Manifesto Trading (Pvt) LTD T/a Smart PAK AND Rabbit Investments (Pvt) LTD AND Henry Shonai Toodzaniso AND Zanele Ndlovu Versus THE Sheriff OF Zimbabwe AND OWEN TOMA AND Standard Charted BANK Zimbabwe Limited

### Preamble
1
HB 150/20
HC 439/20
---------


MANIFESTO TRADING (PVT) LTD T/A SMART PAK

and

RABBIT INVESTMENTS (PVT) LTD

and

HENRY SHONAI TOODZANISO

and

ZANELE NDLOVU

Versus

THE SHERIFF OF ZIMBABWE

and

OWEN TOMA

and

STANDARD CHARTED BANK ZIMBABWE LIMITED

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 8 AND 16 JULY 2020

Opposed application

Adv S Siziba with Mr Z C Ncube for the applicant

Ms P Vangiranai for the respondent

MAKONESE J: This is an application to set aside the decision by the Sheriff of the High Court confirming a sale in execution. The application is in terms of Rule 359(8) of the High Court Rules, 1971. The application is opposed by the 3rd respondent who argues that there is no basis for setting aside the sale in execution as the decision by the 1st respondent was reached flawlessly and that as such, the decision could not be faulted.

Factual Background

The 4th and 3rd applicants are wife and husband; they are co-Directors of the 1st applicant as well as trustees in the 2nd applicant which is wholly owned by the 1st applicant. The 3rd respondent obtained a default judgment against the applicants on the 18th of June 2015. The order was in the following terms:

Payment of the sum of US$ 18 543.15 together with interest thereon at the rate of 28 per annum from the 2st March 2015 to the date of full payment.

An order that Stand 11075 Bulawayo Township of Bulawayo Township Lands measuring 1603 square metres in extent held by the 2nd defendant under Deed of Transfer No. 2440/2005 dated 31st August 2005, shall be executable; and

An order that the defendant shall pay legal practitioner’s collection commission calculated in terms of the Law Society of Zimbabwe by-laws, 1982 and together with the costs of suit on the legal practitioner and client scale.

The applicants filed an objection to the confirmation of the sale of the property in terms of rule 359 (1) of the Rules on the grounds that the debt had since been satisfied in full and further that the property had been sold at an unreasonably low price. It appears it became necessary for the date of the hearing of the matter to be postponed to a future date. The applicant’s legal practitioners, the 1st respondent and the 3rd respondent’s legal practitioner were aware of this fact and not opposed to such postponement. On the 18th of December 2020 the Sheriff proceeded to conduct the hearing to which only the 3rd respondent’s legal practitioner Ms P Vangiranai availed herself for the hearing.There was no appearance for the applicants. At the hearing, it appears the 1st respondent acceded to the 3rd respondent’s legal practitioner’s request that in the absence of the applicants, the 1strespondent determined the matter on the basis of the available documents. The 1st respondent noted that the applicants were not in attendance and in spite of that, 1st respondent proceeded with the hearing. A ruling confirming the sale of the property to the 2nd respondent in the sum of ZWL 350 000.00 was granted by the 1st respondent.

It would appear that the ruling came to the applicant’s attention through a letter to the applicant’s legal practitioners dated 22 January 2020. The applicant’s legal practitioners wrote to the 1st respondent on 17 February 2020 expressing alarm and surprise at the 1st respondent’s ruling confirming the sale. They indicated that as far as they were concerned the matter was postponed sine die, that they were not aware of the date of set down. 1st respondent replied through a letter stating that the matter heard been postponed to the 18th of December 2019 at the instance of the applicants as per the applicants letter to the 1st and 3rd respondent dated 11 December 2019.  Applicant took the view that the letter sent to the 1st respondent was a mere proposal of the 18th of December 2019 as a suitable date for a hearing, a proposal open to the 1st respondent’s confirmation. Aggrieved by the 1strespondent’s ruling as well as the 1st respondent’s insistence that applicant only had themselves to blame, the applicant noted the present application.

It is the applicant’s view that the 1st respondent failed to notify them of the date of hearing thereby committing a procedural irregularity. Applicants contend that this irregularity cannot be ignored in the face of the findings of the 1st respondent which were adverse to the applicants’ case. The 3rd respondent is of the view that the applicants were aware of the date of hearing but chose not to attend. The 3rd respondent submits that in any event there is no prejudice occasioned to the applicants as they had tendered written objection/submissions which 1st respondent took into account in reaching its ruling. Further the applicants allege that the property was sold for an unreasonably low price. The respondents take the view that the price was reasonable.

The present application it is premised on the following grounds:

The first Respondent convened and conducted a hearing in terms of rule 359(7) of the High Court Rules, 1971 on the 18thof December 2019 and confirmed the sale in execution without notifying the Applicants’ to attend same as mandated by the rules and principles of natural justice and hence his decision must be set aside.

The first Respondent misdirected himself and also failed to appreciate the weight of the evidence placed before him in coming to the conclusion that the Applicants had not fully paid their debts to the 3rd Respondent.

The 1st Respondent grossly misdirected himself in confirming the sale in execution when it was clear that the purchase price of ZWL 350 000.00 for a property in the up market suburb of Ilanda, Bulawayo was unreasonably low under whatever circumstances.

Relief Sought

The applicants seek that it be ordered that:

The decision of the 1st Respondent confirming the sale of Applicants’ property to the 2nd Respondent in terms of his ruling dated 22nd of January 2020 be and is hereby set aside.

Any of the Respondents who oppose this application shall pay the costs on a legal practitioner and client scale.

Issues for determination

1.	Whether or not the applicants were notified of the date of hearing?

2.	Whether or not the debt was paid in full and therefore no need to sale the house in execution?

3.	Whether or not the house was sold at a reasonable price?

The Law and Application of the Law to the Facts

Whether or not the applicants were notified of the date of hearing?

In seeking to address the 1st issue, it is pertinent to note that the notification of the date of hearing is in reference to notification in terms of the High Court Rules 1971. The relevant provision is rule Rule 359 of the rules which reads:

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

(a) confirm  the  sale; or

(b) cancel the sale and make such order as he considers appropriate in the circumstances,and shall without delay notify the parties in writing of his decision.”

It is the application of the above provisions that is the first bone of contention between the parties. The applicant argues that there was no service to speak of as what remained between the parties on the 11th of December when they deferred the matter to a future date was a mere proposal of a possible suitable date of the 18th of December 2020. The 3rd respondent argued that the applicant had in fact through the letter set out the 18th of December 2020 as the date of hearing, and that therefore applicants were aware of the date of hearing and there was no need for further notice to applicants. The 1strespondet elects to be mum at this juncture as 1st respondent has not filed any heads to spell out its position.  Though tight-lipped at this juncture, the 1st respondent’s position on the issue can be gleaned from its ruling confirming the sale where 1st respondent stated that:

“Mr Ncube, counsel for the objectors did not appear despite being served with a notice to do so.”

That is the 1st respondent’s stated position which despite its silence referred to, 1st respondent did not to date seek to distance itself from that stance.

In Fletcher v Three Edmunds (Pvt) Ltd; Vishram v Four Edmunds (Pvt) Ltd1998 (1) ZLR 257 (SC) at p259 H to 260 A, the court defined wilful default as follows:

“whether with  full knowledge of the service of the summons and of the risks attendant upon default, a decision to refrain from appearing was freely made.”

The court in NICOZ Diamond Insurance Co. Ltd v Tigere & Others HC 10176/13  relied on the definition of wilful default  laid out in Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 (SC) at p 402 D to G where the court had the following to say:

“Wilful default occurs when a party, with the full knowledge of the service or set down of the matter, and of the risks attendant upon default, freely takes a decision to refrain from appearing: Neuman (Pvt) Ltd v Marks 1960 R & N 166 (SR) at 169; 1960 (2) SA 170 (SR) at 173; Simbi v Simbi S-164-90 at p 6; Mdokwani v Shoniwa 1992 (1) ZLR 269 (S) at 271.”

In Metal Sales v Mbanda HH 812/16 the court relied on Deweras Farm (Pvt) Ltd &Ors v Zimbabwe Banking Coorp Ltd, (1998) (1) ZLR 368, 369 where McNALLY JA quoted, with approval, King J’S dicta in Manjean t/a Audio video Aqencies v Standard Bank of South Africa Ltd 1994 (s) SA 801, 803 H -I where the phrase wilful default was explained as follows:

“More specifically, in the context of a default judgment, ‘wilful connotes deliberateness in the sense of knowledge of the action and its consequences, i.e. its legal consequences and a conscious   and freely taken decision…”

The contentious notice in casu is a letter by the applicant’s legal practitioner to the 1st respondent and to the 3rd respondent’s legal practitioners. It reads:

“We confirm that it was agreed that the matter be postponed to sometime next week. The 18th at 10.00hrs appears suitable.”

What is readily apparent from the letter is that the matter was not postponed sine die, in other words indefinitely. The allegation by the applicants that they were of the view that the matter was postponed sine die cannot be inferred from the contents of the letter. However, it is also apparent that the latter proposes a date but does not definitely state that the 18th is the date on which the parties agreed to have the hearing. The phrase “appears suitable” cannot by any stretch of imagination be taken beyond the meaning of proposal. In fact, it plainly means that. The buck does not stop there in the present issue. It boggles the mind as to why after agreeing that the hearing would be held the following week in order to beat the festive break, why neither legal practitioner never  engaged the other for clarity with regards the date and confirm the proposed date as the agreed date of hearing. The applicant’s having suggested a date to the 1st respondent would not have been laboured by a follow up letter to the 1st respondent or on the passing of the 18th of December 2020 engaged the 1st respondent or the 3rd respondent in that regard. To simply conclude that the matter in the circumstances was postponed sine die does not demonstrate diligence on their part. Equally so, the 3rd respondent would not have been laboured by an enquiry as to the status of the matter seeing as she was copied a letter that clearly proposed a date. To insist that the letter in fact set the matter down clearly cannot be inferred from the contents of the letter. The diction is simple and clear for all to see.

The 1st respondent cannot seek to suggest that the letter in fact set the matter down and expect to be taken seriously by this court. As already stated, from a plain reading of the letter, the letter courteously sought the 1st respondent’s convenience and it is my view that perhaps this court would not be presently seized with this matter had the courtesy been reciprocated. What casts further doubt to the 1st respondent’s argument is the 1st respondent’s finding in his ruling that applicant’s counsel did not appear despite being served with notice to do so. The averment simply cannot be reconciled with what happened. It is not true.

It cannot be doubted that the applicants intended to see through their objection to the confirmation of sale. Applicants filed their objection served the same upon respondents and attended to the setting down of the matter. This, points to the fact that applicants intended the natural consequences of their actions. This is supported by the parties apparent efforts to have the matter set down before the festive holidays, sadly the follow up did not reflect the same zeal for all parties concerned.

In that light, this court is of the view that the 1st respondent committed an irregularity in failing to notify the parties of the date of hearing, particularly the failure to notify the applicant.

Prejudice

The 3rd respondent took the view that there is no prejudice occasioned to the applicants as applicants had lodged written objections and submissions which were considered and found to be devoid of merit. The applicants were of the view that the adverse ruling by the 1st respondent occasioned such prejudice as it was made in irregular proceedings.In terms of Rule 359(7) on receipt of a request in terms of subrule (1) any opposing or replying papers filed in terms of this rule, the sheriff shall advise the parties when he will hear them and, after giving them or their legal representatives, if any, an opportunity to make their submissions …”

The rule places a peremptory responsibility on the Sheriff to invite and hear objections. In Chimukokoko v High Court Sheriff & Others HH 230-17 the court stated that:

“Rule 359 lays out procedures to be followed where a sale is challenged. The rule places a responsibility on the Sheriff to invite objections and hear them. When the Sheriff sits and hears objections, he has wide discretionary powers. The Sheriff‘s discretion should be exercised reasonably and not haphazardly or arbitrarily. It is the duty of the Sheriff in a judicial sale to protect the interests of all parties concerned. When the Sheriff hears objections he is required to ensure that he considers the views of all the parties. The decisions made must also be fair and have a good basis.  A Sheriff, to whom objections to a sale have been brought, is obliged to consider all the objections and give a ruling on each particular objection on the merits, giving reasons why he allowed or discounted the objection.”(my underlining)

In light of the above, it cannot be said that 1st respondent executed the quasi-judicial functions of the 1st respondent’s office in terms of the rules and principles of natural justice. The manner in which the matter was handled cannot be said to be in accordance with the interest of both parties, it cannot be said that it was reasonable and fair. Clearly the 1st respondent did not comprehensively deal with the objection. For completeness and to clarify the written submissions the parties should have been called to a hearing as mandated by the rules. To simply state that one relied on the submissions filed is incompetent.

Further, the 1st and 3rdrespondents were at all times aware that the applicants had on prior occasions successfully objected to sales by the 1st respondent. This should have incentivised them to ensure the hearing was conducted in the most surgical manner. This was not done. This 1st respondent’s conduct was irregular.

On the strength of the court’s findings on the 1st issue, an enquiry into the 2nd and 3rd issue becomes unnecessary at this stage. The 1st and 2nd issues were placed before the 1st respondent through the objection for determination. It is on these issues that the 1st respondent should have in terms of the rules made ruling. I find that the 1st respondent can still do so and allow for a proper ventilation of the issues.

The Sheriff’s conduct in failing to notify the applicants of the date of hearing is irregular and misdirection. The ruling does not conform to the law and cannot be allowed to stand.

The application succeeds.

In the result it is ordered as follows:

The decision of the 1st respondent confirming the sale of the Applicants’ property to the 2nd respondent in terms of the ruling dated 22nd January 2020 be and is hereby set aside.

The 1st respondent is directed to conduct a fresh hearing.

There shall be no order as to costs.

Ncube and Partners, applicant’s legal practitioners

Danziger and Partners, respondent’s legal practitioners