Judicial Sale in Execution re: Approach, Suspension, Setting Aside, Foreclosure Proceedings and Forced Sales

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

On 8 October 2014, I granted the applicant's claim for an eviction order against the respondents stemming from a sale in execution that had been confirmed by the Sheriff and where transfer of the property had already taken place.

I also dismissed the respondent's application for upliftment of bar for reasons I here upon elucidate.

The background facts are these:

The applicant bought the property through a Sherriff's sale for $116,000. The property is described as Subdivision A, Lot 16, Block B of Avondale, held under Deed of Transfer Registration No.4835/05.

The sale was in execution of a debt owed to Genesis Bank by the first respondent and his business partners and for which the property belonging to both respondents had been used as security.

Mr Maxwell Kufakunesu Chisvo was declared the highest bidder for the property on 18 March 2013.

On 19 March 2013, the second respondent applied to have the sale set aside on the basis that the price realised was unreasonable, given that their own evaluation was for $215,000.

The second respondent's application, which was in terms of Order 40 Rule 359, also contained various averments regarding the impropriety of the security that the Bank had obtained in the initial instance.

The application was dismissed in July 2013 and the sale was confirmed since the judgment debtor had failed to produce the buyer for this higher price.

Issues relating to any impropriety regarding the obtainment of the initial security were said to be matters for the court.

The property was duly transferred into the applicant's name in January 2014, which was some six months later.

On 22 January 2014, the applicant gave the respondents notice to vacate the premises.

On 24 January, the respondents practitioners wrote to the applicant's representative advising them of pending proceedings to challenge the terms on which the property had been acquired.

It was the applicant's position, that, the sale was no longer conditional but a confirmed sale, and, accordingly sought eviction on 10 February 2014 and holding over damages.

The respondents filed a notice of opposition, on 25 February, in which they argued, that, the highest bidder was one Mr Kufakunesu Chisvo and that they were surprised that the property was then transferred to Ladrax Investments (Pvt) Ltd.

Their primary objection was that the applicant is an imposter.

The applicant filed its answering affidavit, on 25 February, explaining that the applicant is a company whose directors are Mr Kufakunesu Chisvo and his wife, Joyce Chisvo.

He further explained, that, Mr Chisvo had made a request for the property be transferred into the applicant's name, which wish was acceded to by the Sherriff.

On 24 April 2014, the applicant filed its heads of argument. This is not disputed (the certificate of service confirms says that these were served on the Respondent on the 24th of May 2014. However the Registrar's stamp on proof of service reads 23rd of May so the assumption is that 24th of May is most likely a typing error and should have read 24th April which was when the heads were filed with the court).

It is also not in dispute, that, the respondents failed to file their heads of argument and were therefore barred.

The relevant Rule of the High Court, 1971 reads as follows:

“Rule 238(2a)

Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than 10 days after the heads of argument of the applicant or excipient, as the case may be were delivered to the respondent in terms of sub-rule (1); provided that –

(i) No period during which the court is on vacation shall be counted as part of the ten day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on merits or direct that it be set down for hearing on the unopposed roll.”

On 8 October 2014, some five months after the filing of the applicant's heads, the matter came before me for hearing.

The respondents, being barred, they sought to make an application for upliftment of the bar through their practitioner…,.

He stated, that, the respondents case for upliftment of the bar is based on prior proceedings in which the allegation of fraud were made. He clarified to the court, that, when his firm received instructions from the respondents, its view was that an independent assessment of the allegations was necessary. As such, he said they were reluctant to push the matter without independent evidence. He went on to state, in his quest, that, a report had since been produced, on 25 September 2014, which would now form the basis of the application for upliftment of the bar.

It is necessary here to say a few words about the nature of those allegations as gleaned from the papers filed of record.

The respondents made allegations of fraud in the acquisition of the loan by one of the husband's business partners, particularly in that he had forged the second respondent's signature in order to register the bond.

The respondents had purported to bring two applications against Genesis Bank - one for condonation of late filing for rescission of the default judgment that the Bank had obtained resulting in the sale (HC973/13), and, another, for the actual rescission of the judgment itself (HC11069/11).

However, the respondents, having failed to pursue these applications to their logical conclusion, the documents filed of record indicate that Genesis Bank had brought chamber applications to have these matters dismissed for want of prosecution.

Also, no report had been made to the police concerning the alleged fraud.

The applicant was naturally opposed to the upliftment of the bar, arguing that the reasons could not be ventilated in an oral application.

Counsel for the applicant relied on the case of Kudakwashe Nyakambangwe v Jaggers Trador (Private) Limited HH146-03 which drew on HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4ed…, for the considerations that the court takes into account in considering an application for condonation which include:

“The degree of non-compliance; the explanation for it; the importance of the 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."

Where a respondent has been barred for failure to files heads of argument on time, Rule 238(2b) of the High Court Rules allows a court to deal with the matter on the merits: see GMB v Muchero 2008 (1) ZLR 216 (S) 216…,.

Counsel for the applicant therefore emphasised, that, no police report had been made against Mr Christopher Mawere, who is supposed to have forged the signatures. He also pointed out the first respondent had admitted to receiving US$94,000 to acquire mining equipment which is the reason why they bonded their property.

He maintained, that, the quest for upliftment of bar is an abuse of court process as the respondents have no case at all.

He also dismissed the argument by the respondents, that, the Sherriff should have proceeded against movable property first maintaining that it is a long standing practice to declare hypothecated property executable: see Meda v Homelink (Pvt) Ltd HB195-11.

His position was that it was unreasonable, under the circumstances, for the respondents not to have filed heads of argument.

Although an application for upliftment of the bar can indeed be made at the hearing; however, whether or not a party will be permitted to file their substantive application for the court's consideration, and for assessment by the other party, is not a given and should not be approached as such.

In my view, in light of the facts of the case, this was not a case where an application could simply be made casually on the date of the hearing without grave prejudice to the other side.

The applicants were seeking eviction and the respondents were well aware of this fact.

When they did not file their heads in accordance with the Rules, they were very much aware that they were barred; only to wait to come to court, on the date of the hearing, to tender an explanation that they were, all along, carrying out investigations to strengthen their case.

Furthermore, no correspondence came from them.

Even when they had gathered the information which they thought would bolster their case, they were still dilatory in seeking to bring it to the attention of the court.

Where an applicant has all the time in the world to make a substantive application for the court to consider, and does not do so, he only has himself to blame if the court then refuses to grant his application for non-compliance with the Rules.

My reasoning, in dismissing the respondents application for upliftment of the bar, is very much in line with the sentiments expressed by MAKONESE J in Ndlovu v Guardforce Invstms (Pvt) Ltd & Ors HB03-14.

He re-emphasized the need for legal practitioners to operate within time limits and in terms of laid down procedures, whose purpose is for litigants to know when they are expected to act.

As he explained, when time limits have not been observed, it is the duty of the practitioner to give a credible and convincing explanation why he failed to act timeously.

He also emphasised, that, the court may only excuse failure to act where the explanation given is credible. Significantly, as he stated, the courts should decline to exercise judicial discretion where the explanation proffered is not credible, even where the fault of the legal practitioner will have adverse consequences on the litigant.

I declined the application as the explanation as to why the application was being made at the eleventh hour was far from satisfactory.

There appeared to me to be a reckless and deliberate non-compliance with the Rules as the respondent had been aware, from as way back as April 2014, that, they were under an obligation to file heads.

In light of the facts of the matter, it seemed clear to me, that, the applicant would be prejudiced in the main matter and would not be compensated with a suitable order as to costs, largely because, up to the date of this hearing, the respondent had thus far failed to show any valid reasons for objecting to the sale and to the eviction.

I was not convinced, that, the application for upliftment of the bar was not being made with the intention of delaying the realisation of the applicant's claim for eviction.

If indeed a credit worthy report was now available, there was absolutely no reason why it could not have been the basis for making a chamber application for upliftment of the bar before 8 October.

Against the backdrop of the totality of the above facts, the application for upliftment of the bar clearly lacked merit.

The degree of non-compliance with the Rules, in my view, was inexcusable.

The explanation for the non compliance lacked credibility since the respondents did not even proceed to treat the “report” it had now purportedly obtained with the urgency that it deserved by making an application for upliftment of the bar - assuming it bolstered their case.

Having purchased the property, and transfer having been effected, the applicant clearly has an interest in the finality of his judgment.

In light of the above, I was of the view, that, there was no justification for delaying the administration of justice in the applicant's favour.

It was for the above reasons that I granted the order as follows:

1. The respondent, being barred for failure to file heads of argument, the Notice of Opposition is accordingly struck off.

2. The application, by the respondents, for upliftment of bar, is dismissed.

3. The respondents, and all those who claim title through them, be and are hereby ordered to vacate a certain Subdivision A of Lot 16 Block B of Avondale, also known as No.50 Broadlands Rd Emerald Hill, Harare within 48 hours of being served with Writ of Execution.

4. In the event of the respondents failing to abide with paragraph 3, the Sheriff be and is hereby ordered to evict the respondents and all those who claim title through them.

5. The first and second respondents, jointly and severally, one paying the other to be absolved, be and are hereby ordered to pay costs of suit on an attorney and client scale.

HH158-16 : CYNDRELLA MASIMBE vs RAINBOW TOURISM GROUP
Ruled By: MUREMBA J

On 21 January 2015, the respondent obtained judgment in its favour against the applicant under case number HC1548/13. The judgment is for the payment of $35,873 with interest at the rate of 5% per annum from 1 January 2013, and legal costs in the sum of $2,500.

The judgment debt led to the attachment of the applicant's dwelling, namely, Stand 907 Mt Pleasant Heights, Mt Pleasant, Harare.

The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed, her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of $1,000 per month.

The following is the relief that she is asking for:

“Terms of final order sought

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

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above, and, if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

Pending determination of this matter, the Applicant is granted the following relief:

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling.

2. A copy of this order shall be served on the respondent's legal practitioners.”

The history of the case is as follows:

The applicant was in the employment of the respondent, as Human Resources Director, for 12 years before 2010. In 2010, she sought to leave the respondent's employment due to harsh economic conditions that were prevailing at the time.

On 10 September 2010, she made an application to the respondent for a voluntary retrenchment package which was being offered by the respondent which she found attractive. In response, the respondent persuaded her to stay with a staff retention proposal of a housing loan of $120,000.

The same offer was extended to the Chief Executive Officer and the Finance Director.

According to the housing loan offer, the title deeds of the house that she would purchase would be surrendered to the respondent as security.

The repayment of the loan was going to be upon separation; in other words, upon the applicant's termination of employment.

During her tenure, she was only supposed to pay interest of $600 per month.

Upon termination of employment, the applicant was supposed to repay the loan using her terminal benefits.

The applicant was persuaded to stay by the housing loan offer and took the loan on 23 October 2010.

This staff retention proposal was signed by the Chief Executive Officer, C Mutasa, and the Board Chairman, P.F Timba.

The applicant stated that in 2012, there was a change of management at chairman and CEO levels of the respondent.

She said that relations were not good between herself and them. She further stated, that, it became clear to her that the employment relationship could not continue.

On 17 December 2012, she tendered her resignation from employment in acknowledgement of the breakdown of the relationship.

She said that upon her resignation, her terminal benefits went towards settling the loan - but it was not extinguished.

It was only reduced from $67,124 to $35,172.

She said that she failed to agree with the respondent's new managers as to how the balance was to be settled.

As a result, litigation ensued resulting in the parties signing a Deed of Settlement in December 2014, and the respondent obtaining judgment which gave rise to the attachment of her dwelling.

The applicant stated, that, if the house is sold her family will likely suffer great hardship.

She said that she has always acknowledged her indebtedness to the respondent and has always intended to pay the debt; but, because she was not employed from January 2013 to June 2015 she was unable to pay anything.

She said that now that she is in employment she is making an offer to pay off the debt at the rate of $1,000 per month which offer she says is reasonable.

The applicant attached proof to show, that, from July 2015, when she took up employment with Pan African Mining (Pvt) Ltd, she had only managed to pay $4,000 to the respondent.

The amount was not disputed by the respondent.

PROCEDURE

Although the applicant does not state in her application that she is making this application in terms of Order 40 Rule 348A(5a), I do agree with the respondent, that, looking at the nature of the application, it is indeed being made in terms of Order 40 Rule 348A(5a) which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family.

The execution debtor is empowered to make a chamber application for the postponement or suspension of the sale of the dwelling or eviction of its occupants. The application should be made within 10 days of notice of attachment of the dwelling.

Once such an application is made, the Registrar of this court shall submit the chamber application to a judge who shall consider the papers forthwith: per Rule 244 of the High Court Rules, 1971.

In terms of Rule 348A(6), an application made under Rule 348(A)(5a) shall be treated as urgent and set down urgently, without delay.

However, even if the application is treated urgently, the order that is granted by the court is a final one.

This is supported by Rule 348A(5e) which states, that, if the judge is satisfied that there is good ground for postponing or suspending the sale of the dwelling concerned or postponing or suspending the eviction of the occupants, he may order the postponement or suspension of the sale or eviction subject to terms and conditions he may specify.

The Rule does not say that the order that is granted is a provisional one.

Even the Form 45 upon which this chamber application is made shows that the order which is sought by the applicant is final in nature.

The relevant portion of the Form reads as follows:

“The applicant seeks an order in the following terms:

The sale in execution of the said dwelling is postponed until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling shall proceed subject to the condition that the above mentioned occupants are permitted to remain in occupation until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above.”

It is apparent therefore, that, in this matter, the applicant ought to have made a chamber application and not an urgent chamber application as she did.

It will be futile to grant a provisional order suspending or postponing the sale.

Once this is done, there will not be anything to confirm on the return day as the provisional order that she is seeking is final in nature and has the effect of a final order. In fact, there will not be any need for confirmation of the provisional order on the return day.

Considering that the applicant is a self-actor who is not well versed with the rules of this court, I will condone her adoption of the wrong procedure.

This is in light of the fact, that, the respondent did not make it an issue.

It is just an observation that I made as the court.

In any case, the applicant made her application within 10 days of having been served with the notice of attachment of the dwelling.

The respondent has not suffered any prejudice, because, before the hearing, it was served with the application and got the chance to file its notice of opposition and opposing affidavit.

The requirement of Rule 348A(5C)(b) which says, that, upon the filing of the chamber application, the Registrar, shall, without delay, serve a copy of the application on the judgement creditor, was therefore complied with.

So, in the event that I am satisfied that the applicant has made a good case for herself I will award an order in terms of Rule 348A(5e) which order will be final.

MERITS OF THE CASE

The meaning of Order 40 Rule 348A(5e)

Where a judgment debtor applies, under Order 40 Rule 348A(5a), for the postponement or suspension of the sale in execution or eviction, the judge may grant the application in terms of Rule 348A(5e) which reads:

“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.”

What it means is that the judge may postpone or suspend the sale of the dwelling if he is satisfied, that, the execution debtor or his family are in occupation of the house and will likely suffer great hardship if the dwelling is sold.

In addition to showing that great hardship is likely to be suffered, the execution debtor should make a reasonable offer to settle the debt.

If a reasonable offer is made, the judge will postpone or suspend the sale to enable the execution debtor to pay off the debt.

If the execution debtor cannot make a reasonable offer to settle the debt, he should, in addition to showing that he or his family will likely suffer great hardship, show that he or his family needs a reasonable period to secure alternative accommodation.

In that case, the judge will postpone or suspend eviction for a reasonable period to enable him or his family to find alternative accommodation before they can vacate the dwelling.

If the execution debtor, after showing that he or his family will likely suffer great hardship, neither offers a reasonable offer to settle the debt nor shows that he or his family needs a reasonable period to acquire alternative accommodation, but advances some other good ground which persuades the judge, the judge may postpone or suspend the sale or the eviction on conditions he thinks fit.

Put differently, for a judgment executor to succeed in his application, it is imperative in every case that he shows;

(i) Firstly, that there is occupation of the dwelling by him or his family; and

(ii) Secondly, that he or his family will likely suffer great hardship.

This is the first requirement the execution debtor has to satisfy or meet in terms of Rule 348A(5e)(a).

After satisfying the first requirement, the second requirement that he ought to satisfy is in terms of Rule 348A(5e)(b); under subparagraph (i) by making a reasonable offer to pay the debt; or under subparagraph (ii) by showing that he or his family needs a reasonable period to find alternative accommodation; or under subparagraph (iii) by advancing some other good ground which persuades the judge to find in his favour.

It is my understanding, that, Rule 348A(5e)(a) and Rule 348A(5e)(b) should be read conjunctively because of the use of the word 'and' instead of 'or' between them.

In casu, it is not disputed that it is the applicant, who is the execution debtor, who is in occupation of the dwelling together with her family.

She has averred, in her application, that, the family will likely suffer great hardship if the sale is allowed to proceed and she has made an offer to settle the debt which she says is reasonable.

I have to make a determination on whether she has shown that the family will likely suffer great hardship and whether her offer is indeed reasonable.

GREAT HARDSHIP

On great hardship which will be suffered by her family if the house is sold and they are evicted, the applicant made the following submissions:

They will be rendered homeless and end up on the streets as she will not be able to spare any money for rentals since the family is operating on a very tight budget. The children, especially the two who are in school, will be affected in their studies. The trauma of losing a home and friends will leave or cause permanent psychological scars that may affect their mental health and development.

She said that the one in Form 4 will be affected the most since he will be sitting for his examinations this year.

She also said that since the house was constructed by her husband, the sale will put a strain on their relationship as he is already blaming her for the loss that they are about to suffer.

The applicant said that the house's estimated open market value is $300,000, but, a forced sale will cause it to fetch much less.

She said that this will be worsened by the harsh economic conditions prevailing in the country which make potential buyers unable to offer fair value.

The applicant said that the family will therefore suffer a huge financial loss.

The husband attached a supporting affidavit stating that he is the one who borrowed money from Time Bank to finance the construction of the dwelling and subsequently caused the title deeds to be issued in both his names and the applicant's.

He said that they never use this house as security in borrowing money because it is their only dwelling house.

He said that he is currently unemployed and has been trying to establish a farming business for the past few years, but, unfortunately, the business has not performed well and he has lost money.

He attached proof to show that he indeed took a loan from Time Bank in respect of the property.

By 6 November 2003, the loan was paid up.

In response, the respondent, citing the case of Masendeke v CABS 2003 (1) ZLR 65 (HC), submitted that great hardship is hardship which is more than the ordinary hardship faced by individuals who have been deprived of their dwelling.

The respondent said that an inconvenience in finding and paying for alternative accommodation, or the need to relocate to another residential place, is just ordinary hardship which cannot be categorised as great hardship.

The respondent further stated, that, if the open market value is around $300,000, a forced sale value may be slightly less.

It further said that the proceeds thereof are likely to far exceed the judgment debt, and, the surplus from the sale will be available to the applicant to seek alternative accommodation.

It said that the fact that the applicant is now employed means that she can afford to seek alternative rented accommodation whilst she secures an alternative property to buy with the net proceeds.

The respondent further stated, that, in any case, the applicant ought to have used the loan to purchase a house and secured the loan with the title deeds of the purchased house.

It said that it is now suffering because the applicant did not use the loan for its intended purpose.

In Masendeke v CABS 2003 (1) ZLR 65 (HC)…, CHINHENGO J said:

“In my view, the hardship must be more than ordinary hardships 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 a rented accommodation. The hardship must be great in that it results in the execution debtor being rendered homeless.”

The same sentiments were echoed by MAKONI J in Zwidza & Anor v Mudoti & Anor HH349-15.

In the circumstances of this case, I make a finding that if the sale is allowed to proceed the applicant and her family will suffer great hardship. This is in view of the following reasons:

The applicant is the sole breadwinner.

Although she has secured another job and is earning a salary of $5,000 per month, the letter of confirmation of employment from her new employer states, that, it (the new employer) is experiencing cash flow problems. As a result, it cannot pay its employees their full salaries at once at the end of the month. It has resorted to paying them in cycles.

The applicant gets her salary every three (3) weeks, and, even then, she does not get her full salary, but $1,800 per cycle.

The letter further states, that, as it is, the employer already owes the applicant salary arrears of two (2) months salary.

The applicant produced a breakdown of her family expenses which shows that they use $1,800 per month.

This is clear evidence that indeed the applicant and her family are operating on a very tight budget as she said. As things stand, the applicant cannot afford rented accommodation.

I do not find the respondent's argument, that, the applicant can afford to buy another house using the surplus from the sale of the house appealing for the following reasons:

To begin with, this is a house which is registered in the names of both the applicant and her husband. The husband therefore has his half share.

The sale of the house basically means that the husband is forced to sell his share, even if he will recover his share from the net proceeds of the sale.

The bottom line, however, is that he would have lost his house.

When the applicant obtained the loan, she did not register a mortgage bond over this house in favour of the respondent. In other words, she did not use this house as collateral security.

When the applicant took the loan, she never anticipated that she was putting her family house at the risk of being sold for she was supposed to use her salary and terminal benefits to repay it.

If the respondent's managers had not forced the applicant out of employment, the applicant would have continued servicing the debt using her salary.

Now, if the house is going to be sold in a forced sale, it is going to fetch much less, especially in view of the prevailing harsh economic conditions. Chances of getting fair value for the house are very slim.

The family is therefore likely to suffer a huge financial loss, even if it will remain with a surplus after the debt has been paid.

Finding alternative accommodation with the surplus will present its own challenges.

Whilst this might be viewed as ordinary hardship consequent to losing a house, it ought to be weighed against the fact, that, the applicant estimates the open market value of the house to be $300,000.

The question is: is it fair to dispose of a house worth this much just to recover a debt of $36,000 in a situation where the execution debtor has since secured employment and is willing to pay the debt?

The other question is: will this not cause unnecessary great hardship to the family?

In my considered view, in a situation such as the current one, where the execution debtor has since secured employment and is willing to pay off the debt, a debt of $36,000 does not warrant the disposal of a house worth $300,000.

The inconveniences that the applicant's family will suffer, taken cumulatively, will, in my view, constitute great hardship.

The inconveniences include looking for rented accommodation, which, from the look of things, the family cannot afford; relocating; suffering a huge financial loss from the forced sale of the house in the current harsh economic conditions; and trying to purchase another house.

REASONABLE OFFER

Having been satisfied that the family will suffer great hardship, I have to consider if the offer to settle the debt is reasonable.

The applicant said that she only took up employment with Pan African Mining (Pvt) Ltd in July 2015, and is earning a monthly salary of $5,000. She attached a letter of confirmation of employment and salary.

She said that having taken up employment she is now in a position to service the judgement debt.

The letter of confirmation of employment and salary, from Pan African Mining (Pvt) Ltd, which was signed by the Chief Executive Officer, states that due to inadequate cash flows, the company is currently owing the applicant almost two (2) months salary arrears.

The letter further states, that, the company is currently paying 50% of salaries in cycles of three (3) weeks, and that salary transfers to the applicant's bank are at a rate of approximately $1,300 per payment cycle.

The applicant also attached a breakdown of her monthly expenses which stands at $1,800.

It is in light of the foregoing that the applicant is offering to extinguish the debt at the rate of $1,000 per month.

During the hearing, she said that if she is stretched to the limit, in order to save her dwelling, she can offer to pay a maximum of $1,300 per month to the respondent.

She said that she is unable to pay anything beyond that amount as she is the sole breadwinner of the family. She said that she has three (3) children aged 20, 16 and 8 years old, two (2) of whom are still in school.

She attached their birth certificates.

She said that she also stays with her mother in law and attached her national identification document.

She said that she also stays with her husband who is unemployed at the moment.

In response, the respondent said that the total debt, inclusive of interest and costs of suit, now stands at $36,166=65.

It said that if the applicant is going to be paying $1,000 per month, it will take her 36 months, which is three (3) years, to pay the debt in full.

It argued that, that cannot be said to be a reasonable offer considering that this debt has already been outstanding for the past three (3) years.

It argued, that, if the applicant is allowed to settle the debt, at the rate of $1,000 per month, it means that all in all it would have taken the respondent a total of six (6) years to get its money back, which is too long a period.

The respondent even refused to accept the increase of the offer from $1,000 to $1,300 which the applicant made during the hearing.

It stated, that, it can only accept an offer to settle the debt at the rate of $3,000 per month.

The respondent said that the balance of convenience favours it since the debt has been outstanding since February 2013.

What is pertinent about the present matter is that the applicant did not borrow money from a bank, but from her then employer.

To begin with, she is not the one who took the initiative to ask for the money. She had decided to resign and get a retrenchment package at a time when the respondent, her then employer, was offering retrenchment packages to those who wanted to take the offer.

In a bid to keep her for her services, the respondent offered her a loan as an incentive to retain her.

She was not the only one, the Chief Executive Officer and the Finance Director were offered the same incentive.

Shortly after the applicant had taken the loan, there was new management staff for the respondent who made working conditions for the applicant unbearable to the extent that she opted to resign.

Although the respondent says that she resigned mero motu, I buy the applicant's story, that, the working conditions had become very difficult for her and this forced her to tender her resignation.

This is evidenced by the fact, that, having taken the loan on 23 November 2010, on 7 December 2012 she tendered her resignation - just two (2) years later.

When she did so, she had not found alternative employment.

From January 2013 to June 2015 she was not employed.

I do not believe that if all was well at the respondent's, the applicant would have resigned without having obtained alternative employment - especially when she knew that she had not yet paid up the loan.

The loan agreement that she had signed, in 2010, stipulated that in the event of termination of her employment with the company, for whatever reason, the company would withhold any monies due to her from her terminal benefits and pension fund.

At the time of termination, her terminal benefits were indeed withheld and her balance on the loan came down to $35,172 from $67,124.

Therefore, when she left employment, she knew that she still owed the respondent that much.

She also knew that she had no job from which she could get a salary and pay off the balance of the debt with.

With this, I do not believe that she is a person who can be said to have left employment on her own volition, freely, and voluntarily.

Circumstances at work forced her to leave.

It is clear, that, with no job for two and a half years, the applicant found it difficult to service the debt.

Her failure to pay it off, even though she had signed a Deed of Settlement in 2014 promising to have paid it off by May 2015 is understandable.

It cannot be said that she willfully chose not to pay.

Her unemployment explains why three (3) years went by with her having failed to pay it off.

Now that the applicant is employed, she is asking to be given a chance to pay the debt using her salary to save her house which was attached by the Sheriff.

Whilst I agree that a total period of six (6) years is indeed too long, what are worth considering are the circumstances which caused the applicant to fail to service the debt in the first place.

If the respondent's new management had not made the working conditions difficult for the applicant, this matter would not have come to where it is today.

The applicant would have continued in employment and serviced her debt using her salary.

With the offer the applicant has made, yes, it might take her another three (3) years to pay off the debt; but, these three (3) years are going to be different in the sense, that, this time around it will be three (3) years towards the liquidation of the debt.

Monthly, the applicant will be paying some money towards extinguishing the debt.

Three (3) years to repay a debt of $36,000 is, in my view, not unreasonable. Generally, for this amount of money, that is the repayment period the banks normally give.

In any case, the respondent is not a bank, whose business depends on lending money to clients and getting profits therefrom. The respondent is into tourism and survives on tourism, so the delay in getting its money back from the applicant does not in any way affect its operations or business.

Moreover, if the applicant had continued in employment she would have been repaying the debt at the rate of $600 per month which is much less than what she is offering now.

The respondent cannot really cry foul for the other three (3) years that the applicant spent without paying the debt because it was due to its managers that the applicant had to quit employment when the debt still owed and when she did not have an alternative source of income with which she could service the debt.

In her application, the applicant said that she wants the sale suspended on condition that she carries out, fully, the terms of the offer of settlement, and, that if she defaults on any instalment, execution should proceed.

Here, she is showing total commitment to paying the debt. She is putting her head on the block.

I am persuaded by her attitude, that, she needs to be given a chance to save her family home. Once she loses it, the family will not be able to purchase a similar house.

My sense of justice disallows me from sanctioning the sale of this house at this moment in time when things have just turned for the better for the applicant who happens to be the sole breadwinner of her family.

During the hearing, the applicant increased her offer to $1,300.

I will hold her to that amount.

The applicant did not ask for costs. This is a case where I believe that each party should bear its own costs.

In the result, it is ordered that:

1. The sale in execution of Stand 907 Mt Pleasant Heights. Mt Pleasant, Harare be and is hereby suspended on condition the applicant pays to the respondent monthly instalments of US$1,300 with effect from 31 March 2016 until the outstanding debt is extinguished.

2. If the applicant defaults on any one instalment, the respondent shall be entitled to proceed with the sale in execution of the property mentioned in paragraph 1 above.

3. Each party is to pay its own costs.

HH364-15 : TASARA MUGUTI and OTTILIA MUGUTI vs TIAN ZE TOBACCO COMPANY (PVT) LTD and MESSENGER OF COURT
Ruled By: MATHONSI J

For reasons which are not apparent from the papers placed before me, the first respondent sued the first applicant in the Magistrate's Court of Harare in case number 19780/13 for payment of the sum of $73,577=93 together with interest of 5% per annum and costs of suit on the scale of legal practitioner and client and obtained judgement on 7 November 2013.

I say the reasons are not apparent because a claim of that magnitude would ordinarily be made in this court; the Magistrates Court's civil jurisdiction being currently limited to only $10,000.

Subsequently, a writ of execution against immovable property, being Stand 8 Good Hope Township of Lot 7 of Good Hope, Westgate, Harare, was issued on 14 November 2014 after the first respondent had failed to locate sufficient movable assets to satisfy the debt.

That property was then attached in execution by the second respondent in terms of Order 26 Rule 8 of the Magistrates Court (Civil) Rules 1980.

I say that because the second respondent sought authority from the resident magistrate for the area to sell the property, presumably acting in terms of Order 26 Rule 8(2) of that court's Rules which provides, that, whenever a dwelling is attached, the Messenger shall forthwith send written notification to the magistrate and then take no further steps.

The magistrate sent written notification of the attachment to the secretary in the Ministry of Local Government, Public Works and National Housing - who did not bother to respond.

On 19 February 2015, the magistrate wrote to the second respondent in the following:

“Reference is made to my letter to the Secretary dated 2 January 2015. The Secretary has not respondent (sic) to the letter. In terms of Order 26 Rule 8, you are hereby directed to proceed with the sale of four attached properties. Be guided accordingly.

B Pabwe
Resident Magistrate
Harare Civil Court”

After receiving those instructions from the magistrate, the second respondent, who I must stress is an officer of that court charged with the execution of writs coming out of that court, proceeded to advertise the property for sale by public auction on 10 April 2015.

It is that advertisement which has jolted the applicants into action and triggered the filing of this urgent application wherein they seek the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

(a) The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays the judgement in three equal monthly instalments of USD22,054 beginning on the 1st of July 2015 until the debt is settled, and, if applicant defaults on any one payment execution will proceed.

(b) Applicants pay the costs.

INTERIM RELIEF

It is hereby ordered, that, pending the confirmation of this matter, the applicant is granted the following relief -

1. The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays an amount of USD22,054 on or before the first day of each month provided that the first such payment shall commence on or before the 1st of July 2015. In the event that the applicants defaults in respect of any one payment the sale in execution shall proceed.

2. The 2nd respondent shall suspend any action towards the sale in execution of the property referred to in paragraph 1 hereof.

3. A copy of this order or shall be served on the 1st and 2nd respondent's legal practitioners.”

Never mind that the interim relief is the same as the substantive relief; (Kuvarega v Registrar General & Anor 1998 (1) ZLR 188), but, clearly, this is an application made in terms of Rule 348A of the High Court of Zimbabwe Rules 1971 for the stopping of a sale in execution to facilitate settlement of a claim.

Ordinarily, there would be nothing wrong with it except that it has been made in the wrong court.

Rule 348A of the High Court Rules deals with stopping sales in execution conducted by the Sheriff of the High Court in pursuance of a writ issued in terms of Rule 346 of the High Court Rules.

In terms of Rule 348A(1), where a dwelling has been attached, the Sheriff is required to forthwith send the Secretary of the Ministry responsible for the administration of the Housing and Building Act [Chapter 22:07] notification of the attachment.

Subrule (4) allows the Secretary to approach this court, by chamber application, for an order staying the sale.

A judge will issue a provisional order staying the sale if satisfied that there is a reasonable probability that the execution creditor's claim will be satisfied or settled from the National Housing Fund.

In terms of subrule (5a), the execution debtor himself is entitled to make the application where the dwelling is occupied by the execution debtor or members of his family.

This court ruled, in Masendeke v Central Africa Building Society and Anor 2003 (1) ZLR 65 (H)…, that, in terms of Rule 348A(6) any such application shall be treated as urgent as no valid argument can be advanced against the urgent treatment of an application in terms of Rule 348A of the High Court Rules.

A writ issued in terms of Rule 346 is in Form No.36 of the High Court Rules and is issued following the grant of an order by this court and cannot possibly relate to a writ issued following the grant of an order by a magistrate.

The procedure relating to attachment of immovable property in the Magistrates Court is governed by Order 26 Rule 8 of the rules of that court. It provides:

“8. Attachment of dwelling

(1) In this rule -

'dwelling' means a building or part of a building, including a flat, designed as a dwelling for a single family and includes the usual appurtenances and out buildings associated with such a building;

'Secretary' means the Secretary of the Ministry responsible for the administration of the Housing and Building Act [Chapter 22:07].

(2) Whenever a dwelling is attached under Rule 7, the messenger shall forthwith send the provincial magistrate or magistrate of the court from which the warrant of execution was issued, as the case may be, written notification that the dwelling has been attached and is to be sold in execution, and the messenger shall take no further steps in regard to the sale of the dwelling for a period of forty days, pending notification by the magistrate concerned in terms of subrule (4).

(3) Upon receiving notification of the attachment of a dwelling, in terms of subrule (2), the magistrate shall forthwith send the Secretary –

(a) Written notification that the dwelling has been attached under this order and is to be sold in execution; and

(b) Copies of all documents and particulars relating to its attachment.

(4) If, within 30 days after being sent notification under subrule (3), the secretary notifies the magistrate, in writing, that he proposes to satisfy or settle the judgment creditor's claim from the National Housing Fund established by section 14 of the Housing and Building Act [Chapter 22:07], the magistrate shall, without undue delay, notify the messenger in writing.

(5) On receiving notification under subrule (4), the messenger shall –

(a) Inform the judgment creditor of the Secretary's proposal; and

(b) Take no further steps in regard to the sale of the dwelling concerned until a period of sixty days has elapsed from the date on which he received such notification.

(6) For the purpose of calculating any time-limit under this order, any period during which the messenger is required by subule (2) or (5) to take steps in regard to the sale of any dwelling shall be disregarded.”

The provisions of Order 26 Rule 8 of the Magistrates Court (Civil) Rules are similar to those of Rule 348 of the High Court Rules.

They were meant to provide sanctuary to debtors when attachment of dwelling houses became a serious national problem which was rendering a lot of people homeless. The legislature intervened and a fund to cater for such problem was set up.

The High Court Rules went further, in Rule 348A(5a), to provide a remedy to a judgment debtor who has made a reasonable offer to pay, other than placing reliance on the Housing Fund administered by the Secretary, to approach the court to secure a stay of the sale on condition of the offer.

Unfortunately, there is no similar remedy in the Magistrates Court Rules.

Even if it were there, it would be available for enforcement in that court.

What the present applicants have done is to seek to stay proceedings being pursued by another court, which has complete enforcement mechanisms for its orders and Rules that provide for the procedure to be followed, in this court, employing Rules of this court applying to orders issued by this court.

In my view, that is incompetent. You cannot mix oil with water.

Counsel for the applicants conceded, that, the application seeks to stay execution which has been levied in terms of the Magistrates Court Rules. He further conceded, that, it seeks to apply High Court Rules on a matter governed by the Magistrates Court Rules and that it is therefore out of order.

He, however, submitted, that, I must indulge the applicants because there is no provision in the Magistrate Court Act [Chapter 7:10] and the Magistrates Court Rules allowing for such an application to be made. For that reason, the applicants had no option but to come to this court.

This is a matter in which no amount of benevolence or indulgence can save the applicants.

I can simply not entertain an application which has been made in the wrong court and seeks to apply rules not applicable to the case.

The first respondent opposed the application on grounds other than the issue of an approach made to the wrong court.

It stated, in the opposing affidavit of Loveness Ngwanga, its legal counsel, that, the property attached is not a family dwelling as the applicants and their family live at Dunine Farm in Beatrice and that they had in fact consented to the sale of the dwelling by private treaty as far back as January 2014.

It produced evidence, in the form of the Messenger of Court's returns, showing the attachment of their household furniture at Dunine Farm, Beatrice.

In addition to that, the first respondent attached proof that the applicants also own a house in Waterfalls, Harare.

It further asserted, that, the applicants have previously made endless undertakings and proposals to settle the debt which have not been honoured and there is nothing to show that the present offer will be different.

I do not consider it necessary to decide the merits of the application having taken the view that the applicants are in the wrong court.

I must say, however, that, in light of the evidence produced in opposition, the applicants would have had serious difficulties sustaining a case even on the merits.

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

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

This is an application for direct access to this Court.If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed ...

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court.

Background

The applicant owed the second respondent the sum of US$327,345=77 plus interest thereon at the rate of fifty percent per annum. On a date that is not material, the second respondent obtained judgment in the High Court against the applicant for the payment of the debt together with the accrued interest.

The applicant failed to satisfy the judgment debt.

In due course, the first respondent attached the applicant's farm and sold it by public auction. The sale realized the sum of US$205,000. The applicant successfully objected to the sale. The first respondent set the sale aside, accepting that the sale had been conducted in an irregular manner.

It had not been preceded by a nulla bona return against the applicant's movables and the property had been poorly described in the advertisement flighted before the sale.

In his ruling setting aside the sale, the first respondent indicated that he would offer the property for sale by private treaty for the following thirty days on certain specified conditions.

The first respondent proceeded to sell the property to the fourth respondent by private treaty for the sum of US$825,000.

Clearly not anticipating any further objections from the applicant, the first respondent advised the judgment creditor's legal practitioners of the sale by letter, which he also copied to the applicant.

In the same breath, he advised the parties that he had declared the fourth respondent the purchaser of the property and had consequently confirmed the sale in accordance with the rules of court.

The germane part of the letter reads:

“I refer to the sale in the above matter and advise that on 27 February 2018, the Sheriff declared and confirmed the highest bidder, Paperhole Investments (Pvt) Limited, to be the purchaser at the sum of US$825,000 after the property was sold by private treaty.”

The letter advising and confirming the sale at the same time was written on 27 February 2018, the same date on which the sale was concluded.

Upon receipt of his copy of the letter, the applicant approached the first respondent, intending, once again, to object to the sale.

The first respondent raised the defence of functus officio. He advised the applicant that after confirming the sale, his mandate was discharged and the applicant had to approach the High Court for any possible relief.

In due course, the applicant filed an application for review in the High Court, seeking an order setting aside the confirmation of the sale. He alleged that such confirmation was irregular and not in accordance with the rules of the High Court.

The application was opposed by all the respondents save for the third.

In opposing the application before the High Court, the first respondent stated in his opposing affidavit, that, he had declared the fourth respondent as the purchaser and had confirmed the sale in the same breath because it was his reading of the rules of court that the applicant had no right to object to the second sale. It was his considered position that the rules did not permit him to entertain multiple objections in respect of the same property sold in execution.

Dismissing the first respondent's contentions, the High Court upheld, and correctly so in my view, the applicant's right to challenge the second sale.

It found that the applicant's right to object to any sale of his property in execution was not limited by the certain number of objections he had taken.

For as long as there was a sale in execution against his property, the applicant had the right to object to any such sale on the grounds given in the law....,.

It was common cause amongst the parties, that, the applicant was not afforded the mandatory fifteen days within which to lodge the objection to the second sale.

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application for direct access to this Court made in terms of Rule 21 of the Constitutional Court Rules 2016 ("the Rules").

The applicant is Tendai Mashamanda. The first respondent is Bariade Investments (Pvt) Limited, a company duly incorporated in terms of the laws of Zimbabwe. It was the appellant in SC09-20. The second respondent, Puwai Chiutsi, was one of the respondents in SC09-20.

The third respondent, the Registrar of Deeds is a public official appointed in terms of section 4 of the Deeds Registry Act [Chapter 20:05]. The fourth respondent is the Sheriff of the High Court cited as the officer responsible for executing judgments of the High Court.

The fifth respondent, Eliot Rogers, was the fifth respondent in SC09-20.

It is the applicant's case that the Supreme Court, in its determination in SC09-20, infringed several of his constitutional rights. These rights are the following;

(i) The right to the protection of the law which he says is enshrined in section 56(1) of the Constitution;
(ii) The right to a fair hearing in terms of section 69(2) of the Constitution; and
(iii) The right of access to the courts enshrined in terms of section 69(3) of the Constitution.

BACKGROUND

Sometime in 2012, the fifth respondent (Elliot Rogers) obtained judgment in the High Court under HC3331/14 against the second respondent (Puwayi Chiutsi). The court ordered the sale in execution of the second respondent's property known as the remainder of Subdivision C of Lot 6 of Lots 190,191,192,193,194 and 195, Highlands Estate of Welmoed (hereinafter referred to as “the property”).

On 18 September 2017, the first respondent participated in the Sheriff's sale by public auction of the property and was declared the highest bidder after offering to pay USD$270,000.

Thereafter, the second respondent lodged an objection to the confirmation of the sale by the fourth respondent (Sheriff of the High Court) in terms of Rule 359(1) of the High Court Rules 1971 (hereinafter referred to as “the High Court Rules”) and the objection was dismissed.

Subsequently, the second respondent filed a court application under case number HC11349/17 in which he sought the setting aside of the confirmation by the Sheriff of the sale of the disputed property, to the first respondent.

MATHONSI J..., dismissed the application on the basis that the second respondent had conducted himself in a dishonourable and unworthy manner by mis-appropriating trust funds, and that “he had employed every trick in the book to avoid paying his debt” to the fifth respondent.

The second respondent then proceeded, unsuccessfully, to file an urgent chamber application for an interdict against the transfer of the property pending the outcome of the appeal that he had filed.

Notwithstanding the fact that the second respondent had failed to secure an interdict against transfer of the property in question to the first respondent, the latter (Bariade Investments (Pvt) Ltd) submitted it became aware that the second respondent had not only sold the property in question, but had also transferred it into the applicant's name on 8 February 2019 under Deed of Transfer No.708/19.

The fifth respondent (Elliot Rogers) then filed an urgent chamber application under HC1444/19 in which he sought the cancellation of Deed of Transfer No.708/19.

This was on the basis, that, the second respondent's conduct was fraudulent since he had knowingly sold the property which was under judicial attachment without the knowledge of the fourth and fifth respondents (Sheriff of the High Court and Elliot Rogers).

As a result, the fifth respondent argued, the sale in question was null and void.

The court a quo dismissed the application, not on the merits, but on the basis that it could not grant a final order in an urgent chamber application which sought a provisional order.

The fifth respondent went on to appeal to this Court against that decision, and the appeal was heard jointly with the second respondent's appeal.

Thereafter, the first respondent filed an application for the cancellation of Deed of Transfer No.708/19 under HC2620/19.

The court a quo dismissed the application holding that the matter was res judicata because it had already been decided by MANZUNZU J in HC1444/19, a circumstance that rendered the court functus officio.

The court also held, that, a pignus judiciale could not conclusively be considered to have been created over the property in question since the first respondent had not proved the existence of a caveat registered against the title deed in the first respondent's name.

Aggrieved, the first respondent noted an appeal to the Supreme Court ('the court a quo') under case number SC9-20. The argument advanced by the first respondent was that the High Court had erred in coming to the conclusion that the material and live issue of the second respondent's fraud and forgery was not relevant to the just determination of the matter which was before it.

It was the first respondent's further argument, that, the High Court had erred when it came to the conclusion that the judgment of the High Court, per MANZUNZU J, concerned the same subject matter as the application before it.

The first respondent also argued, that, the High Court had erred in not coming to the conclusion that the question of equities was not a live issue before it and that it (the Court) had to determine, instead of, the question of the validity of the sale and transfer to the appellant in view of the pignus judiciale brought about by the attachment in execution.

In disposing of the matter, the court a quo held that the original judgment by MATHONSI J..., had been competently made and that it was an order against the transfer of the property in question otherwise than through the process ordinarily followed after a sale in execution is duly confirmed.

The court a quo went further to hold, that, although the property was still in the second respondent's name, it had ceased to be his to deal with as he wished from the moment that it was attached in execution, and, thereafter, sold to the appellant because of the pignus that was operating against the property.

The court a quo then dealt extensively with the judgment by CHITAPI J under judgment number HH477-21.

In analysing the judgment, the court a quo found that the processes leading to the default judgment granted by CHITAPI J, as well as the order itself, were irregular. That judgment was subsequently reviewed by the court a quo in terms of section 25 of the Supreme Court Act [Chapter 7:13]. The result was that the order of CHITAPI J was vacated.

The applicant was aggrieved and has approached this Court for direct access in terms of section 167(5)(a) of the Constitution of Zimbabwe.

The applicant submits, that, three of his fundamental rights enshrined in Chapter 4 of the Constitution were infringed by the Supreme Court in SC09/20 through judgment number SC24-22.

As already noted, the three rights that the applicant alleges were infringed are the right to the protection of the law as enshrined in terms of section 56(1) of the Constitution, the right to a fair hearing enshrined in section 69(2) of the Constitution, and the right of access to the courts as enshrined in section 69(3) of the Constitution.

The first respondent (Bariade Investments (Pvt) Ltd) has opposed the application and has argued that the applicant lost the appeal on a non-constitutional matter.

The first respondent further argues, that, the court a quo determined the appeal that was before it, prior to dealing with the irregular judgment by invoking section 25 of the Supreme Court Act.

None of the applicant's rights were therefore infringed either by the Supreme Court or by any other person.

It is further argued, that, the provisions of section 25 of the Supreme Court Act are constitutional and that the Supreme Court's action, of invoking that section, are valid.

The fifth respondent (Elliot Rogers) has also opposed the application and his first argument is that the present application is an abuse of court process because the Supreme Court did not infringe any of the applicant's rights in its determination.

He further contends, that, the court a quo acted within its jurisdiction, and that it exercised its review powers according to section 25(2) of the Supreme Court Act.

He further submits, that, a pignus judiciale is a recognized part of our law.

PROCEEDINGS IN THIS COURT

Counsel for the applicant argued, that, it is now trite in this jurisdiction that a party cannot challenge a decision of the Supreme Court on the basis that it was wrong. However, a Supreme Court decision can infringe a party's rights in the manner in which it determines the matter.

He submitted, that, the Supreme Court infringed the applicant's right to equal protection of the law in terms of section 56(1) of the Constitution, the right to a fair hearing in section 69(2), and the right of access to the courts as enshrined in section 69(3) of the Constitution.

Counsel for the applicant further argued, that, the Supreme Court acted without jurisdiction when it set aside the High Court's decision under judgment number HH477-21. He argued that the effect of CHITAPI J's judgment rendered the appeal moot.

According to the applicant, the setting aside of the High Court's decision was unprocedural as the Supreme Court acted outside the record.

It was the applicant's further argument, that, the Supreme Court had erroneously invoked its review authority under section 25(2) of the Supreme Court Act [Chapter 7:13] in reviewing a default judgment.

This, it was submitted, is contrary to its review powers.

It was the applicant's argument that a default judgement cannot be reviewed under the limited review powers granted to the Supreme Court.

Counsel for the applicant further argued, that, the Supreme Court applied a non-existent law.

Whilst the law holds that the Supreme Court cannot be wrong; it cannot, however, invent a law and must always seek to apply an existing law.

Per contra, counsel for the first respondent raised a preliminary point, that, the applicant did not have locus standi to challenge the section 25(2) of the Supreme Court Act portion of the judgment of the Supreme Court.

It was his argument that the judgment dealt with a long-standing dispute regarding execution which had started in 2017 and was completed in 2018. Counsel for the first respondent submitted, that, the applicant only came into the picture in 2019. He further argued, that, in the circumstances, having a financial interest did not endow the applicant with the necessary locus standi.

In response to the point in limine raised by the first and fifth respondents, counsel for the applicant submitted that such an argument was a misdirection. He submitted that the applicant had locus standi on the basis that the Supreme Court infringed his rights in terms of section 56(1), section 69(2) and (3) of the Constitution.

On the merits, counsel for the first respondent submitted that there were no prospects of success in this matter.

He argued that there was no law that was raised by the applicant that would have protected the allegedly infringed rights. Counsel for the first respondent further argued, that, the Supreme Court provided ample authority for the view that a property subject to a pignus judiciale could not be sold.

He argued that the decision made by the Supreme Court was therefore not novel, and, accordingly, the argument by the applicant lacked merit.

He further argued, that, the applicant's submission that a default judgment cannot be reviewed was based on an entirely misplaced principle.

He stated that there was no principle that disabled the review of a default judgement.

Counsel for the first respondent further stated, that, section 25 of the Supreme Court Act gave the Supreme Court the jurisdiction to act in the manner it did. It was his contention that the question of review was addressed and that none of the parties in the Supreme Court were willing to defend the default judgment granted by CHITAPI J.

Counsel for the fifth respondent associated herself with the preliminary point raised by the first respondent in relation to the applicant's locus standi to bring the application.

On the merits, she submitted that the application could not succeed as articulated by the first respondent.

However, she added that the content of the right in section 18(1) of the old Constitution now appears and is subsumed in and under numerous other provisions of the current Constitution which are, for example, section 68, section 69 and section 70. She argued that it is these sections that continue to give life to the right previously protected in section 18(1) of the old Constitution.

She further argued, that, very minimal submissions had been made by the applicant in impugning section 25(2) of the Supreme Court Act.

She submitted, that, the impugned provision would remain valid until declared unconstitutional. She submitted that it was trite in this jurisdiction, that, a court will not readily declare a provision unconstitutional.

It was her argument, therefore, that, if there is an alternative interpretation that avoids declaring a provision invalid, the Court ought to follow that approach.

In the circumstances, she argued that there needed to be more substantial arguments made than a mere reference to constitutional invalidity contained in two paragraphs....,.

ISSUE FOR DETERMINATION

The sole issue that arises for determination in this application is whether or not it is in the interest of justice to grant direct access to this Court.

Applications of this nature are regulated by the rules of this Court. The applicant therefore has to first satisfy the requirements as set out in Rule 21(3) of the Constitutional Court Rules.

It was stated in Liberal Democrats & Ors v The President of the Republic of Zimbabwe E.D. Mngangagwa N.O. & Ors CC07-18…, as follows:

“…, direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant Rules of the Court.”

Rule 21(3) of the Constitutional Court Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”…,.

CURRIE I and De WAAL J in “The Bill of Rights Handbook” 6th edn, Juta & Co (Pty) Ltd, Cape Town, 2013…, discuss the importance of the requirement that an applicant should show that it is in the interest of justice that the application be granted. They state as follows:

“Direct access is an extraordinary procedure that has granted by the Constitutional Court in only a handful of cases….,.

The Constitutional Court is the highest court on all constitutional matters.

If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction.

Moreover, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”

It is settled law that the appellate jurisdiction of the Constitutional Court is triggered only where a constitutional matter arose in the court a quo and was decided by that court: see Sadziwani v Natpak (Private) Limited & Ors CC15-19…,.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

The jurisdictional effect of the definition of a constitutional matter was discussed in Moyo v Sergeant Chacha and Ors CC19-17…, as follows:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”

It also ought to be noted, that, the mere citation of constitutional provisions or alleged infringements of constitutional rights does not mean that a constitutional issue has been raised.

In Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16 the Court had occasion to deal with this aspect. It stated as follows…,.:

“Have the applicants brought to the Court for determination a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution?

The fact that the applicants allege that the respondent has, by the conduct it is alleged to have committed, infringed their fundamental right to fair and safe labour practices enshrined in section 65(1) of the Constitution does not mean that they have raised a constitutional matter.

It is for the Court to decide whether the determination of the legality of the conduct of the respondent, if proved, would require the interpretation and application of section 65(1) of the Constitution.”

The applicant in casu merely challenges the correctness of the findings made by the court a quo but no constitutional issues arise therefrom.

In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…, the Court discussed the test to be applied in determining whether or not the court a quo determined a constitutional matter. It held as follows:

“The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear. It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution.

There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.”…,.

The applicant alleges, that, his right to equal protection of the law, in terms of section 56(1) of the Constitution, was violated by the manner in which the court a quo disposed of the matter.

In the court a quo was an appeal from the decision of the High Court, which decision was not based on the enforcement or interpretation of the Constitution.

The court a quo determined, that, it was clear that the second respondent could not dispose of the property whose sale the court, under HC604/18, had confirmed [which, in our view, was correct].

Once the Sheriff's sale was confirmed by the High Court, the second respondent could no longer deal with or dispose of the property as he wished. The decision under HH604-18 was competently made and should remain extant.

It was further determined by the court a quo, that, the second respondent, being a senior legal practitioner, could not have failed to appreciate that he was acting contrary to law.

It was further determined, that, because there was a pignus judiciale over the property, the second respondent did not have the legal competency to dispose of the property after it was attached.

The decision of the court a quo was made in accordance with the law. I find nothing to fault in the reasoning of the court a quo on this point. The court a quo acted within the confines of the law, and, as determined in Denhere, supra, the Court remarked thus at p24 of the judgment:

“When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.”

Such determination by the court a quo cannot be said to have been irregular.

I find no basis for the suggestion that the applicant's rights, under section 56 of the Constitution, were violated by the court a quo.

There is no indication as to how the court a quo could have violated the applicant's right to equal protection of the law.

The allegations by the applicant are meritless and thus it is not in the interest of justice to grant an order of direct access to this Court.

SC62-23 : GOLDLOCK INDUSTRIES 2003 (PVT) LTD vs SHERIFF OF ZIMBABWE and INTERFIN BANKING CORPORATION and AL SHAMS GLOBAL BVI LTD and JAYESH SHAH and OTHERS
Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's application for a declarator.FACTUAL BACKGROUNDThe appellant is a company under liquidation. The first respondent (Sheriff of Zimbabwe) is cited in his official capacity. The second respondent (Interfin Banking ...

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's application for a declarator.

FACTUAL BACKGROUND

The appellant is a company under liquidation. The first respondent (Sheriff of Zimbabwe) is cited in his official capacity. The second respondent (Interfin Banking Corporation) is a banking institution incorporated in terms of the laws of Zimbabwe. The third respondent (Al Shams Global BVI Limited) is a company incorporated in terms of the laws of the British Virgin Islands. The fourth respondent (Jayesh Shah) is a male adult who is also the director of the third respondent. The fifth and sixth respondents (Registrar of Deeds and Master of the High Court) have been cited in their official capacities.

On 12 December 2019, the appellant filed an application for a declarator through its liquidator, who was acting in terms of a certificate of appointment issued by the sixth respondent. In that application, the appellant sought a declaration to the effect, that, it is the owner of a certain piece of land known as Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore held under Deed of Transfer No. 8810/2003 (hereinafter called the property).

The appellant also wanted delivery of the original copy of the Deed of Transfer No. 8810/2003, under which the property was held, from the first and third respondents.

The events that led to the application are as follows:

On a date that was not specifically stated, the appellant obtained a loan from the second respondent (Interfin Banking Corporation) which was secured under Mortgage No.2069/2010. The second respondent subsequently went under liquidation, but, before that, it ceded the debts and rights in the mortgage bond registered in its favour, to the third respondent (Al Shams Global BVI Limited). The third respondent later obtained a judgment against the appellant and issued a writ against the property which was sold in execution.

During the sale of the property, which had been declared specially executable by the court on 4 May 2016, the appellant instituted voluntary liquidation proceedings. The first respondent (Sheriff of Zimbabwe) placed the property under a caveat on 24 August 2016. The appellant was placed under provisional liquidation on 9 August 2017 and the order was confirmed on 11 October 2017.

The first respondent conducted a sale in execution on 6 February 2017.

Initially, the fourth respondent (Jayesh Shah) was confirmed as the highest bidder but failed to pay the purchase price. The second highest bidder, who happened to be the third respondent (Al Shams Global BVI Limited), was offered the property and was subsequently confirmed as the winning bidder.

The appellant claimed, that, the sale had been confirmed without it being given the required fifteen (15) days notice to object to the sale in terms of the repealed High Court Rules 1971. In addition, the appellant claimed, that, there had been a sham scheme by the third and fourth respondents, with the fourth respondent being a major shareholder of the third respondent. The appellant claimed, that, the fourth respondent was competing with himself by offering the highest bid which he failed to pay so that the third respondent would be declared the second highest bidder.

When the order for the final liquidation of the appellant was granted by the court, on 11 October 2017, the property had not been transferred to the third respondent.

The appellant's liquidator requested the first respondent to give him the title deeds of the property. However, the first and third respondents are said to have refused to hand over the original copy of the Deed of Transfer.

This prompted the appellant to file an application for a declaratur in the court a quo.

It is in that application that the liquidator of the appellant disclosed that he had already sold the property to one Mr Manyika, on 24 July 2017, for the amount of US$190,000 and that the purchaser had paid the full purchase price and was awaiting transfer of the property.

The liquidator submitted, that, he was allowed, at law, to sell the mortgaged property in order to pay off creditors.

The application was opposed by the second respondent who contended, that, it had been unnecessarily joined to the proceedings as it would not be affected by the relief sought by the appellant.

The third respondent also opposed the application and raised four points in limine:

(i) Firstly, the third respondent argued, that, there was an existing matter pending before the court a quo, under HC11203/17, which was premised on the same cause of action as the court application that was before the court.

(ii) The second issue raised was that the non-joinder of Mr Manyika as a party to the proceedings was fatal to the application.

(iii) The third respondent also argued, that, the appellant ought to have sought leave to institute proceedings against the second respondent which was under liquidation.

(iv) In addition, the third respondent contended, that, the application was fatally defective due to the appellant's failure to obtain leave to institute proceedings against it as it is a peregrinus.

In relation to the merits of the case, the third respondent opposed the application on the basis, that, the appellant had no real right of dominium over the property which had been declared specially executable by the court. The third respondent asserted, that, the property had been sold in execution before the appellant was placed in liquidation. It also argued, that, as the property had been bonded owing to the debt due to the third respondent, as ceded by the second respondent, the appellant ought to have sought the consent of the second and third respondents before selling the property.

Moreover, the third respondent prayed for the application to be dismissed, with costs borne by the liquidator of the appellant in his personal capacity.

The fourth respondent also opposed the application. As the fourth respondent had deposed to the third respondent's opposing affidavit, in his capacity as its director, he associated himself with the averments made in that affidavit.

Nonetheless, the fourth respondent added that the application was unwarranted and motivated by a desire to assist the appellant's shareholders. He argued, that, there was no basis, at law, in terms of which the appellant's liquidator could set aside an entire sale in execution and sell the property to a third party.

He stressed, that, liquidation does not automatically set aside a sale in execution and permit the appellant to resell the property.

Additionally, the fourth respondent submitted, that, the order confirming the liquidation of the appellant only set out parts of section 221(2)(a)–(h) of the repealed Companies Act [Chapter 24:03] (hereinafter referred to as the Act) as the powers which the liquidator could exercise in terms of the Act. As the liquidator of the appellant relied upon other provisions of the Companies Act, the fourth respondent was of the view, that, he was acting in breach of the terms of his appointment.

Lastly, the fourth respondent alleged collusion between the appellant's legal practitioners and its liquidator and prayed for costs de bonis propriis to be granted against the legal practitioners.

Regarding the merits of the case, the appellant submitted, that, the liquidator had acted in terms of section 276 of the Companies Act which empowered him to recover and take the assets of the appellant under liquidation.

The appellant submitted, that, as the transfer of the property to the third respondent had not taken place, the property was still owned by the appellant.

In addition, the appellant argued that the first respondent had not notified its directors, at the material time, of the sale of the property before confirming it, and this nullified the whole procedure as it was done contrary to the rules of the court. The appellant also argued, that, the sale was invalid because it was not given fifteen (15) days notice within which to object to the confirmation of the sale in terms of the rules.

Lastly, the appellant asserted that in terms of section 213 of the Companies Act, transfer of the property could not proceed without the leave of the court.

Per contra, the third and fourth respondents argued that the judicial attachment of an immovable property creates a judicial mortgage, and, because of this, the appellant was deprived of any rights over the property.

The respondents also submitted, that, when the property was attached, it became vested in the first respondent and nothing could be done without the first respondent's consent or authority.

Furthermore, the respondents were of the view that, as the second respondent had ceded the debt to the third respondent, the third respondent assumed the position of caveator whose interests in the property were protected by the caveat. The appellant therefore should have sought the consent of the third respondent before selling the property.

Moreover, the respondents submitted that the Deposit Protection Corporation had the right to restrain dealings with the mortgaged property until payment of the debt and interest in full. As such, the disputed property could not be sold without the consent of the Deposit Protection Corporation.

The court a quo dismissed the points in limine raised by the third respondent.

It found, that, the preliminary point of lis pendens was devoid of merit as the litigation in HC11023/17 did not involve the same parties as those in the application before it.

The court also dismissed the point, that, the appellant should have sought leave to institute proceedings against the third respondent which is a peregrinus. The court a quo held, that, the conduct of the third respondent showed that it had submitted to the jurisdiction of the court.

Furthermore, the point in limine to the effect that there was a material non-joinder of Mr Manyika was also dismissed as the court found that such non-joinder was not fatal to the application.

On the merits, the court a quo found that the application by the appellant sought the setting aside of the sale of the property to the third respondent - which property had already been declared specially executable by the High Court.

It was the court's observation, that, such an order could not be sought without first seeking the setting aside of the order which declared the property specially executable.

In reference to the appellant's claim, that, the sale of the property to the third respondent was not perfecta, the court a quo held that the judicial sale had been completed by the time the appellant was declared to be under provisional liquidation on 9 August 2017.

The court further noted, that, the appellant purported to sell a property that the first respondent had already sold to the third respondent in the execution of a judgment debt. Likewise, the court a quo held that there was a judicial caveat on the property which the appellant ought to have respected.

In addition, the court a quo was of the view that the appellant's conduct frustrated the transfer of the property to the third respondent when the sale was perfecta. The court held, that, the attachment of the property by the Sheriff vests a real right in the judgment creditor which means the property cannot be disposed of without the judgment creditor's consent. As such, the appellant could not deal with the property as it pleased.

It was the court's finding, that, in light of the appellant's failure to set aside the order that declared the property specially executable, or nullifying the writ which attached the property, the disputed property did not form part of the appellant's assets. The application was subsequently dismissed for lack of merit.

It is against this decision that the appellant has noted an appeal on the following grounds:

GROUNDS OF APPEAL

The grounds of appeal are as follows:

1. The court a quo erred in holding, that, the contention of the appellant was that the sale was not perfecta and should be set aside because transfer had not been effected and proceeded to accept that the first respondent had followed and fulfilled the correct procedure.

2. The court a quo erred and grossly misdirected itself in not finding that the first respondent failed to follow due process when conducting and confirming the sale thereby rendering the sale not perfecta.

3. The court a quo erred in holding, that, the third respondent had become the owner of Stand 666 Marlborough Township despite the fact that no transfer had been effected by way of registration of title at the Deeds Registry.

The relief sought by the appellant is as follows:

“RELIEF SOUGHT

WHEREFORE, the appellant prays for the following relief:

1. That, the instant appeal succeeds.

2. That, the order of the High Court be and is hereby set aside and substituted with the following:

“(a) That, the immovable property, namely, a certain piece of land situated in the District of Salisbury called Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore held under Deed of Transfer No. 8810/2003 forms part of the assets of the applicant company in liquidation.

(b) That, the first and third respondents deliver the original copy of the Deed of Transfer No. 8810/2003 in terms of which applicant holds a certain piece of land situated in the District of Salisbury called Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore to the applicant within ten (10) days from date of service of this order.”

Before this Court, the following submissions were made:

APPELLANT'S SUBMISSIONS

Counsel for the appellant submitted, that, the effect of the order placing the appellant under liquidation was the creation of a common law principle known as concursus creditorum which is codified in terms of section 212 of the repealed Companies Act. He submitted, that, section 213 of the repealed Companies Act provided for the stay of any proceedings against the property of a company under liquidation. As such, the property in question became part of the company's estate upon the granting of the order of liquidation.

Furthermore, counsel submitted that ownership of the property remained vested in the appellant in whose name the title deed was registered.

Counsel for the appellant also submitted, that, the judicial sale of the property was not perfecta as a sale only becomes perfecta upon registration with the Deeds Registry.

Moreover, counsel argued that the judicial attachment of the property created a judicial mortgage (pignus judiciale) which did not have greater powers than an ordinary mortgage and had no effect on the liquidation proceedings.

SECOND RESPONDENT'S SUBMISSIONS

In response, counsel for the second respondent submitted that it would abide by the decision of the court as it had no direct and substantial interest in the matter and the relief sought did not affect it.

THIRD RESPONDENT'S SUBMISSIONS

Counsel for the third respondent submitted, that, by the time the appellant was placed under liquidation, the judicial sale of the property was perfecta. Due to this, section 213 of the repealed Companies Act was inapplicable as the property did not form part of the assets of the appellant which the liquidator had the power to recover.

Counsel further submitted, that, registration of a title deed in one's name was not the sole proof of ownership of immovable property. He stated that there are special circumstances where the court goes beyond the title deed to ascertain the true owner of the property.

He averred, that, in casu, the judicial sale of the property and payment of the purchase price, were special circumstances that warranted a finding by the court a quo that ownership of the property had passed to the third respondent.

FOURTH RESPONDENT'S SUBMISSIONS

The fourth respondent submitted, that, section 213(b) of the repealed Companies Act makes an exception to the provision that anything done after liquidation proceedings have commenced is void.

He further submitted, that, the court a quo had resolved the matter on the basis of equity as the sale had been confirmed and the third respondent had paid the purchase price and all that was outstanding was the transfer of the property and registration of the title deed in its name at the Deeds Registry.

ISSUES FOR DETERMINATION

The issues for the determination of this appeal are as follows:

1. Whether or not the court a quo erred by finding that the third respondent is the owner of Stand 666 Marlborough Township.

2. Whether or not the court a quo erred in finding that the judicial sale was perfecta.

APPLICATION OF THE LAW TO THE FACTS

WHETHER OR NOT THE COURT A QUO ERRED BY FINDING THAT THE THIRD RESPONDENT IS THE OWNER OF STAND 666 MARLBOROUGH TOWNSHIP

The issue of whether or not the court a quo erred in finding, that, the third respondent is the owner of Stand 666 Marlborough Township is central to the determination of what prevails over the other between a liquidation and a judicial attachment.

Counsel for the appellant argued, that, in terms of section 213 of the repealed Companies Act, all actions and proceedings against a company in liquidation cannot to be proceeded with without the leave of the court. As the transfer of the property had not been done when the appellant was placed under final liquidation, he submitted that the third respondent had to seek leave from the court for the transfer to be effected.

In addition, counsel for the appellant maintained that the appellant holds a real right over the property whereas the third respondent only has a personal right.

The thrust of these submissions is that since the appellant had been placed under liquidation, the liquidator had the authority to dispose of the appellant's assets despite the fact that there was a judicial attachment or caveat operating against the property in question.

The term 'real right' is defined in section 2 of the Deeds Registry Act [Chapter 20:05] as “any right which becomes a real right upon registration.”

In the case of Mavhundise v UDC Ltd & Ors 2001 (2) ZLR 337 (H)…, the court held that:

“Ownership of land can only be acquired by transfer of the ownership from the previous owner, and such transfer must be registered in the Deeds Registry.”

In light of the above, it is clear that a real right in an immovable property is established by the registration of that right in the Deeds Registry.

Nonetheless, this Court, in the case of CBZ Bank Limited v (1) David Moyo (2) Deputy Sheriff, Harare SC170-18, stated the following:

“In any event, the registration of transfer in the Deeds Registry or registration of cession at the offices of a local authority or Deeds Registry does not always reflect the true state of affairs. A title deed or registered cession is therefore prima facie proof of ownership or cessionary rights which can be successfully challenged. When the validity of title or registered cession is challenged, it is the duty of the court to determine its validity in order to make a ruling which is just and equitable.”

From the above, it is pertinent to note that there are instances where the registration of a real right to an immovable property at the Deeds Registry can only be prima facie proof of ownership. This prima facie right is subject to challenge by any other person who may claim to have a real right over the same property.

These special circumstances were explained by this Court in CBZ Bank Limited v (1) David Moyo (2) Deputy Sheriff Harare SC170-18 in the following manner:

“Special circumstances exist where a purchaser has failed to have the property registered in his name, when he and the seller have demonstrated a clear intention to effect transfer, and when there was no legal impediment to such transfer or the impediment does not justify the refusal to grant protection to the purchaser.”

In the case of Van Niekerk v Fortuin 1913 CPD 457, the Court highlighted that:

“It seems to me that the plaintiff, being a judgment creditor, and the property being still registered in the name of the defendant, prima facie the plaintiff has the right to ask that the property shall be seized in execution, unless the party interested can show that there are special circumstances why such an order should not be granted.”

Based on the above, the court a quo found that the sale of the property to the third respondent had been completed before the appellant was placed under liquidation, hence, there was no legal impediment affecting the sale.

This finding cannot be faulted.

In addition, the first respondent had attached the property in question and issued a writ of execution against it. The appellant did not challenge the attachment and the writ of execution was not set aside.

The writ is still extant and valid.

The effect of a judicial attachment of immovable property was dealt with by the court in the case of Cold Chain Zambia Limited v Kingsley (nee Nehonde) & Ors HH370-20 as follows:

“The attachment in execution of property, at the instance of the judgment creditor, creates a real right in favour of the judgment creditor in the property in question.”

The above puts to rest the contention by the appellant, that, the court a quo erred by declaring that the third respondent had become the owner of the property in the absence of transfer from the appellant and registration of ownership at the Deeds Registry.

Moreover, in the case of The Sheriff for Zimbabwe & Anor v Willdale Limited t/a Willdale Bricks HH387-17, MAKONI J…, cited with approval the case of Liquidators Union and Rhodesia Wholesale Limited v Brown & Company 1922 AD 549…, as follows:

“…,. While an ordinary arrest of the property under the Roman-Dutch law gives no preference, an arrest effected on property in execution of a judgment creates a pignus praetorium or to speak more correctly, a pignus judiciale, over such property.

The effect of such a judicial arrest is that the goods attached are thereby placed in the hands or custody of the officer of the Court. They pass out of the estate of the judgement debtor, so that, in the event of the debtor's insolvency, the curator of the latter's estate cannot claim to have the property attached delivered up to him to be dealt with in the distribution of the insolvent's estate.”…,.

In light of the above authority, I am of the view that the appellant cannot claim to have a right over the disputed property as it is no longer part of its assets.

The appellant tried everything so that the property could not be attached.

The property is vested in the first respondent and awaiting transfer, whilst the third respondent has a real right of ownership over it. It is on this basis, that, I am inclined to remark that since judicial attachment took place first, it prevails over liquidation.

Therefore, the appellant is not the owner of the property.

WHETHER OR NOT THE COURT A QUO ERRED BY FINDING THAT THE JUDICIAL SALE WAS PERFECTA

The appellant contends, that, the court a quo erred by failing to find that the first respondent did not follow due process in conducting the sale in execution. The appellant argues, that, the court a quo did not make a determination on the issue of whether or not the first respondent confirmed the sale without giving the appellant the requisite notice.

It is on this basis, that, the appellant submits that the appeal ought to succeed as the court a quo misdirected itself in a way that vitiates the proceedings a quo.

The issue of whether or not the appellant was duly notified of the sale of the property before it was confirmed by the first respondent is fundamental to the determination of whether or not the sale in execution was perfecta at the time the appellant was declared to be under liquidation.

This issue can be resolved by determining whether or not sufficient evidence was placed before the court a quo to support its finding.

The relevant provision in terms of which notification of a judicial sale is given to interested parties before confirmation is Rule 352 of the repealed High Court Rules 1971 which states the following:

“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.”

From the above, it is evident that the appellant ought to have been notified of the sale of the property by the first respondent.

As the first respondent was not active in the proceedings a quo, no such evidence was produced to counter the appellant's claim that it was not notified of the sale.

Instead, the evidence that was before the court a quo was in the form of a notice which showed that the third respondent had been notified of the sale before it was confirmed. The appellant was also copied this notice advising the parties of the sale of the property.

The third respondent made reference to a letter dated 24 July 2017 written by the appellant's legal practitioners to the first respondent in which the appellant proposed to settle in full, the debt due to the third respondent, against the release of the property from attachment. The third respondent argued, that, this letter was proof that the appellant had been notified that the property would be sold in execution.

The court a quo held that there was nothing amiss in the manner in which the first respondent conducted the sale in execution.

I am inclined to agree with the finding of the court a quo.

This is because the evidence adduced by the third respondent before the court a quo demonstrated, that, the appellant was notified and was aware that the property was being sold in execution. The fact that the appellant wrote a letter to the first respondent, proposing to settle the debt in full so that the property would not be disposed of, buttresses the fact, that, it was aware that the property was up for sale. It is probable that the appellant was served with the notice of the sale of the property before the sale was confirmed.

It is trite law, that, an Appellate Court is slow to interfere with the exercise of discretion by a lower court. In the case of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S), GUBBAY CJ…, said:

“These grounds are firmly entrenched. It is not enough that the Appellate Court considers that if it had been in the position of the primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution provided always it has the materials for so doing.”

It is my considered view that the decision of the court a quo, that the sale of the property was perfecta, cannot be faulted. The property was sold in accordance with the provisions of the law and the purchase price was duly paid by the third respondent.

In light of this, the appellant's grounds of appeal lack merit. There is no need to depart from the practice that costs follow the cause.

DISPOSITION

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

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Judicial Sale in Execution re: Approach, Suspension, Setting Aside, Foreclosure Proceedings and Forced Sales

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

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Ruled By: MUREMBA J

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Ruled By: MATHONSI J

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Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

SC62-23 : GOLDLOCK INDUSTRIES 2003 (PVT) LTD vs SHERIFF OF ZIMBABWE and INTERFIN BANKING CORPORATION and AL SHAMS GLOBAL BVI LTD and JAYESH SHAH and OTHERS
Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

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Judicial Sale in Execution re: Approach, Suspension, Setting Aside, Foreclosure Proceedings and Forced Sales

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE Ruled By: TSANGA J

HH158-16 : CYNDRELLA MASIMBE vs RAINBOW TOURISM GROUP Ruled By: MUREMBA J

HH364-15 : TASARA MUGUTI and OTTILIA MUGUTI vs TIAN ZE TOBACCO COMPANY (PVT) LTD and MESSENGER OF COURT Ruled By: MATHONSI J

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

SC62-23 : GOLDLOCK INDUSTRIES 2003 (PVT) LTD vs SHERIFF OF ZIMBABWE and INTERFIN BANKING CORPORATION and AL SHAMS GLOBAL BVI LTD and JAYESH SHAH and OTHERS Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

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HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

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