Court name
Supreme Court of Zimbabwe
Case number
SC 1 of 2003
Civil Appeal 249 of 2002

Malawusi v Marufu and Others (49/02) (SC 1 of 2003, Civil Appeal 249 of 2002) [2003] ZWSC 1 (13 February 2003);

Law report citations
Media neutral citation
[2003] ZWSC 1













REPORTABLE
ZLR (1)


Judgment
No. SC 1/03


Civil
Appeal No. 249/02








MARGARET
MALAWUSI v





(1)
SLADEN MARUFU (2) WINTERTONS


(3) THE
SHERIFF FOR ZIMBABWE


(4) THE
REGISTRAR OF DEEDS N.O.


(5) EAGLE
ESTATE AGENTS (PRIVATE) LIMITED


(6)
BEVERLEY BUILDING SOCIETY








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & ZIYAMBI JA


HARARE,
JANUARY 14 & FEBRUARY 4, 2003








F
Girach
,
for the appellant





O
C Gutu
,
for the first respondent





No
appearance for the second respondent





No
appearance for the third respondent





No
appearance for the fourth respondent





No
appearance for the fifth respondent





No
appearance for the sixth respondent





SANDURA  JA:
This is an appeal against a judgment of the High Court which
ordered the appellant to transfer to the first
respondent (“Marufu”)
her immovable property in Milton Park, Harare, (“the property”)
which had been bought by Marufu at
a public auction. The property
had been mortgaged to the sixth respondent (“Beverley”) by the
appellant who subsequently defaulted
in paying the monthly
instalments to Beverley.





The
factual background is as follows –






1. On 20 April 1999 Beverley
instituted civil proceedings against the appellant claiming payment
of the balance due in terms
of the mortgage bond, and a judgment was
subsequently granted in its favour.







2. On 15 July 1999 a writ of
execution was issued at Beverley’s instance, and the property was
subsequently attached.







3. On 13 January 2000
Ms Mahlunge (“Mahlunge”), then a partner in the second
respondent (“Wintertons”), a law firm
acting for Beverley, wrote
to the third respondent (“the Sheriff”) instructing him to sell
the property by public auction.







4. On 20 February 2000 the
appellant died.







5. On 22 February 2001 the
Sheriff wrote to Wintertons informing them that the property would be
sold by public auction on 4 May
2001.







6. On 12 March 2001 Beverley
wrote to Wintertons informing them that the arrears on the
appellant’s account as at that date
were $17 467.71 and urging
them to proceed with the sale in execution. The letter was copied
to the appellant, which would
suggest that Beverley was not aware
that the appellant had died.







7. On 9 April 2001 Mahlunge
purportedly wrote to the Sheriff instructing him to cancel the sale.
However, the letter does not
form part of the record, and the
Sheriff denied receiving it.







8. On 4 May 2001 the
property was sold by public auction. Marufu, who bid $3 000 000.00
for the property, was the
highest bidder.







9. On 4 June 2001 the
Sheriff declared Marufu the purchaser of the property.







10. On 8 June 2001 the
Sheriff wrote to Wintertons advising them that he had, on 4 June
2001, declared Marufu the purchaser
of the property, and that if no
objections were made to him in writing within fifteen days from the
date of the declaration of the
purchaser he would confirm the sale.
The letter was copied to the fifth respondent (“the auctioneer”),
Marufu and the appellant.







11. On 12 June 2001 a
Certificate of Executorship was issued to Margaret Malawusi
(“the executrix”) by the magistrate's
court at Harare.







12. On 4 July 2001 the
Sheriff, having received no objection to the confirmation of the sale
of the property to Marufu, confirmed
the sale.







13. On 6 July 2001 the
Sheriff wrote to Wintertons informing them that as no objection had
been received the sale of the property
to Marufu had been confirmed
on 4 July 2001. The letter was copied to the auctioneer, the
appellant and Marufu.







14. On 25 July
2001 Wintertons sent to Marufu a
pro
forma

account indicating that the purchase price of $3 000 000.00
had been paid in full, and calling upon Marufu to pay the transfer
fees of $222 622.50.







15. On 27 July 2001
Wintertons submitted the documents relating to the transfer of the
property to the Sheriff for his signature.







16. On 31 July 2001 Marufu
paid the transfer fees of $222 622.50 to Wintertons.







17. On 24 August 2001
Mahlunge wrote to the Sheriff requesting him not to confirm the sale.
In that letter she stated that
when she received the Sheriff’s
letter confirming the sale, and later received the instruction that
Wintertons should attend to
the transfer of the property, she
overlooked the fact that on 9 April 2001 she had written to the
Sheriff instructing him to
cancel the sale.







18. On 29 August 2001 the
Sheriff wrote to Wintertons referring to their letter of 24 August
2001 and informing them that
as they had cancelled the sale, which
had already been confirmed, they were obliged to refund to Marufu the
auctioneer’s commission
of $13 929.00 which Marufu had already
paid.







19. On 6 September 2001
Wintertons refunded to Marufu the transfer fee of $222 622.50 by
cheque. The cheque was accepted
on a without prejudice basis by
Marufu, who later sought legal advice and challenged the purported
cancellation of the sale.







20. On 19 September 2001 the
Sheriff, after carefully considering the matter, wrote to Wintertons
informing them that he had
changed his mind and that as the sale had
already been confirmed it could only be cancelled pursuant to a court
order. In the circumstances,
he instructed them to proceed with the
transfer of the property to Marufu. In addition, he informed them
that he had not received
the letter dated 9 April 2001
instructing him to cancel the sale.







21. On 26 October 2001 the
Sheriff signed the relevant transfer documents.







22. Finally, on 29 October
2001 Marufu filed a court application in the High Court seeking an
order compelling the appellant
to attend to the registration of the
transfer of the property to him. The application was opposed by the
appellant, but was not
opposed by the second, third, fourth, fifth
and sixth respondents. However, the order sought was subsequently
granted. Aggrieved
by the result, the appellant appealed to this
Court.






At
the hearing of this appeal it was submitted on behalf of the
appellant, as set out in the appellant’s heads of argument, that
the learned judge in the court
a
quo
had erred:






“1. in failing to take (into)
account that Wintertons as the agent for the judgment creditor had
instructed the Sheriff to cancel the
sale;





2. in
holding that the sale was valid notwithstanding the prior death of
the deceased (the appellant);





3. in
finding that this was a case in which to exercise its discretion by
ordering specific performance; and





4. by
failing to hold that this was a proper case in terms of rule 359
of the Rules (of the High Court, 1971) (in which to hold)
that the
sale in execution should be set aside.”






I
shall consider the four grounds of criticism in turn.





The
first ground, i.e. that the learned judge failed to take into account
the fact that Wintertons had instructed the Sheriff to
cancel the
sale, has no merit. That is so because the appellant did not adduce
any evidence to show that the letter purportedly
written on 9 April
2001 and instructing the Sheriff to cancel the sale was received by
the Sheriff. The Sheriff denied receiving
it, and nothing indicated
that he had in fact received it.





In
addition, what happened after 9 April 2001 is inconsistent with
the letter having been sent to the Sheriff.





In
the first place, as already stated, on 8 June 2001 the Sheriff
wrote to Wintertons advising them that he had, on 4 June
2001,
declared Marufu the purchaser of the property, and that if no
objections were made to him in writing within fifteen days from
the
date of the declaration of the purchaser he would confirm the sale.
Wintertons did not object to the confirmation of the sale.





Secondly,
on 6 July 2001 the Sheriff wrote to Wintertons informing them
that, having received no objection, he had confirmed
the sale of the
property to Marufu on 4 July 2001. Again, there was no protest
from Wintertons.





Thirdly,
on 25 July 2001 Wintertons sent to Marufu a
pro
forma
account calling
upon him to pay the transfer fee of $222 622.50, which was
subsequently paid on 31 July 2001. If Wintertons
had
instructed the Sheriff to cancel the sale, they should not have
called upon Marufu to pay the fee.





Fourthly,
on 27 July 2001 Wintertons submitted the documents relating to
the transfer of the property to the Sheriff for his
signature.
Again, if they had instructed the Sheriff to cancel the sale, they
should not have sent the transfer documents to him
requesting him to
sign them.





In
my view, the events set out above are inconsistent with the
allegation that the letter instructing the Sheriff to cancel the
sale
was sent to him. The explanation by Mahlunge that she had forgotten
that she had sent the letter to the Sheriff instructing
him to cancel
the sale is unacceptable.





I
now wish to deal with the second ground relied upon by counsel for
the appellant. It was submitted that the learned judge in
the court
a quo
erred in holding that the sale was valid notwithstanding the fact
that the appellant died before the sale was conducted.





What
is in issue here is the interpretation of s 44 of the
Administration of Estates Act [
Chapter 6:01]
(“the Act”). The section reads:





“44. Suspension
of execution against deceased estate





(1) No
person who has obtained the judgment of any court against any
deceased person in his lifetime, or against his executor in
any suit
or action commenced against such executor, or which, having been
pending against the deceased at the time of his death,
has thereafter
been continued against the executor of such person, may sue out or
obtain any process in execution of any such judgment
before the
expiration of the period notified in the
Gazette
in manner in this Act provided.





(2) No
such person as aforesaid shall sue out and obtain any process in
execution of any such judgment as aforesaid within six months
from
the time when letters of administration have been granted to the
executor against whom execution of such judgment is sought
without
first obtaining an order from the Court or some Judge thereof for the
issue of such process."





Mr Girach,
who appeared for the appellant, submitted that the section affects
not only the issuing of a writ of execution after the death of
a
judgment debtor, but also the continuation of the process of
execution where the writ of execution was issued before the death
of
the judgment debtor, as in the present case. In other words, he
submitted that the appellant’s death stopped the execution
of the
judgment granted in favour of Beverley. I respectfully disagree.





In
my view, the section is clear and unambiguous. Subsection (1),
in relevant part, reads:






“No
person who has obtained the judgment of any court against any
deceased person in his lifetime …
may
sue out or obtain any process in execution

of any such judgment …”. (emphasis added)





Clearly,
what is prohibited is suing out or obtaining a writ of execution
after the death of the judgment debtor.





Subsection (2),
in relevant part, reads:






“No
such person … shall
sue
out and obtain any process in execution

of any such judgment … without first obtaining an order from the
Court or some Judge thereof
for
the issue of such process

(emphasis added)





Again,
subs (2) makes it clear beyond doubt that what is affected is
suing out and obtaining any process in execution of the
judgment
after the judgment debtor’s death. In other words, what is
affected is applying for and obtaining the writ of execution
after
the debtor’s death.





Neither
subs (1) nor subs (2) affects the continuation of the
process of execution where the writ was issued before the
debtor’s
death, as was the position in the present case.





In
this case, it was common cause that the writ of execution was issued
on 15 July 1999. The appellant (the judgment debtor)
died on
20 February 2000. The property in question was sold by public
auction on 4 May 2001 and the letters of administration
were
granted on 12 June 2001.





In
the circumstances, there is no merit in the second ground relied upon
by counsel for the appellant.





I
will now deal with the third and fourth grounds relied upon by
counsel. These were that the learned judge should not have
exercised
his discretion and ordered specific performance, and that
the sale ought to have been set aside in terms of rule 359 of
the
High Court Rules, 1971.





In
my view, the submission that the learned judge should not have
ordered specific performance has no validity. Counsel for the
appellant did not indicate in what way the learned judge had
improperly exercised his discretion. The fact that the amount owed
by the appellant was small when compared to the value of the property
sold by public auction is irrelevant.





Finally,
rule 359 of the High Court Rules, 1971, in relevant part, reads
as follows:





“359.
Confirmation or setting aside of sale





(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
–





(a) the
sale was improperly conducted; or






(b) the property was sold for an
unreasonably low price;






or
on any other 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 the purchaser …





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.” (emphasis added)





In
this case, the sale was properly conducted and there is no allegation
that the property was sold for an unreasonably low price.
The sale
was conducted on 4 May 2001 and Marufu was the highest bidder.
On 4 June 2001 the Sheriff declared Marufu the purchaser
of the
property.





Subsequently,
when the Sheriff did not receive any objection to the confirmation of
the sale he confirmed it on 4 July 2001.
Thereafter, Marufu
paid the purchase price of $3 000 000.00 and the transfer
fee of $222 622.50. And on 26 October
2001 the Sheriff
signed the transfer documents. No request to set aside the sale had
been made in terms of rule 359.





In
the circumstances, there are no equities in favour of the appellant
which would warrant the setting aside of the sale.





The
appeal is, therefore, dismissed with costs.














CHEDA
JA: I agree.














ZIYAMBI
JA: I agree.














Scanlen
& Holderness
,
appellant's legal practitioners


Gutu
& Chikowero
, first
respondent's legal practitioners