No. SC 22/06
Application No. 104/06
DAVID LIONEL REED (2) SHERIFF
FOR ZIMBABWE (3) GERALD LENARD
COURT OF ZIMBABWE
JUNE 7 & 29, 2006
for the applicant
for the first respondent
for the third respondent
appearance for the second respondent
GWAUNZA JA, In Chambers in terms of r 31 of the Supreme Court Rules.
applicant seeks leave to appeal, out of time, against a judgment of
the High Court passed on 22 February 2006.
asserts that following renunciation of agency by his legal
practitioners after the matter was heard in the court a
he personally took on the task of constantly enquiring with the
Registrar of the High Court, whether the judgment was ready. He
adds that up until 24 March, 2006, when he was, finally, able to
collect the judgment in question, the answer to his enquiries as
its availability had been in the negative. The applicant professes
ignorance as to the date on which the judgment was handed
saying neither he nor his erstwhile legal practitioner Mr Kamdefwere
had been notified of this fact.
applicants assertion, that he checked for the judgment constantly
between January and 24 March 2006, is not supported by any
evidence. He has, however, filed a supporting affidavit from his
former legal practitioner, Mr Kamdefwere,
who could only confirm that the applicant had indeed called him on 24
March 2006, to advise that the judgment had been handed down.
the applicant and Mr Kamdefwere
assert that further delay in noting the appeal (which the latter was
given instructions to file, having resumed agency) had been
occasioned by their failure to locate some of the documents related
to the matter, which the applicant had collected from the legal
practitioner upon the latters earlier renunciation of agency.
these two grounds, the applicant urges me to find that he has
tendered a reasonable explanation for the delay in noting the appeal
respondents, who oppose this application, dispute that the
applicants explanation is reasonable. They argue that the
like the other parties to the dispute, must have received
notification from the registrar of the court a
that the judgment was to be handed down in motion court, as is the
practice. Alternatively, that had he been more diligent in
enquiries concerning the judgment, he would not have failed to see
the motion court roll indicating when the judgment was to
I find on
the evidence before me, that the possibility cannot be discounted,
that the applicant may indeed not have received notice
as to the date
on which judgment was to be handed down. His assertion that at some
point before the judgment was handed down, his
lawyers had renounced
agency, has not been disputed. It is in fact, corroborated by Mr
He was therefore, for all intends and purposes, a self actor on the
occasions he said he made enquiries about the judgment. It
assumed that he could not, in that capacity, have had knowledge on
the inside workings of the registrars office concerning
court rolls and the handing down of judgments. For its part the
registrars office might have had problems determining
to whom to
address the applicants notice concerning the date on which
judgment was to be handed.
persuaded in the light of all this, that the applicant may be given
the benefit of the doubt, and find, accordingly, that he
proffered a reasonable excuse for not timeously filing his notice of
appeal against the judgment of the court a
passed this first hurdle, the applicant still has to prove that he
has good prospects of success on the merits of his appeal.
determine this matter it is necessary to consider the background to
the dispute between the parties.
applicant, as surety, defaulted in repaying a certain loan advanced
by Stanbic Bank, to a company in which he had an interest.
default judgment was obtained against him for the amount owed.
Rather than seek to enforce the default judgment, Stanbic Bank
its rights therein to the first respondent. The first respondent
subsequently caused the applicants immovable property
attached, and later sold by public auction on 27 July 2001. A
company called Corundum Mining Company (Private) Limited objected
the confirmation of this sale by the Sheriff, on the ground that it
had previously bought the same property from the applicant
entitled to transfer of such property into its name.
the Sheriff proceeded despite this objection, to confirm the sale,
Corundum Mining Company resorted to a court application
setting aside of the sale. At this juncture the first respondent,
who as an interested party had not been cited in the
Corundum, successfully petitioned the court to be joined as a party
to the proceedings. The first respondent made
it clear that while
he agreed with Corundum Mining (Private) Limited that the sale in
execution had to be set aside, he did not agree
with the reason
tendered by the company for such nullification. His objection to
the sale was based on what he perceived to be
an unreasonably low
purchase price realised for the property. The parties subsequently
entered into negotiations, which culminated
in a consent order
setting aside the sale in execution. The basis for the negotiated
settlement was that the price realised at
the sale by public auction
was unreasonably low. It is the first respondents evidence that
the parties further agreed that the
property be sold by private
treaty, consequent upon which advertisements for the sale of the
property by private treaty were flighted
in the newspapers. It is
not in dispute that the property was then sold to the third
respondent by private treaty, for $23 750
000. The sale was
thereafter confirmed by the Sheriff.
Following this sale, the
applicant, for the first time, raised an objection to the sale and
filed an urgent chamber application in
which he sought a provisional
order interdicting the Registrar of Deeds from transferring the
property to the third respondent, pending
an application that he
wished to file, for the setting aside of the sale. The applicant
cited an unreasonably low price as a reason
for seeking the
nullification of the sale. For this he relied on what he termed a
desk top evaluation by Gabriel Real Estate,
which had placed
the forced sale value of the property at between $50 million and $60
million. The High Court dismissed the application
in what appears
to have been a final order. That the High Court considered the
merits of the application and issued a final rather
provisional order, is evidenced by the applicants initial grounds
of appeal against the courts order. The second ground
read as follows:
learned judge erred in denying that the professional opinion by
Gabriel Real Estate Agents as to the value of the property at
time it was sold was a true indication of the value of the property,
pending the compilation of a comprehensive report.
third ground of appeal charged that the learned trial judge had erred
by deciding that the applicant had no prospects of success
application he meant to file, for the setting aside of the agreement
of sale between the Sheriff and the third respondent.
notice of appeal containing the two grounds cited was, for reasons
not too clear from the papers, withdrawn on 19 February 2003.
Almost five months later, on 5 August 2003, the appellant filed an
application to this Court, seeking to reinstate the appeal withdrawn
in February 2003. The Supreme Court dismissed the application.
a legal and procedural standpoint the dismissal of the applicants
application for the reinstatement of this appeal should
finality to the litigation surrounding this dispute.
however, not the case, as the applicant went back to the High Court
and, in a fresh application founded on a different cause
he again sought to have the same sale by private treaty, set aside.
As the learned judge a
correctly pointed out in his judgment, the applicants fresh
application was filed fourteen months after the sale he sought to
have set aside was concluded, and thirteen months after such sale was
confirmed by the Sheriff.
argued in the court a
and for the first time, that the sale of the property by private
treaty was null and void as it did not comply with subrule 358(1)
the High Court Rules, in particular that neither he as the judgment
debtor, nor a judge, had consented to the sale by private
The subrule reads as follows:
all persons interested including the judgment debtor consent thereto,
or otherwise with the consent of a judge, the Sheriff
may sell the
movable property attached in execution otherwise than by public
auction, if he is satisfied that the price offered is
reasonable and that the property is unlikely to realise a larger sum
by a sale at a public auction.
respondents opposed the application, and argued that the sale by
private treaty had been conducted in terms of subrule 358(2)
358(1) of the rules. The respondents contended that subrule 358(2)
provided for a sale by private treaty after
a sale by public auction has taken place and the Sheriff is not
satisfied that the highest price offered is reasonable.
argued further that, since the condition precedent in subrule 358(2),
(that the property must have been offered for sale at a
auction before being sold by private treaty), had, in the view of the
respondents, been met, there was no need to secure the
consent of the
parties. In other words their case was that subrule 358(1) did not
was persuaded by the respondents contention and accepted as
correct, their interpretation of the law as set out in r 358.
question to be considered against this somewhat long background to
the dispute, is whether the applicant has good prospects of
on the merits of his appeal. A closer analysis of the facts of the
case as outlined, reveals what in effect are two separate
applications by the applicant, based on the same facts, involving the
same parties, and seeking exactly the same relief. The only
difference between the two cases is the basis for the application.
It is at the juncture pertinent to note that there was nothing
stop the applicant, in his first application, from citing as an
additional ground for the setting aside of the sale in question,
ground that he has taken up in the second application, that is the
alleged non compliance with subrule (1) of r 358.
the first application was heard, on the merits, and dismissed by the
High Court. By dismissing his application for
leave to appeal
against this judgment out of time, this Court effectively and finally
resolved the dispute. Surprisingly, neither
the respondents nor the
considered the correctness or otherwise of the applicant literally
attempting to, as it were, have a second
bite of the
through his second application. That application clearly sought to
resuscitate a matter against which a defence of res
could, in my view, have been successfully raised. The learned trial
judge, who it must be mentioned, was the one who had heard the
application and dismissed it, went on to hear the matter all over
again, that is the second application, and made a ruling
based on the
new argument advanced by the applicant.
before me, the respondents, while not specifically referring to res
as a defence, emphasised the point that the applicant had on numerous
occasions taken the same dispute to court under various guises,
resulting in the matter dragging on for over six years. Strong
argument was also advanced on the need to bring finality to
I fully agree with these contentions, as, indeed, did
the learned trial judge.
that as it may, correctly or not, the learned trial judge considered
the arguments concerning the interpretation of r 358, and
that subrule 2 rather than subrule 1 of the rule, applied to the
circumstances of this case. I am satisfied, for what
it is worth,
that his interpretation was correct. There is no dispute that the
property in question was first sold by public auction.
Nor is it
disputed that the Sheriff, although he did so after initially
confirming the sale and after an application had been made
to set such sale aside, realised and was satisfied that the price
that the property had fetched at the public auction sale
unreasonably low. This reality in my view stands despite the fact
that the sale was set aside following negotiations and agreement
between the parties and the Sheriff.
As correctly contended for the
third respondent, no time limits are imposed by subrule (2) of r 358
as to when the decision by the
Sheriff to reject a sale by public
auction and resort to a sale by private treaty, should be made.
There is therefore no merit
in the argument advanced for the
applicant that the confirmation of the sale by public auction, by the
Sheriff, effectively barred
him from dealing with the property under
subrule 2 of r 358. The situation might, however, have been
different had the purchaser;
(i) not agreed to the setting
aside of the sale, and
to take transfer of the property in question.
as indicated, was not the case.
When all is considered, I am in
the result not satisfied that the applicant has proved that he has
good prospects of success on the
merits of his proposed appeal.
the premises, the application for leave to appeal out of time, is
dismissed with costs.
E G Musimbe & Partners,
first respondents legal practitioners
K Hove & Partners,
third respondents legal practitioners