Abiather Mujeyi v Afrasia Bank Zimbabwe & 3 Ors

### Preamble
1
HH 596-18
HC 2474/17
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ABIATHER MUJEYI

versus

AFRASIA BANK ZIMBABWE

and

COLBRO TRANSPORT PRIVATE LIMITED

and

THE SHERIFF OF ZIMBABWE

and

REALGATE PROPERTIES

HIGH COURT OF ZIMBABWE

MAKONI  J

HARARE, 22 February and 3 October 2018

Opposed Application

Mr J Dondo, for the applicant

Mr D Tivadar, for the respondents

MAKONI J  The applicant approached this court seeking an order for the setting aside of a sale in execution in terms of Order 40 r 359.

The background to the matter is that the first respondent obtained a court order against the one Robert Brian Van Rensburg (Robert) the applicant and Mabelreign Drive-in-Cinema for the recovery of the sum of US$396 782.63 jointly and severally the one paying the other to be absolved.  The first respondent then caused the attachment and sale in execution of stand 73 Chicago Township, Kwekwe (the property).  The applicant is the registered owner of that property.

The sheriff instructed the fourth respondent to sell the property.

On 20 October 2016, the fourth respondent valued the property and put the open market value of the property at US$65 000 and the forced sale value at US$39 000.

The property was advertised for sale by public auction, which was held on 4 November 2016.  No bids were received.  The third respondent then instructed the fourth respondent to sell the property by private treaty.

The property was duly advertised and on 24 November 2016, the second respondent put in an offer of US$39 000.  The second respondent’s offer was the highest bid and on 7 February 2017, the third respondent declared confirmed the second respondent, as the highest bidder, to be the purchaser of the property.  On 14 August 2017 the third and second respondent entered into an agreement of sale of the property.

The applicant avers that he only became aware of the sale on 3 March 2017 when an unidentified person sent him a whatsApp copy of the sheriff’s letter confirming the sale. The basis for the applicant to approach this court is that the amount of US$39 000, realised at the sale, and later confirmed by the third respondent is grossly and unreasonably low for the property.  It would unjustly enrich the second respondent and unjustly impoverish the applicant in that he would still owe first respondent considerable sums of money notwithstanding the sale.

The application is opposed.  The second respondent took in limine, the point that the application is in breach of r 359 (1) in that the applicant failed to lodge a written notice objecting to the sale of the property. On the merits it is opposed on the basis that the applicant was given an opportunity to file any objections but did not and that taking into account that there were no bids  at the public auction and only one bid at the sale by private treaty, the amount offered by the second respondent was reasonable the current economic conditions facing Zimbabwe.

In his answering affidavit, the applicant avers that he never received the letter calling for objections in terms of r 359 (1).  The letter was copied to one of the judgment debtors Robert, who had nothing to do with the property. He further alleged that there could have been collusion between the second and fourth respondent as they use the same address. He further avers that there is a letter dated 13 March 2017 from the third respondent to the second respondent effectively cancelling the sale. He persisted that the price was unreasonably low notwithstanding the current economic conditions in Zimbabwe.

In its Heads of Argument the second respondent raised a further point in limine regarding the basis of the application. I will consider the points in limine first.

The basis of the application

Mr Tivadar submitted that the applicant in its founding affidavit

relies only on r 359 when seeking the setting aside of the sale

founds its application only on the allegation that the purchase price is too low.

It does not dispute that the sale was improperly conducted nor allege any other basis on which the sale could be set aside.

In its Answering Affidavit; the application sought to introduce additional based for the application such as alleged collision between the second and fourth respondent and the alleged cancellation of the sale.  The applicant also seek to rely on these new allegations in its Heads of Argument by alleging that the sale was carried out in unclear circumstances. Mr Tivadar further submitted that the applicant’s conduct is inappropriate and impermissible.

Mr Dondo did not directly address the procedural points raised by the second respondent viz bringing new evidence in an Answering Affidavit. He persisted in argument using the new grounds raised in the Answering Affidavit.

This issue should not detain the court. It is settled in our law that an Answering Affidavit should not contain new evidence as the respondent will not get an opportunity to give their factual account on the new issues raised.

See Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Limited 1990 (1) ZLR 67 (H) and where the court stated “it is a well established general rule of practice that new matter should not be permitted to be raised in an answering affidavit: the cause of action must be fully in the founding affidavit. This has been the settled practice of our courts at least since the matter was advocated to in Coffee, Tea and Chocolate Co Ltd v Cape Co 1930 CPD 81 and 82.”

In the result, the additional points raised by the applicant, for the first time in its Answering Affidavit, will be ignored in the determination of the matter.

Whether the application is properly before the court

The second point taken by the second respondent is that in terms of r 359 the Sheriff alone has been provided with “first instance jurisdiction” to determine whether a sale should be set aside or confirmed. The existence of a determination by the Sheriff is a pre-requisite for the court to become involved.

The applicant’s sole argument is that he was not given an opportunity to object to the sale under r 35 (1). The letter or letters that were written by the third respondent were not copied to him but to his fellow judgment debtor Robert.

I have examined the letter dated 7 February 2017 whereby the third respondent declared the second respondent the highest bidder and confirmed the sale. It is copied to the fourth respondent, second respondent and Robert. It is not copied to the applicant. None of the parties attached the letter of 29 November 2016 whereby the third respondent sought for objections from the interested parties. I do not know whether it was copied to the applicant or not. Despite the above, to fact still remains whether r 359 was available to the applicant in the circumstances of this matter

Rules 359 provides:

“(1)  Subject to this rule, any person who has an interest in a sale in terms of this Order may request the sheriff to set it aside on the ground that-

the sale was improperly conducted; or

The property was sold for an unreasonably low price;

Or on any other good ground

(2)  A request in terms of subrule (1) shall be in writing and lodged with the Sheriff within fifteen days from the date on which the highest bidder was declared to be in terms of rule 356 or the date of the sale in terms of rule 358, as the case may be:

Provided that the Sheriff may accept a request made after that fifteen-day period but before the sale is confirmed, if he is satisfied that there is good cause for the request being made late.

(3)  A request in terms of subrule (1) shall-

(a)  set out the grounds on which, according to the person making the request, the sale concerned should be set aside; and

(b)   be supported by one or more affidavits setting out any facts relied on by the person making the request; and copies of the request shall be served without delay on all other interested parties.

(4)  A person on whom a copy of a request has been served in terms of subrule (3) may, within ten days after it was served on him, lodge with the Sheriff written notice that he opposes the setting aside of the sale concerned.

(5)  A notice in terms of subrule (4) shall-

(a)  set out grounds on which the person who gives it opposes the setting aside of the sale concerned; and

(b)  be supported by one or more affidavits setting out any facts relied on by the person who gives it; and copies of the notice shall be served without delay on the person making the request and on such other persons as the Sheriff may direct.

(6)  Within ten days after a copy of a notice has been served on him in terms of subrule (5), the person making the request may lodge with the Sheriff a written reply and, if he does so, shall without delay serve a copy of his reply, together with any supporting documents, on the person opposing the request and on such other persons as the sheriff may direct.

(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.

(8)  Any person who is aggrieved by the sheriff’s decision in terms of subrule (7) may, within one month after he was notified of it, apply to the Court by way of a court application to have the decision set aside.

(9)  In an application in terms of subrule (8), the Court may confirm, vary or set aside the Sheriff’s decision or make such other order as the Court considers appropriate in the circumstances.

(10)  Where no request has been lodged with the Sheriff in terms of subrule (1) within fifteen days from date on which the highest bidder was declared to be the purchaser in terms of rule 356 or the date of the sale in terms of rule 358, as the case may be, he shall, subject to the proviso to subrule (2), confirm the sale.”

In terms of sub r 7, the Sheriff may either confirm the sale or cancel the sale or make such order as he considers appropriate in the circumstances. He shall without delay notify parties of his decision.

If any person is aggrieved by his decision, made in terms of subr 7, such person may, within one month of being notified of the decision, approach the court to have the decision set aside. In terms of subr 10, where no request has been lodged with the Sheriff in terms of subr 1, as in casu the Sheriff shall confirm the sale.

Two issues arise from the above provisions as set out in r 359. Firstly the Sheriff alone is given power to have “first instance jurisdiction” to determine whether a sale should be set aside or not. The court has an oversight role which kicks in when the Sheriff would have made a determination. The Sheriff must have made a decision and a party be aggrieved by that decision for it to approach the court. As correctly submitted by Mr Tivadar, the court has no other power to set aside a judgment under r 359 apart from that of reviewing the Sheriff’s decision.  See r 359 (8) and (9).

Secondly the Sheriff is duty bond to confirm the sale where no request is lodged with him in terms of r 359. The rule is couched in peremptory terms.

In casu, it is common cause that the applicant did not request the Sheriff to set aside the sale. In my view it matters not that the applicant was not requested to file any objections. There is no decision made by the Sheriff in terms of r 359 (7). The applicant cannot be aggrieved when no decision was made. He cannot therefore not approach the court under r 359 (8) as the requisite of such an application has not been satisfied. As no request was made in terms of its r 1 the Sheriff had no option but to confirm the sale in terms of subr 10.

From the above analysis, it is clear that the remedy provided for under r 359 cannot be available to the applicant. The applicant must be aware of this position. In the Court Application, he just states that he is proceeding in terms of r 359. In his founding and answering affidavits, he is silent as to under which subsection he was proceeding under. He, in his Heads of Argument intimates that he is proceeding under subr 8. But, as has been demonstrated above, the prerequisite for a party to approach the court in terms of subr 8 has not been satisfied.  Put simply, there is no decision made by the Sheriff in terms of r 7.

The applicant sought to argue that  the strict application of r 359 would be inequitable. As was correctly submitted by Mr Tivadar, the applicant has not established the factual background giving rise to the argument of inequity.

In view of the above I will uphold the point in limine and find that the application is not properly before me and should be dismissed. It will therefore be not necessary for me to consider the merits of the matter.

In the result I will make the following order.

The application is dismissed.

The applicant to pay the 2nd respondent’s costs.

Dondo and partners, applicant’s legal practitioners

Sawyer and Mkushi, 1st respondent’s legal practitioners

Webb, low and Barry, 2nd respondent’s legal practitioners