the applicants on 16 January 2013 in HC361/13 for payment of the sum of US$454,874=62 plus interest being a loan advanced to them. The first respondent also sought an order declaring the property executable as it had been mortgaged as security for the loan in the event of a default in payment.

The applicants may have realised the folly of contesting that claim for, on 13 June 2013, they capitulated and signed a Deed of Settlement with the first respondent in terms of which they undertook to pay the debt on certain terms and conditions. They also agreed that in the event of default, the first respondent was entitled to make a chamber application for judgment to be entered against them on the outstanding balance together with costs on a legal practitioner and client scale.

As is the case with most such acknowledgments of indebtedness in this jurisdiction, the applicants defaulted prompting the first respondent to move for judgment in terms of the settlement of the parties, but not before the first respondent had granted its consent to the applicants allowing them to sell the mortgaged property by private treaty if they so wished and pay the debt. It was after the applicants had failed to secure a buyer by private treaty and failed to pay the debt in terms of the Deed of Settlement that the first respondent took matters into its own hands.

Having obtained judgment against the applicants on 7 October 2013, which remained unsatisfied, the first respondent instructed the Sheriff to execute against the mortgaged immovable property. The Sheriff obliged, doing what he knows best, on 5 May 2014, selling the property by public auction.

The applicants objected to the confirmation of the sale by public auction in terms of Order 40 Rule 351(1)(b) of the High Court rules resulting in a hearing before the Sheriff on 27 June 2014.

At that hearing, the applicant placed reliance on valuation reports relating to the property which suggested that the property was worth more than the highest bid. Entredev Valuation Surveyors had, on 7 May 2014, placed the aggregate market value of the property at US$922,500= while Quadstar Real Estate said the value was US$945,700= as at 21 May 2014. The first respondent argued that by agreement of the parties, the applicants had been allowed to sell the property by private treaty but they had failed to secure offers in the region of the valuations which appeared to over-state the value. In fact, by letter dated 13 June 2013, the same day that the Deed of Settlement was signed, the first respondent had issued the following letter granting authority to the applicants to sell the mortgaged property:

“TO WHOM IT MAY CONCERN

SUCCESS AUTO (PVT) LTD: Proposed Subdivision of Stand 80 Borrowdale Brook Township of Subdivision H of Borrowdale Estate registered in the name of Honeypot Investments (Pvt) Ltd

We have extended certain banking facilities to the captioned which facilities were secured by a mortgage bond over the above described immovable property. We do not object to the issuing of a subdivision permit or an outright sale of the said property subject to the following terms and conditions:

1. The subdivision, bond cancellation and transfer will be handled by our lawyers.

2. The subdivision and/or sale should not go beyond seventy-five days from the date of signing the Deed of Settlement.

Please note the above condition shall lapse if the said subdivision or sale goes beyond seventy five days.

Please be guided accordingly.

Yours faithfully

Patricia F Nyazenga 

Div. Director Group Credit Management  Division  

Bernard Mutambara

Credit Service Officer”

The consent to sell the mortgaged property came to naught as, at the expiration of the period of 75 days set, the applicants had not managed to sell the property forcing the first respondent to fall back on remedies available to it, namely, taking judgment and executing in terms of the court's rules.

After considering submissions made by the parties, the Sheriff ruled, and, in confirming the sale he reasoned that:-

“The price of $355,000=, which was realized at the auction, is way above the forced sale value of $80,000= and even exceeds the stipulated market value of $300,000= so cannot be claimed to be unreasonably low since Sheriff sales are forced sales and not based on market value. It even exceeds the market value. The matter has been outstanding since 2012 and the judgment debtor was given a chance, by the letter dated 13 June 2014, to sale (sic) the property by private treaty. To ask for 4-6 months to sale (sic) the property again by private treaty is not possible after they did not utilize the one year there (sic) were given to sale (sic) by private treaty. The Sheriff, after considering all the submissions by both parties, is going on to confirm the sale.”

The objection of the applicants to the sale had been premised on;

(i) Firstly, that the price was too low; and

(ii) Secondly, that they needed to be given four to six months more to try and sell the property by private treaty.

A case of closing the gate after the horse had bolted.

The Sheriff was unconvinced and his reasoning was clearly articulated in that regard. It is important to note that it was never the applicants' case, before the Sheriff, that the latter had not proceeded against their movable property before closing in on the mortgaged immovable property. In fact, the issue of movable property has never been the applicants' case.

The applicants were unhappy with the decision to confirm the sale and they lodged this application in terms of Rule 358(8) of the High Court Rules.

In the founding affidavit of Douglas Makonese, the third applicant, they stated, after giving a narration of the background, that:-

“9. The applicants realised that the value that the property was to be sold for was way below its forced sale value. The amount was unreasonably low.

10. A request for setting aside the sale was duly filed and was supported by two valuation reports. The first by Entredev showed that the market value of the property was nine hundred and twenty two thousand five hundred dollars (US$922,500=) whilst its forced sale value was six hundred and forty six thousand dollars. See Annexure 'D'.

11. Another report by Quadstar Real Estate showed that the market value of the property is nine hundred and forty five thousand United States dollars (US$945,000=) while its forced sale value was six hundred and sixty nine thousand dollars (US$669,000=). See Annexure 'E'.

12. The Sheriff, however, went on to reject the request to have the sale set aside and it is thus determination of the Sheriff which is the subject of the application. See Annexure 'F'.

GROUNDS FOR THE APPLICATION

13. The Sheriff grossly erred in dismissing the valuation reports and relying on the report of his independent valuer who held that forced value of the property was eighty thousand dollars and that its market value was three hundred thousand dollars.

14. The Sheriff relied on this report when it is quite clear that the property is primeland which is situated in Borrowdale Brook…,.

15….,.

16. If the Sheriff had properly applied his mind to the report given by his independent valuer, he would have noted that it was far from reality and was only designed to ensure that the sale sails through.

17….,.

18….,.

19. The fact that the matter has been outstanding, a fact which was taken into consideration by the Sheriff, does not mean that the property should be sold for an unreasonably low price. The issue is whether or not the amount realised is not unreasonably low. Where evidence is adduced to the effect that it is low, the Sheriff must decline to confirm the sale. He cannot rush to confirm it simply because in his opinion the matter has been outstanding since 2012.

20. It is therefore just and equitable that the decision by the Sheriff be set aside.

21. I therefore pray for an order in terms of the draft.”

I have deliberately quoted extensively from the applicants' founding affidavit to demonstrate the case which the first respondent was called upon to answer to because, at the hearing of the application, the applicants sought to advance a completely different case, a case not borne by the papers before me, namely, that the sale was null and void by reason that the Sheriff had not exhausted the applicants' movable property before proceeding against the mortgaged property - movable property which was not even identified.

The first respondent opposed the application stating, in the opposing affidavit of Bernard Mutambara, its Recoveries Manager, that in terms of the Deed of Settlement of the parties and the simultaneous consent issued by it, the applicants were supposed to sell the property by private treaty. They failed to secure a willing buyer and also failed to clear the debt in terms of the agreement. It was as a result of that that the first respondent took judgment which it executed.

The first respondent maintained that at the hearing before the Sheriff it became apparent that the applicants' valuers, who had overstated the value of the property, had themselves failed to secure a buyer willing to pay a price higher than the one realized at the public auction. Those valuers could not explain why they failed to secure a higher price between 13 June 2013 and 27 June 2014, a period of more than a year. According to the first respondent, values of property have dropped significantly due to the liquidity crunch prevailing, and, as such, the values relied upon by the applicants were not only fictitious but could also not be realised on the market. The Sheriff's decision to confirm the sale could therefore not be faulted.

In their heads of argument, the applicants submitted that the sale ought to be set aside in terms of Rule 359 of this courts rules on the basis that the property was sold for an unreasonably low price for a property located in Borrowdale. They cited Rule 359(1) which reads:-

“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) Any other good ground.”

It was further submitted that in seeking to set aside the sale the applicants were relying on the ground that the property was sold for an unreasonably low price and no other ground.

In advancing that argument, reliance was placed on the words of GILLESPIE J in Morfopoulos v Zimbabwe Banking Corporation Ltd & Ors 1961 (1) ZLR 626 (H)…, where he 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)…,.

I totally agree with the reasoning adopted by GILLESPIE J including his conclusion…, that:-

“The awe and finality with which the law seeks to invest the process of execution cannot be disturbed by such ill refined and non-specific averments as these. The rights which the third respondent has acquired cannot be denied him save upon sufficient proof that it is not fair that he should continue to enjoy them.”

In the present case, the applicants relied on valuations that were not only heavily compromised but also that the authors of them were discredited at the hearing before the Sheriff;

(i) Firstly, by the variance between their valuations and that of the Sheriff's independent valuer who pegged the forced value at $80,000= and the market value at $300,000=; and

(ii) Secondly, by the fact that the same estate agents had been afforded the opportunity to sell the property with the consent of the first respondent but for well over a year they could not secure a buyer at a price above the one achieved.

Their valuations were demonstrably unreliable and the Sheriff properly rejected them.

It is not without significance that these two valuers were sourced by the applicants and were, for all intents and purposes, the applicants' agents whose independence, and therefore, reliability, was non-existent. Against their evidence was the evidence of the Sheriff's independent valuer who had no interest in the matter and was accountable to the Sheriff only, an officer of this court.

The sale was confirmed by the Sheriff in terms of the rules and the applicants have not attacked it on the basis that it was improperly conducted. That confirmation sets into motion the position stated by the Supreme Court in Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S)…, that:

“Once confirmed by the Sheriff, in compliance with Rule 360, the sale of the property is no longer conditional. That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of Rule 359 for it do so. See Naran v Midlands Chemical Industries (Pvt) Ltd SC220-91 (not reported) at pp 6-7. When the sale of the property not only has been properly confirmed by the Sheriff but transfer effected by him to the purchaser against payment of the price, any application to set aside the transfer falls outside Rule 359 and must conform with the principles of the common law.”

See also LMS Timbers (Pvt) Ltd & Anor v The Sheriff of Zimbabwe & Ors HH484-14; Mhlanga v Sheriff of the High Court 1999 (1) ZLR 276 (H).

I am of the view that the sale cannot be interfered with merely because of the self-serving interests of the applicants who desire a better price which they themselves failed to achieve, ably assisted by their own extravagant estate agents, for a period of over a year. The Sheriff was right in confirming it the way he did especially as he relied upon the opinion of an independent valuer who fixed the value at far less than what was achieved.

An interested third party has come onto the scene having purchased the property for value, but has unfortunately not been cited, whose interest cannot be ignored.

The matter would otherwise end there but for the belated submissions by Mr Zhuwarara, who took over from Mr Hashiti, to advance the point that the sale should be set aside because the Sheriff did not proceed against and did not exhaust the movable property of the applicants before executing against the immovable property. He relied on Rule 326 which provides:-

“It shall not be necessary to obtain an order of court declaring a judgment debtor's immovable property executable or to sue out a separate writ in order to attach and take in execution the immovable property of any judgment debtor, but where so desired, the judgment creditor may sue out one writ of execution for the attachment of both movable and immovable property;

Provided that the Sheriff or his deputy shall not proceed to attach in execution the immovable property of the judgment debtor unless and until he has by due inquiry and diligent search satisfied himself that there is no or insufficient movable property belonging to the judgment debtor to satisfy the amount due under the writ.”

In my view, the proviso to that rule must be read in conjunction with the rule itself and means that a judgment creditor does not have to obtain an order declaring the debtor's immovable property executable and does not have to issue a separate writ against such immovable property where he already has a writ against the debtor's movable property. In such situation, the judgment creditor should simply issue one writ against both movable and immovable property. He will, however, not be allowed to proceed against the immovable property until such time that the Sheriff has exhausted the movable assets.

Mr Zhuwarara submitted that even where an order of the court exists declaring an immovable property executable and a writ against such immovable property has been issued, the Sheriff still has to go through the formality of searching for movable property and exhausting it before he can lawfully proceed against the immovable property. As the Sheriff did not do that in casu, the sale is invalid as it offends Rule 326 and should be set aside.

He cited the judgment of PATEL JA in Govere v Ordeco (Pvt) Ltd & Anor SC25-14…, where the learned Judge of Appeal stated:-

“In the present matter, it is common cause that there was no nulla bona return in respect of the assets of Coldrac and no attempted attachment of the appellant's movables. The order of the court a quo, so it is contended, entitles the first respondent, without any qualifications, to execute against the appellant's immovable, thereby circumventing the requirements of Rule 326. I am unable to agree with that contention for the simple reason that the order for execution granted by the court a quo only comes into operation in the event that the appellant fails to pay the judgment debt. The order is clearly conditional and contigent upon such failure. Therefore, the appellant is perfectly at large to tender his movables in satisfaction of the judgment before any process for the execution of his immovables is iniated. In any event, the interpretation of Rule 326 propounded by Mr Magwaliba is clearly not supported by the wording of that rule…,. First and foremost, the rule patently does not, as is contended for the appellant, differentiate as between secured and unsecured creditors. It applies to both without distinction. Secondly, the plain meaning of this rule is that the judgment creditor has the option to sue out a separate writ of execution for the attachment of immovable property or a single writ for the attachment of both movable and immovable property. In either event, before proceeding to attach immovable property, the Sheriff or his deputy is enjoined to satisfy himself that the judgment creditor does not own any or has insufficient movable property to satisfy the judgment debt.”

See also Pandhari Lodge (Pvt) Ltd & Ors v Central Africa Building Society & Anor HH720-14…,.

The difficulty which the applicants have is that this argument is not borne by the papers. Not only is the submission that the Sheriff did not exhaust their movable property being led from the bar as it is missing completely from the founding affidavit, I am also unable to verify its correctness. We simply do not know whether such movables were exhausted or not the parties not having addressed such facts in evidence. I am therefore not in a position to make any pronouncement in that regard in the absence of evidence.

It is a principle of our law that an application stands or falls on its founding affidavit. See the dissenting judgment of MALABA DCJ in Moyo & Ors v Zvoma NO & Anor 2011 (1) ZLR 345 (S)…, where he said:-

“My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.”

That is the rule in application proceedings.

That is as it should be because the respondent must be accorded an opportunity to respond to allegations made in the founding affidavit. He does so through the opposing affidavit where he places evidence before the court to rebut whatever is contained in the founding affidavit. He has no other bite at the cherry, and, as such, the applicant cannot be allowed to crawl back after the respondent has submitted the opposing affidavit to introduce evidence which the respondent would not comment on. That would be an ambush. It is even more reprehensible when it comes through evidence led by counsel from the bar. Such is untested evidence, it is not even sworn evidence and should simply be ignored as I proceed to do.

In the result, the application is hereby dismissed with costs.

The applicants have been fighting tooth and nail since October 2011 to save the immovable property known as Stand 2321 Bulawayo Township of Bulawayo Township Lands, otherwise known as Number 46 Collenbrander Avenue, Northend Bulawayo (“the property”) from sale in execution to satisfy a debt they owe to the second respondent.

The background is that the second respondent advanced to the applicants a loan of US$15,000= in terms of a loan agreement signed on 15 March 2010. The property was mortgaged as security for the loan. As is now the norm in this country, the applicants failed to repay the loan resulting in summons being issued against them in HC3330/11 for payment of the sum of $13,021=04 outstanding on the capital amount and $12,553=57 being interest levied at the rate of 30% per annum. The applicant did not contest the action, and, inevitably, default judgment was granted on 31 August 2011 in terms of which the property was declared specially executable to satisfy the debt. Following the issuance of a writ of execution, the property was placed under judicial attachment on 3 October 2011 and poised for sale.

The applicants would have none of it.

They approached this court in HC10970-11, in terms of Rule 348A(5b), seeking a suspension of the sale of the property arguing that the property was a dwelling house for the second applicant and his wife, Enesiya, who would suffer great hardship if it was sold. That application came to naught. The property was sold by public auction on 22 February 2013, by Clipcrunt Real Estate, on the Sheriff's instructions. The applicants could not accept that outcome. They duly lodged an objection to the sale to the Sheriff in terms of Order 40 Rule 351(1)(b) of the High Court of Zimbabwe Rules, 1971. The Sheriff conducted a hearing attended by all interested parties and concluded as follows:

“The respondent alleges that the sale was done despite assurances from the Acting Sheriff, Mr Madega, that the sale will not go on. The other ground of objection was that an application to suspend the sale, filed under HC10970-11, was ignored. The respondent's assertion that the Acting Sheriff, Mr Madega, advised them that the sale will not go on is unfounded because the Acting Sheriff is just a holder of public office and not an attorney of any of the parties to these proceedings. Without instructions from the instructing attorney there is no way the Acting Sheriff would have stopped the sale.

On the issue of seeking to have the sale set aside on the basis that an application to suspend the sale was ignored, which application was filed under case number HC10970/11, it is only when a court order has been granted stopping the sale and in this instance the court application was still pending and the mere filing of a court application does not stop the sale. The respondent has failed to raise good grounds for the setting aside of the sale and therefore the Sheriff will proceed to confirm the sale.”

After confirmation of the sale, the applicants did not capitulate. Instead, they filed this application in terms of Rule 359(8) of the High Court Rules, which provides:

“Any person who is aggrieved by the Sheriff's decision, in terms of subrule (7), may, within one month after he was notified of it, apply to the court by way of a court application to have the decision set aside.”

The founding affidavit of the second applicant repeats that the house is the family's primary residence, and, as such, they will suffer irreparable harm and far reaching hardship if it is sold resulting in their eviction. As the applicants have paid a total of $15,700=, according to his calculation, only a sum of $1,087= remains outstanding and it would be unjust to sell the property for such a small debt. He also alleges that the 30% interest levied by the second respondent is unlawful without explaining why that would be so when the applicants committed themselves to that on the loan agreement. Luka Phakathi goes on to make reference to the application to suspend the sale filed under HC10970-11 arguing that the sale should not have been proceeded with against the backdrop of that application, which does not appear to have been prosecuted.

The Sheriff made a finding on that point, and correctly in my view.

He then proceeds to argue, extraneously, that the respondents did not respond to the application for suspension of the sale and that the property should not have been sold without exhausting movable property which movable property he does not even identify. Extraneously in the sense that the filing of an application to suspend a sale on its own did not stop the sale and the immovable property in question was declared executable by order of this court. It had to be because it was given as security for the debt owed to the second respondent.

The application has been opposed by the second respondent which states, through the opposing affidavit of Daniel Nyamushamba, its Credit Controller, that the applicants should have known when they put the property as security for the debt that in the event of a default it would be auctioned to recover that debt. Daniel Nyamushamba insists that the applicants still owe $12,168=91 because whatever they paid was appropriated first and foremost towards the costs, then interest before capital in terms of clause 3 of the facility agreement of the parties. The applicants are also liable for the taxed costs of the second respondent in terms of the bill of costs attached to the opposing affidavit.

The legal position in respect of a sale of immovable property confirmed by the Sheriff was stated in very clear terms by the Supreme Court in Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S)...,:

“Before a sale is confirmed in terms of Rule 360, it is a conditional sale and any interested party may apply to court for it to be set aside. At that stage, even though the court has a discretion to set aside the sale in certain circumstances, it would not readily do so; see Lalla v Bhura (1973) (2) ZLR 280 (A) at 283 A-B. Once confirmed by the Sheriff, in compliance with Rule 360, the sale of the property is no longer conditional. That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of Rule 359 for it to do so. See Naran v Midlands Chemical Industries (Pvt) Ltd SC220-91 (not reported) at pp6-7.

When the sale of the property not only has been properly confirmed by the Sheriff but transfer effected by him to the purchaser against payment of the price, any application to set aside the transfer falls outside Rule 359 and must conform strictly with the principles of the common law.

This is the insurmountable difficulty which now besets the appellant.

The features urged on his behalf, such as the unreasonably low price obtained at the public auction and his prospects of being able to settle the judgment debt without there being the necessity to deprive him of his home, even if they could be accepted as cogent, are of no relevance. This is because, under the common law, immovable property sold by judicial decree after transfer has been passed cannot be impeached in the absence of an allegation of bad faith, or knowledge of the prior irregularities in the sale by execution or fraud.”

See also Mhlanga v Sheriff of the High Court 1999 (1) ZLR 276 (H).

It is not clear from the papers, and counsel did not allude to this in submissions, whether transfer of the property to the third respondent has taken place. What is clear though is that the sale was confirmed by the Sheriff and he gave reasons for doing so. I have already stated that the decision to confirm the sale was a correct one in the circumstances. Whichever way, the issue of whether transfer has been effected or not pales to insignificance when one considers that the sale was confirmed. For that reason, the court will be very slow to set aside the sale pursuant to an application made in terms of Rule 359(8). In my view, there exists no ground whatsoever to set aside the sale. The applicants gave the property as security for a loan advanced by the second respondent. By their own admission, the loan has not been fully repaid. Whether what is owed is $1,087= or more is neither here nor there. The fact remains that the applicants have not repaid the loan in full. There is also the issue of interest and taxed costs which have been shown to be owing. For that reason, the second respondent was within its rights to proceed against the property.

The argument that it should have proceeded against un-named movable property cannot be taken seriously either.

For a start, the applicants did not point to any such property as would satisfy the debt. More importantly, the second respondent instituted foreclosure proceedings in respect of mortgaged property and obtained a court order declaring such property specially executable. In that regard, there was no need to look for unknown quantities of movable property given that there existed security in the form of the property. I am in total agreement with the views expressed by GILLESPIE J in Morfopoulos v Zimbabwe Banking Corporation Ltd & Ors 1996 (1) ZLR 626 (H)…, that:

“The question of the setting aside of sales in execution of property is one that has received considerable attention in recent times. The administration of justice has not been without criticism, unjustified in my view, of insensitivity to the plight of judgment debtors who face the possible loss of immovable property, including residential accommodation, in satisfaction of a judgment debt.

The rules that have evolved concerning the sale of properties in execution are designed to find a balance, on the one hand, between the need to protect a judgment debtor who is unfairly being hounded to insolvency and homelessness, and, on the other, the imperative to ensure that the judgment creditor, forced to go to court to obtain satisfaction of his debts, is provided with his just relief. A further factor has been given additional consideration that is the requirement that the reliability and efficacy of sales in execution be upheld.”

In my view, while a judgment debtor is entitled to test the efficacy of the sale in execution before he loses his property, it should also be borne in mind that financiers are only prepared to part with their money to debtors as loans on the strength of security. They need the assurance that upon a default, they will be able to foreclose on mortgaged property to recover what is due. A judgment debtor standing in the way of execution bears the onus of proving the grounds of interference with a sale set out in the Rules. Where, as in this case where counsel for the applicants stated that they rely on “any other good ground” to set aside the sale, evidence relied upon for interference should be placed before the court. The applicants have dismally failed to show any good cause for interference. In fact, the application exhibits desperation and a discernable unwillingness to be bound by the terms of an agreement the applicants went into with their eyes open than any merit.

In the result, the application is hereby dismissed with costs.

Sales in execution, being forced sales, generally do not realize the true value of the property concerned.

Only the property that rightfully belongs to the judgment debtor may be sold in execution of a judgment against it.