Chihanga And Another v Sheriff of the High Court And 3 Others (HB 98 of 2021; HC 2141 of 2019) [2021] ZWBHC 98 (3 June 2021)

SIMUKAI GIBSON CHIHANGA

And

BEHOME GUEST HOUSE (PVT) LTD

Versus

SHERIFF OF THE HIGH COURT N.O

And

ENGEN OIL ZIMBABWE (PVT) LTD

And

NEWTON MAKAVA

And

GIDEON NGWENYA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 17 JULY 2020 AND 3 JUNE 2021

Opposed Application

Advocate S Siziba, for the applicants

No appearance for the 1^st, 2^nd and 3^rd respondents

S Mguni, for the 4^th respondent

TAKUVA J: In this application the applicants seek an order in the following terms;

“1. The first respondent’s decision confirming the sale under case No. HC 4159/17, SSB 47/18 be and is hereby set aside.

2. The first, second and third respondents be and are hereby ordered to pay costs of this application only if the same is opposed.”

BACKGROUND FACTS:

The 2^nd respondent obtained judgment against 1^st and 2^nd applicants for a sum of $11 380-19 under HC 4159/17. Pursuant to that judgment, a writ of execution against immovable property was duly issued against the applicants. The 3^rd respondent also obtained judgment against 1^st applicant under HC 2291/15 for a sum of $21 500-00 together with interest. A writ of execution against property was issued against the 1^st applicant.

Consequently, 1^st applicant’s immovable property being Lots 127 and 128 Northlynne of 100 Acre Charlie Bulawayo Township measuring 3 742m² was duly attached by 1^st respondent on the instruction of 2^nd respondent. It is common cause that 3^rd respondent who was owed a sum of $21 500-00 by 1^st applicant lodged his writ of execution with 1^st respondent as a participating writ upon the sale of 1^st applicant’s immovable property. In due course, 1^st applicant’s property was sold to the 4^th respondent who was declared the highest bidder at a public auction conducted by 1^st respondent. The applicants then lodged an objection with 1^st respondent against the confirmation of the sale.

A hearing was duly conducted by the 1^st respondent on the objection and the objection against the confirmation of the sale was dismissed on the grounds that despite the applicants fully paying the 2^nd respondent, they still owed $21 500-00 of the participating writ to 3^rd respondent and Sheriff costs and commission. Therefore the sale to the 4^th respondent was duly confirmed by the 1^st respondent and 4^th respondent has paid in full the purchase price. Aggrieved, applicants then filed this application to set aside 1^st respondent’s decision to confirm the sale.

The parties agreed that the sole issue for determination is whether or not the confirmation of the sale by 1^st respondent was irregular. The applicants’ contention is that the confirmation of the sale was done in an irregular manner in that 1^st respondent did not follow the court rules. This is made abundantly clear in paragraphs 17 – 18 of applicants’ founding affidavit and the heads of argument. Applicants argued that the 1^st applicant’s property which was attached on the instruction of 2^nd respondent’s writ was supposed to be released from attachment immediately after payment of the debt by them to the 2^nd respondent. In their view, the 1^st respondent was supposed to restart the process of attachment in respect of 3^rd respondent’s participating writ. Failure to do that means that 1^st respondent’s confirmation of the sale to satisfy the participating writ was therefore irregular and contrary to the rules of the court.

Sales in execution where there is/or are participating writs are provided for in Order 40 rule 327 (2) of the High Court Rules 1971. The rule provides that:-

“Where more than one writ has been lodged with the Sheriff in respect of any property to be sold in execution, the Sheriff shall not cancel or consent to the cancellation of the sale in execution unless all the writs have been withdrawn or suspended in terms of subrule (1).”

In casu it is common cause that the 3^rd respondent lodged a participating writ of execution for $25 500-00 with 1^st respondent. Further, it is also common cause that at the time the objection for confirmation of the sale was heard, the applicants had not settled the debt. To date the applicants are still owing the 3^rd respondent. The 1^st respondent confirmed the sale because the 3^rd respondent never at any stage withdrew or suspend the participating writ. At law, 1^st respondent was compelled to confirm the sale in that the wording of rule 327 (2) is peremptory and leaves 1^st respondent with no discretion to exercise. I find therefore that 1^st respondent’s decision to confirm the sale is lawful, regular and in terms of the rules of the court.

In Hardwork And Associated Rehabilitation Industries (Pvt) Ltd & Ano v Zimbabwe Banking Corporation Ltd & Ors SC 92-2007 UCHENA J (as he then was) interpreted the rule in the following words;

“Rule 327 (2) compels the Sheriff to proceed with the sale even if the original creditor instructs him to suspend the sale if more than one writ has been lodged with him. He can only stop the sale if all the writs have been withdrawn. In the present case ZIMBANK had suspended its writ but STANBIC had not, so the Sheriff was compelled to proceed with the sale in execution. The Sheriff did not therefore commit any irregularity when he proceeded with the sale in the circumstances.” (my emphasis)

A sale in execution should not be taken lightly by the courts and be interfered with on the basis of hard-luck stories – see EBRAHIM JA’s comments in Naran v Midlands Chemical Industries S-220-91 where he said;

“It would be commercially unacceptable for courts to have the power to set aside deals on the basis that, in the absence of mistake or fraud or other legitimate ground, one party made a bad bargain. Midlands was the author of its failure to prevent the sale, or to procure or arrange for their backer to attend affectively the properly advertised sale to bid for the property. The inchoate sale to the appellant Naran (yet to be perfected by delivery) should and cannot be lightly impugned. See Sookdeyi & Ors v Sahadeo & Ors 1952 (4) SA 568 @ 571 H...”

Further, the principle that a judicial sale which has been confirmed will not readily be set aside was reaffirmed in the case of Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S) at 260 D-E, where GUBBAY CJ said:-

“Before a sale is confirmed in terms of Rule 360, it is a conditional sale and any interested party may apply to court for it to be set aside. At that stage, even though the court has a discretion to set aside the sale in certain circumstances, it will not readily do so. See Lalla v Bhura supra at 283 A-D. Once confirmed by the Sheriff in compliance with rule 360, the sale of the property is no longer conditional. That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of rule 359 for it to do so ...”

Applicants’ contention that they were not served with the notice of attachment and therefore were in the dark as regards the participating writ cannot be genuine in that the participating writ for the 3^rd respondent was the basis for the dismissal of applicants’ objection. This is clear from the reading of the ruling by the 1^st respondent attached as Annexures G1-G2. The applicants’ contention that rule 331 was not complied with has no merit.

I take the view that there are no legal grounds for setting aside the confirmation of the sale. The confirmation is regular and in terms of the rules of this court. The applicants are the authors of their problems in that they failed to settle their financial obligations timeously.

Disposition

The application is dismissed with costs.

V.J Mpofu & Associates, applicants’ legal practitioners

Messrs Wintertons c/o Mashayamombe & Co. Attorneys, 2^nd & 3^rd respondents’ legal practitioners

R. Ndlovu and Company, 4^th respondent’s legal practitioners