Judgment No SC. 119/04
Appeal No. 345/03
BUDGET CAR AND BUS RENTAL (PRIVATE)
LIMITED (2) ATHERSTONE AND COOK
T.A. MANDEYA T/A MANDEYA
THE DEPUTY SHERIFF
COURT OF ZIMBABWE
JA, MALABA JA & GWAUNZA JA
OCTOBER 18, 2004
appellant in person
J Wood, for the first and second respondents
Debwe, for the third respondent
appearance for the fourth respondent
JA: At the conclusion of argument in this appeal, we dismissed the
appeal with costs and indicated that the reasons for
would follow. These are the reasons.
appellant was ordered by the High Court to pay certain sums of money,
including interest and costs, to the first respondent.
appellant failed to comply with the courts judgment, the first
respondent, through Messrs Atherstone & Cook, who
are its legal
practitioners, caused a motor vehicle belonging to the appellant to
be attached in execution of the judgment. The
motor vehicle was
subsequently sold by public auction on 5 April 2003.
period between the attachment and sale of the motor vehicle, the
appellant made frantic efforts to settle the judgment debt
in order to save his motor vehicle. He paid to Messrs Atherstone &
Cook the full amount of the judgment debt (minus
the interest and
costs) on 24 February 2003.
In respect of the interest and costs, the appellant made two
payments on 8 May 2003. On that date Messrs Atherstone &
Cook addressed a letter to the Deputy Sheriff, advising him of the
satisfaction of the judgment debt by the appellant and requesting,
therefore, that the motor vehicle in question be released. As
already indicated, the motor vehicle had already been sold by public
auction on 5 April 2003. It was therefore no longer available
for release to the appellant.
argument before us, the appellant acknowledged that by the time he
paid off the judgment debt the motor vehicle had already been
by an innocent third party, that is, the third respondent. He also
admitted that, pursuant to the sale, he had received
from the Deputy
Sheriff the balance of the purchase price, after deduction of what
was owed to the first respondent and all the costs
attendant on a
The appellant, therefore, in effect conceded the correctness of the
judgment of the court a quo in which the learned judge
(The) application was dismissed with costs. The fourth
respondent was instructed to sell the vehicle in order to obtain the
judgment debt. The vehicle was sold on 5 April, in accordance
with the law. The fourth respondent was only advised on 8 May
to stay execution. That was too late. It is not possible to set
aside the sale as it was conducted in accordance with the law.
I find no
fault with this reasoning.
appellant does not allege that the Deputy Sheriffs sale was
improperly conducted. He accordingly does not dispute the validity
of such sale. That he went on to accept the balance of the purchase
price of such motor vehicle from the Deputy Sheriff is further
testimony of his acceptance of the sale.
appellant submitted before us that his real grievance was with the
second respondent, the first respondents legal practitioners.
claimed that Mr Sellers (Sellers), of the second
respondent, had misled him by suggesting he could just pay the actual
amount owed to the first respondent while he (Sellers) worked out the
exact amounts owing in respect of interest and costs. This,
said, had caused the delay in his payment of these amounts, with the
result that the motor vehicle was, in the interim, auctioned
While the second respondent disputes these assertions, the
determination of this dispute is clearly not relevant to this appeal.
As long as the appellant acknowledges, as he has done by both word
and deed, the validity of the auction sale of his motor vehicle,
there is no basis in law for the relief that he is seeking. This is
the setting aside of the sale and the restoration of the motor
vehicle to him.
If it is
the appellants case that the second respondent caused him
financial prejudice through the actions of Sellers, then it
second respondent, and not the other respondents cited, that he might
wish to sue.
result, we were satisfied there was no merit in the appeal and
dismissed it with costs.
JA: I agree.
JA: I agree.
& Cook, first and second respondents' legal practitioners
Partners, third respondent's legal practitioners