Stanley Mpofu and Cecilia Mpofu v Sampson Samuel Mlaudzi and The Sheriff of Zimbabwe N.O. and Obey Magwekwe

### Preamble
1
HB 220/20
HC 1912/19
---------


STANLEY MPOFU

And

CECILIA MPOFU

Versus

SAMPSON SAMUEL MLAUDZI

And

THE SHERIFF OF ZIMBABWE N.O.

And

OBEY MAGWEKWE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 22 JUNE & 22 OCTOBER 2020

Opposed Application

1st Applicant in person

N. Mangena for the 3rd respondent

MOYO J:	This is an application to set aside a sale in execution conducted by the Sheriff in terms of Order 40 Rule 359 (8).

Before I proceed to deal with the substance of the application I have to deal with the entire background and the application for my recusal by applicant.

I initially set this matter down on 11 June 2020 at 10:00 hours.  It is crucial to mention that parties were given a long set down date of about 3 weeks in total. To be precise, this application was served on the applicants’ legal practitioners on 18 May 2020, advising them that the matter was set down for 11 June.  A proper mathematical calculation will show that the applicants’ lawyers were given almost 3 week’s notice of set down.  It is also crucial to mention that the request for set down was made by the 3rd respondent, the purchaser of the property being the subject matter of this dispute.  The 3rd respondent filed their heads of argument on 7 October 2019.  Up to the time of service of the notice of set down on the applicants’ lawyers no heads of argument were filed by the applicant and yet it is the applicant who brought the matter to court.

Even after being served with a notice of set down on the 18th of May 2020, and being aware that the matter had been set for 11 June 2020, applicants’ lawyers still sat back and did nothing.  It was only on the 10th of June 2020, a day before the hearing of the matter on 11 June 2020, that applicants’ lawyers decided to renounce agency.  A move that was very unprofessional given the background of the case that they being applicant’s lawyers should have filed their heads of argument first but they did not, until 3rd respondent had to file his heads.  Despite receiving 3rd respondent’s heads, they still sat back for 8 months (that is from October 2019 to May 2020 when they received the set down date).

On the date of hearing, that is 11 June 2020, applicant came to court on his own having been ditched by his lawyers at the last minute.  He made an application for a postponement as he professed ignorance as to why his lawyers acted thus.  I even enquired from him if he had paid their fees and he said he had paid.  Mr Mangena for the 3rd respondent (he had set the matter down after applicant had neglected to do so), strenuously opposed the application for a postponement and argued that applicant and his lawyers were now out of time for failure to file their heads of argument within 10 working days after being served with 3rd respondent’s heads.

I then explained to applicant that his lawyers’ conduct was unprofessional that their failure to file heads of argument on time and bunking court by ditching him at the last minute was deplorable conduct that this court does not tolerate.  I then explained to him that he is barred and that his lawyer’s actions unfortunately in a court are taken to be his as they are his agents.  I then explained to him that perhaps he should find new counsel or go and try to liaise with his erstwhile legal practitioners as the matter certainly had to proceed.  I then granted him an indulgence to go and put his house in order by postponing the matter to 22 June at 10:00 hours.

I, however, had to put him on terms so that he does not continue with the dilatory tactics.  I then explained to him that on 22 June the matter had to proceed as we cannot keep on postponing matters due to lack of diligence from lawyers and litigants.  I explained that the other parties to the litigation are also entitled to have the matter finalised whichever way, so that they are not kept in suspense over an undecided but long pending dispute.  I then told applicant that on the 22nd of June the matter should proceed without fail and that if by then he has not sorted out the mess surrounding his legal representation the matter will proceed even without his lawyers.

On the 17th of June 2020, the litigant then wrote to the Registrar asking for my recusal.  He then stated that he was uncomfortable with me dealing with his matter because of “historical reason”.  He then alleged albeit wrongly, that his matters with Samp Mlaudzi had always been dealt with by myself. He then also alleged that my verbal utterances are a cause for concern and source of discomfort.  He then made an allegation that I said he complicated his case by having his lawyers renounce agency.  This allegation was not factual, as clearly he did not instruct his lawyers to renounce agency and he was equally surprised why they had done so.  There would be no basis for me to say he complicated his case yet he did not instruct them to renounce agency.  The complication that I mentioned and rightly so, was the tardiness of his legal practitioners who failed to file heads of argument on time and then abandoned him at the last minute.  That is factual and my mentioning of a fact would not render me biased or not objective.  He further alleged that I had descended into the arena.  I do not know how this can be so, as I cannot descend into the arena of a matter that has not been heard.  At that stage the matter had not been heard so how was it possible for me to descend into the arena?  I simply pointed out his lawyers’ lack of diligence and unprofessional conduct and I was within my rights to mention it because it had put him in a precarious position and had to be mentioned.  He further alleged that I told him that if by the 22nd of June he had not put his house in order, the matter would proceed with him self acting.  That is indeed the norm if a litigant has issues with lawyers representing him not filing the requisite papers and ditching him at the last minute.  I cannot grant a postponement and say to him you can take forever to set out your issues and come back here whenever you feel like.  I cannot do that, I must put him on terms so that the wheels of justice are not unnecessarily ground to a halt by the tardiness of lawyers and their clients.  This is a court of law, which has rules that must be followed and at the core of the justice delivery system is to ensure that justice is delivered within a reasonable time, we cannot have a justice delivery system whose clock ticks according to the wishes and wants of the litigants.  Reasonable indulgences will be given in deserving situations but definitely with terms to be followed in ensuring the parties act within a reasonable time to fix issues or problems relating to their cases.  I responded to the letter he had written and addressed him to make a formal application at the next court sitting.  He did, and I dismissed the application for the reasons I have already stated herein that his application was misplaced in that it was premised on wrong facts, and it did not present acceptable reasons for my recusal.  I could not have granted him an indulgence by postponing the matter to 22 June 2020 to allow him time to put his house in order if at all I had an interest in the matter against him.  He thus failed to sustain the application and in fact the application had no substance at all.  It cannot be bias to comment on his lawyers’ conduct which conduct was even detrimental to himself as a client.  The tardiness of the lawyers is clear from the court record and mentioning is cannot be said to create lack of objectivity on a judicial officer’s part.  In fact applicant should have taken the time given by the court to either find new lawyers or mend his relations with the old lawyers so that on the 22nd of June, they would have filed his heads of argument and then seek to have the bar removed and argue his case.  The matter was that simple.  However, instead of using the time to sort out his issues relating to the matter, applicant sought to remove the judicial officer with no basis whatsoever.  A baseless attack on a judicial officer cannot be allowed to stand.  Refer to the case of S v Nhire HH-619-15 wherein it was held that;

“On the one hand it is vital to the integrity of our courts and the independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a bench be discouraged.  On the other hand, the courts’ very vulnerability serves to underscore the pre-eminent value to be placed on public compliance in impartial adjudication.  In striking the correct balance, it is as wrong to yield to a tenuous and frivolous objection as it is to ignore an objection of substance.”

Clearly, where there is a baseless accusation where recusal is being sought, it would be wrong to yield to it.  The application for my recusal was thus dismissed and applicant was allowed to self act and prosecute his application.

The facts of the matter are that applicant’s property was attached and sold in execution at a public auction for a sum of ZW$300 000.  The property was purchased by the 3rd respondent.  The applicant then objected to the confirmation of the sale by the Sheriff.  The applicant has attached a valuation report which puts the forced sale value at ZW$680 00,00.  Applicant further avers that the ZW$300 000,00 which 3rd respondent paid at the auction cannot even buy a 4 roomed house in Magwegwe.  Applicant further avers that the USD value of $150 000,00 being the forced sale value translated to ZWL$1 350 000,00 at the rate of 1 to 9 ZWL.  It is not clear whether this value was applicable at the material time since the valuation report used a rate of 4.54 ZWL to 1 USD as at 22 May 2019.  If this is not supported that the applicable rate at the time was 1USD to 9ZWL.

The applicant further avers that the property description was not adequate and that there was no factual basis to say the judgment debtor denied the Sheriff access to the property.  Applicant argues that without a full description the bidders were not properly informed.  Applicant however, does not proceed to give the property description as given by the Sheriff and the comparison to the actual situation on the ground in order for court to be informed if at all the bidders were not properly informed.  Applicant further avers that he was prepared to pay the debt.  However, this court motes that from the time the founding affidavit was commissioned, applicant did not settle the amount due opting instead to make staggered payments with most of them made in June 2020 after this application had been set down.  Applicant further avers that his wife, as an interested party and a co-owner also objected to the sale of the property which she regards as her permanent home.

3rd respondent opposed the application on the basis that the debt giving rise to attachment of applicant’s property arose in 2013.  That the applicant objected to the sale using an evaluation report as at 22 May 2019 and that the 2nd applicant is not a co-owner and could not object to the sale in execution.  3rd respondent also contends that the valuation report was not sworn to.   3rd respondent also avers that there has been no link to the values as at 22 May 2019 and the date of the sale in execution.  3rd respondent also avers that applicant cannot be allowed to benefit from his conduct of frustrating the sale in execution.  Looking at the Sheriff’s findings in relation to the objection.  The Sheriff states that the applicant denied access to the property and hence an elaborate valuation to the standard of the one attached in the objection could not be obtained.  The Sheriff further states that it is the norm for judgment debtors to frustrate the sale in execution by not allowing access to the valuers and the prospective buyers.

However, what is not clear from the applicant’s founding affidavit is the description of the property as given by the Sheriff and a comparison with the description of the property as given by the valuer, for this is important to enable the court to assess whether the description by the Sheriff to the prospective buyers would render the sale ineffective.  In paragraph 6.4 of the founding affidavit the applicant avers the following:

“It is factual that the property description was not adequate”

Applicant however, does not go on to state what is it that the Sheriff’s advert put as the description.  This court would thus be unable to make a finding on the proper description of the property or otherwise yet it is not told what the Sheriff’s advert contained or left out and the impact of these on the value of the property.  The Sheriff also raises a critical point of a judgment debtor who does not co-operate with its office in the conduct of a sale in execution but locks the premises so that the sale is frustrated.  The Sheriff finds that the judgment debtor cannot be allowed to conduct himself in such a manner in a bid to frustrate the sale only to benefit from the frustration he has made.

The Sheriff also found that the price was not unreasonably low, quoting a number of decided cases wherein the views of the court were that the price sought and fetched at an auction cannot be said to be unnecessarily low since it is the price that has been offered at a public auction meaning hat that is the price that the public offers for such a property.  Such was the finding of the court in the case of Morfopoulos vs ZIMBANK 1996 (1) ZLR 626 wherein the Supreme Court had this to say:

“All too frequently, however, the debtor finds himself in an invidious position relating to the loss of his home precisely because of his own failure to address the problem efficiently at an early stage.,  Where his own tardiness or evasion has contributed to his problems, a debtor cannot hope to persuade the court that equitable relief is due.”

The court went on to state as follows:

“Finally, I wish to say that generally speaking, courts should not readily interfere in sales in execution.”

The court went further to say

“The price achieved is therefore itself taken as a reliable indication of value.  For these reasons there is recognized an onus upon the challenger to prove that the price so achieved is unreasonably low.  A litigant wishing to discharge this burden must be fully prepared with properly supported valuations of the property under consideration.”

The sale was allegedly conducted on 3 May 2019 and the valuation report filed by the applicant was done on 22 May 2019, almost 3 weeks from the date of the sale.  The valuation puts the price in United States dollars and then converts to the local currency.  The valuation report says it used the rate of 4.54 which was the interbank rate on 22 May 2019 to convert to the RTGs values, that is to get the forced sale value in RTGS.  The Sheriff dismissed the valuation report and one of the reasons was that it was not commissioned.  I do not know if the valuation report before the Sheriff was not commissioned but the one before me is commissioned on 23rd May 2019.  The problem with the valuation report in my view is that the Sheriff’s sale was conducted in RTGS currency on 3 May 2019.  The valuation was made in United States dollars on 22 May 2019, almost 3 weeks later.  The RTGS – USD values on the interbank rate used by the valuer are for the 22nd of May 2019.  In my view, the valuation report was going to be useful and reflect a true value of the property if it was made either close to the date of the sale, which was the 3rd of May 2019, or if having been made 3 weeks later, in USD values, it was converted to RTGS values as of the 3rd of May 2020.  The RTGS – USD rate on the 3rd of May 2020 is the one that the valuer should have used to come up with the value of the property, for it is the value of the property on the date of the sale, that is, the amount offered at the time the sale was conducted that applicant seeks to challenge,  It is therefore my considered view that in light of the case I have already cited which states that the offer made at the auction is ordinarily taken as the true value, and that if an applicant seeks to challenge that, they should provide properly supported valuations of the property, the applicant in this case needed to provide clear valuation of the property in a bid to make a case for the unreasonably low price.  This court cannot make a finding that a valuation report, prepared 3 weeks post the sale, with USD values converted at the interbank rate applicable 3 weeks later, was sold at an unreasonably low price, because the RTGS values of the property at the interbank rate applicable on 3 May 2019 being the date of the sale were not used.  This ground accordingly fails and it is my finding that the valuation report does not help the court in making a solid finding that indeed the RTGS value of $300 000,00 is unreasonably low as the RTGS value of the property on the same date given by the valuation has a wide gap.  As it is, the RTGS value of the property after conversion from the USD value as at 3 May 2019 remains unknown it would also appear from the Sheriff’s findings and the contention by the 3rd respondent that the valuation report placed before the Sheriff was not sworn to since the Sheriff made this as a finding in her ruling on the objection, however, applicant does not challenge that aspect in his application.  He does not allege that the Sheriff found that the valuation report was not sworn to when in fact it was.  It means that what was before the Sheriff was an unsworn valuation, which applicant then rectified and placed before this court.  For if that was not so, applicant would have raised it in his application that the Sheriff dismissed his valuation as being unsworn to yet it was.  Applicant’s silence in the founding affidavit on this crucial point means that he is not challenging the Sheriff’s finding and that consequently indeed the Sheriff dealt with an unsworn to valuation.  This is crucial because it then goes to the very substance of this application, that is, whether a proper valuation report was placed before the Sheriff in a bid to challenge the sale in execution.

This court, where it is faced with an application in terms of Rule 359, in essence exercises its review powers over the Sheriff’s decision, it follows therefore that what this court should consider is the Sheriff’s decision in light of what was placed before her.  In this case what was placed before the Sheriff was an unsworn to valuation, which has no credence.  This court assesses the Sheriff’s decision in light of what was placed before the Sheriff for consideration.  If the report was unsworn to at the stage it was placed before the Sheriff, placing a sworn valuation before the court at a later stage would not be useful as the court assesses the Sheriff’s decision and the submissions made before the Sheriff.  In the case of Puwayi Chiutsi vs The Sheriff of High Court & 3 Others HH-604-18 the court quoted with approval the decision in Nyadinhu & Anor vs Barclays Bank of Zimbabwe 2016 (1) ZLR 348 wherein it was stated thus:

“The procedure envisaged in Rule 359 is that of a review of the decision of the Sheriff by this court.  The court is required to look at the objections raised and test the decision of the Sheriff  …   The High Court sitting as a review court, cannot enquire into matters that were not initially raised as objections and deliberated on by the Sheriff.”

It is my considered view, that by the same token, this court cannot in exercising its review powers over the Sheriff’s decision, ignore that before the Sheriff was an unsworn to valuation, despite that a sworn one has now been placed before the court, for this court cannot exercise its review powers over the Sheriff’s decision, by allowing into the court record, information that had not been placed before the Sheriff which is now placed before the court in a bid to set aside the Sheriff’s decision.  The Sheriff’s decision stands or falls by the papers that were filed before the Sheriff.  If the papers filed before the Sheriff were irregular and warranting a dismissal, this court cannot in reviewing the Sheriff’s decision allude to papers that were then regularized post the Sheriff’s decision for to do so would not be exercising review powers.

In the case of Zimunhu vs Gwati & Others SC-43-02 the Supreme Court in dismissing an appeal against the decision of the High Court wherein the High Court had dismissed an application to set aside a sale in execution held among other things that the valuation report could not be accepted as it was not made under oath.  The other reasons given for this application that is, that 2nd applicant is a co-owner and that applicant made arrangements to pay as well as that the Sheriff should have proceeded by way of  a private treaty are all hollow grounds in that firstly, the Sheriff correctly found that from the Title Deed, 2nd applicant was not a co-owner.  Again, there is no procedure to compel the Sheriff to always proceed by private treaty.  In fact applicant does not say he indeed had an alternative buyer prior to the sale in execution.  In fact this ground was not part of the objection to the Sheriff and should not be part of this application.  On the ground in relation to applicant offering to pay the judgment creditor’s dues, clearly that was no part of the application to the Sheriff as well and shall not be a ground in this application as well.  In any event, applicant never paid the debt which remained owing right up to May 2020 when this matter was set down, even after the initial set down of 11 June 2020 prompting applicant to try and engage the judgment creditor in a bid to settle.  This information was tendered by the applicant himself, showing payments up to June 2020.

It is my considered view that in the Morfopoulos case (supra) the court clearly stated that courts should not readily interfere with sales in execution, in fact that is the general rule.

Accordingly, I hold the view that applicants has failed to make a case for the relief he seeks for the reasons I have already alluded to herein.  Sales in execution are not to be set aside as a matter of course as doing so erodes the public’s confidence in such sales.  A strong and valid case has to be made for the courts to interfere in such sales and set them aside.  I have not found any substance in this application that warrants this court to interfere and set aside the sale in execution herein.  I thus find that the applicants have failed to make a case for the relief that they seek.

I accordingly make the following order:

The application is dismissed with costs.

Coghlan & Welsh 3rd respondent’s legal practitioners