Court name
Supreme Court of Zimbabwe
Case number
SC 132 of 2002
Civil Appeal 216 of 2002

Maparanyanga v Sheriff of the High Court and Others (16/02) (SC 132 of 2002, Civil Appeal 216 of 2002) [2003] ZWSC 132 (17 March 2003);

Law report citations
Media neutral citation
[2003] ZWSC 132













REPORTABLE
(112)


Judgment
No. SC 132/02


Civil
Appeal No. 216/02








BOBBY
MAPARANYANGA v





(1) THE
SHERIFF OF THE HIGH COURT


(2) DEAN
PERNELL VAN SCHALKWYK


(3) THE
REGISTRAR OF DEEDS


(4)
STANBIC BANK (ZIMBABWE) LIMITED


(5)
ZIMBABWE BANKING CORPORATION LIMITED








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA AJA


HARARE,
NOVEMBER 11, 2002 & MARCH 18, 2003








M
Chiwunda
,
for the appellant





E
T Matinenga
,
for the first respondent





A
Chinake
,
for the second respondent





No
appearance for the third, fourth and fifth respondents





GWAUNZA
AJA: At the centre of this longstanding and acrimonious dispute is
immovable property and land known as Lot 14 of
subdivision A
of Tynwald South of Fountainbleau, just outside Harare. The
appellant and the second respondent each claim rightful
title to the
property. In doing this, and in challenging the other’s claim,
the parties have filed with the High Court and Supreme
Court numerous
applications and counter-applications, and no less than six different
judges have adjudicated upon these applications.
The dispute dates
back to April 1995, when the property, then registered in the
appellant’s name, was attached and sold in execution.





The
background to the dispute is as follows –





The
appellant, who took title of the property in 1987, borrowed money
from, or incurred certain debts with, among others, the fourth
and
fifth respondents. He defaulted in his repayments, resulting in the
property being attached and sold in execution. This was
done in
terms of a private treaty following an unsuccessful sale by public
auction. The second respondent was the buyer.





Pursuant
to the sale, the first respondent, who was the Sheriff of the High
Court (“the Sheriff”), and the second respondent entered
into and
signed a standard agreement of sale dated 24 April 1995, the
first condition of which read:






“1. That
the seller hereby sells to the purchaser who buys the property
mentioned above together with all the improvements thereon
at a price
of $650 000.00, payable
on
the signing of this agreement

(my emphasis)







Contrary to
this condition, the second respondent paid a deposit of $110 000.00
on 25 April 1995 and $69 900 on 16 May
1995, making a
total of $180 000.00. He hoped to raise the balance through a
mortgage bond. At the time that the matter
was heard in the court
a quo
no other payments had been effected. The second respondent, however,
proceeded to take occupation of the property.





The
appellant challenged the validity of this sale, and filed the first
application to have it set aside in April 1995. He argued
that the
price at which the property had been sold was unreasonably low. The
application was dismissed by GIBSON J in December
of that year.
The appellant filed an appeal to this Court, resulting in the
suspension of transfer of the property to the purchaser.
This
appeal was withdrawn in February 1998.






Before the
judgment of GIBSON J could be enforced, the appellant filed the
present application. Although the propriety of the
appellant having
done so was raised in the court
a quo
(given the fact that the appellant could have included the ground
upon which he made the present application in the grounds for the
first application), the learned trial judge noted that the Rules of
the court did not enact a time limit for bringing such an
application.
He decided to hear the matter in full and decide its
merits.





As
correctly noted by the learned trial judge, the prosecution of this
application has by no means been uneventful. It was first
set down
before CHIDYAUSIKU  JP (as he then was) on 20 July 1998,
but was postponed upon the JUDGE PRESIDENT’S order
for a
further report from the Sheriff clarifying certain issues, the main
one having to do with the fact that, contrary to the agreement
of
sale concluded between the Sheriff and the second respondent, the
latter had not paid the purchase price in full upon signing
the
agreement. When the matter resumed on 26 November 1998,
MUBAKO J postponed it until it was set down again on 1 April
1999. A further postponement was ordered on that day and the
appellant was put on certain terms. He failed to comply, whereupon
default judgment was entered against him on 4 June 1999. He
thereafter successfully applied for rescission of this judgment
before ZIYAMBI J (as she then was). The learned judge was
satisfied the appellant had, on the merits of the case, shown good
and proper cause for the setting aside of the default judgment. It
is pertinent to set out ZIYAMBI J’S assessment of the
matter
at that stage:





“Whatever
the correct procedure may be adjudged to be, the applicant does raise
issues which could result in the application being
determined in his
favour – the main observation being that, contrary to the terms of
the agreement of sale, the purchase price
was not paid at the time of
signature of the agreement and before instructions were given to
legal practitioners for the transfer
of the property to the second
respondent.






It is also
noteworthy that although this was a sale in execution and the
proceeds were to be applied to the liquidation of the applicant’s
debts to the judgment creditor as well as other participating
creditors, it has not been possible to make payment to the said
creditors
out of the proceeds of the sale, since the purchase price
has not been paid by the respondent.”
1






The
application was finally heard in the court
a quo
on 10 May 2000. The appellant advanced two main grounds for
challenging the sale of the property to the second respondent.






The first ground was that the
sale was invalid for want of consent given by the appellant, as
required by subrule 358(1) of the Rules
of the High Court. After
citing the relevant rule and determining that the sale had in effect
been conducted in terms of subrule
358(2), the learned trial judge,
in my view quite correctly, rejected this contention.





The
second ground raised by the appellant was that the failure by the
second respondent to pay the purchase price of the property
in full
upon the signing of the agreement of sale with the Sheriff was fatal.
This ground fell under the ambit of “any other
good ground”
under rule 359. The learned trial judge, after examining a
number of features and developments in the case,
rejected this ground
too.





The
learned trial judge then dismissed the application and ordered the
appellant to surrender the title deeds to the property to the
Sheriff, failing which the Sheriff was authorised to sign all such
documents in place of the appellant as may be necessary to effect
transfer into the name of the second respondent. The latter was
also ordered to pay $450 000.00, being the balance of the
purchase price, such price being tendered as against transfer of
title, failing which the sale in execution would be deemed to have
been cancelled. The appellant was ordered to pay costs on the
higher scale.





The
appellant then filed this appeal. Before it could be heard, the
second respondent, presumably having complied with the part
of the
High Court order requiring him to pay the balance of the purchase
price and not having received the original title deeds from
the
appellant, took transfer of the property in question. The first
respondent, also in compliance with the High Court order, had
signed
the relevant transfer documents. Both actions amounted,
effectively, to the enforcement, pending appeal, of the judgment
now
being appealed against. More on that later.





The
case attracted considerable media publicity. Pressure groups
advancing a position in support of the appellant’s case were
drawn
into the fray. At one point, neither the second respondent nor the
appellant were in occupation of the property, such privilege
having
been taken by members of one of the pressure groups. The second
respondent successfully applied for a spoliation order against
the
pressure group. Each party accused the other of threats to and
against the other’s life. The second respondent was forced
to
leave the country, while the appellant was compelled to seek an order
from the court to allow him back into the house in order
to “preserve
it” in the light of reports of vandalism. This application was
not pursued since the date of hearing of the matter
was imminent.






Mr Charles
Nyatanga (“Nyatanga”), in his capacity as the Acting Sheriff of
the High Court, was vilified for his part in
the sale, which was
perceived to have been biased against the appellant, if not criminal.
He was even threatened with prosecution
for fraud. This, and the
points that the former Sheriff had raised in his supplementary
report, prompted the judge in the court
a quo
to call Nyatanga to give oral evidence on his rôle in the matter.
After hearing Nyatanga, the learned trial judge noted he was
satisfied that the former had acted throughout:





“in
the impartial and professional manner required of his office and had
taken all decisions in good faith and in accordance with his
reasonable view of the rights of the matter”.





Having
read the evidence before the court, I agree with the learned trial
judge that Nyatanga acted in good faith and genuinely believed
he was
acting in the interest of all the parties.





Despite
the tensions generated in this dispute, and the many other aspects of
it that exercised the learned trial judge’s mind,
the matter in the
final analysis fell, and falls, to be determined on one issue. This
is whether the failure of the Sheriff and
the second respondent to
adhere strictly to the terms of the agreement of sale entered into
between themselves, in particular the
requirement that the full
purchase price be paid upon signing of the agreement of sale,
constitutes a ground for setting aside the
sale in question in terms
of rule 359 of the Rules of the High Court.





I
will digress at this juncture to consider the application made by the
appellant to adduce fresh evidence on appeal. The application
was
opposed by the first and second respondents, and judgment on it was
reserved until this judgment.






The fresh
evidence sought to be adduced by the appellant on appeal was
correspondence meant to prove that he had since paid off
all his
creditors, with the exception of the Commercial Bank of Zimbabwe,
with which he had entered into an agreement for payments
in
instalments. It was also meant to show that, contrary to the first
respondent’s evidence, no creditors had been paid from
the proceeds
of the sale of the property to the second respondent. The appellant
averred that he had not placed the evidence in
question before the
court
a quo
because he had failed to locate the relevant receipts, since they had
been left behind in the disputed property.





The
opposition to the application was raised primarily on the ground that
in none of the documents filed as proof of payment was
it indicated
when the creditors in question had actually been paid. The time of
payment of the debts said to have been paid by
the appellant was, of
course, relevant. The second respondent submitted, correctly, that
if the payment had been effected after
the sale in execution and the
preparation of a plan of distribution, then such payment did not
constitute a basis for setting aside
the sale.






The
application was also opposed on the ground that the evidence sought
to be adduced on appeal could have been obtained before the
application was heard in the court
a
quo
.
Also,

that
the issue of whether or not the creditors had been paid was not
relevant to the determination of whether or not the failure by
the
first and second respondents to adhere strictly to the terms of the
signed agreement of sale justified the setting aside of the
sale of
the property.







While I am not
entirely satisfied that the evidence sought to be adduced could not
have been obtained earlier, I am greatly persuaded
by this latter
argument. The relief sought in the court
a quo
and in this appeal is that the sale in execution be set aside, not
because the appellant has paid all the debts owed, but because
the
first and second respondents breached the terms of their agreement of
sale, resulting in the objective for conducting the sale
in the first
place – i.e. settlement of the judgment debts – being defeated.
While proof of payment of the appellant’s debts
might in other
circumstances serve to bolster his case for the setting aside of the
sale, and perhaps serve to confirm that the purpose
of the sale in
execution had indeed been defeated, it is not a necessary
consideration in the determination of the issue at hand.
This
finding finds support in Herbstein and Van Winsen’s
The
Civil Practice of The Supreme Court of South Africa
2,
where it is noted that among the principles applied in deciding
whether to allow a party to adduce further evidence on appeal are
–
(i) that the evidence must be weighty, material and presumably worthy
of belief, and must be such that, if adduced, it will be
practically
conclusive; and (ii) that justice requires such a course. These
two principles are not met
in
casu

considering the issue that has to be determined.






For
these reasons, the application by the appellant to adduce fresh
evidence on appeal is dismissed.





To
go back to the matter at hand. The appellant submits, while the
first and second respondents deny, that the failure of the first
and
second respondents to adhere strictly to the terms of the agreement
of sale they signed constituted a ground for setting aside
the sale.
The learned trial judge was persuaded by the arguments advanced on
behalf of the first and second respondents. He noted
at p 20
of the cyclostyled judgment that:





“It
is unfortunate that the agreement was recorded on a standard form of
contract which did not accurately record the terms of
sale agreed
upon. Had the dispute arisen between the Sheriff and the purchaser,
this failure may have been extremely damaging.
It is not, however,
a circumstance affecting the regularity of the sale nor the validity
of the contract.






It is,
nevertheless, necessary to comment critically upon this aspect. By
using the
pro
forma

contract, and not producing a written memorandum that accurately
records the terms agreed, the Sheriff’s office has laid itself
open
to charges of irregularity and to the perception of collusion. It
has been to an extent responsible for the prolongation of
this
litigation and the consequent delay in distribution. Upon
examination, I am satisfied that there was no intention to conceal
the true terms; nor to favour the purchaser; nor to act wrongfully in
any way. I accept the explanation that the standard form
was used
as a matter of course and that the terms agreed are quite normal.
Yet I must hasten to add, that being the case, that
in future
standard forms should not be used unamended where they do not reflect
the actual agreement. In future, the written contract
must reflect
the precise terms of the sale.”





As
indicated later in this judgment, I do not agree that the breach did
not affect the regularity of the sale in question. I also
do not
regard the standard agreement of sale as inferior to, nor less
binding than, any other contract properly entered into by the
contracting parties. Consequently I am satisfied the consequences
of disregarding a material term of such contract are a lot more
drastic than those suggested by the learned trial judge. Because of
the nature of the contract in question, the consequences are
not, in
my view, mitigated by the fact that the dispute did not arise between
the signatories to the contract.





The
evidence of Nyatanga, which the learned trial judge accepted,
was that despite signing the agreement of sale, he and the
second
respondent nevertheless considered themselves, in effect, to be bound
by the terms of payment outlined in the second respondent’s
offer
of purchase. In other words, the signing of the standard contract
of sale was regarded as a mere formality, devoid of the
binding force
that the signing of any other contract would normally have.





That
this should not have been the case is, ironically, suggested by
Nyatanga himself in his
viva
voce
evidence in the
court
a quo.
He stated:





My
lord, it is a standard practice in the Sheriff’s office that if you
are proceeding in terms of Rule 358(2), the Sheriff
has to have
some form of agreement and that is a standard agreement which has
been there, is there and
still
continues to be used for the disposal of properties under private
treaty
.” (my
emphasis)





It
is not in dispute that despite this acknowledged practice in his
office, Nyatanga went outside this practice and sought to dispose
of
the property according to terms he said were negotiated separately
with the buyer, i.e. the second respondent.





However,
a closer analysis of these other terms reveals that they, too, fell
outside what Nyatanga and the second respondent averred
was
understood between them. This was that payments would be effected
according to the terms outlined in the second respondent’s
offer of
purchase. According to that offer, a deposit of $180 000.00
was to be paid as follows –





$110 000.00
on 5 April 1995; and


$70 000.00
on 11 April 1995.





The
balance of $450 000.00 was to be paid against registration of
transfer. Contrary to this offer, the first instalment of
$110 000.00 was, according to the receipt, paid on 25 April
1995; while $69 900 was paid on 16 May 1995. The
balance
of $450 000.00 was still to be paid at the time this matter was
heard in the court
a quo.





The
departure from the terms offered by the second respondent disproved
his evidence and that of Nyatanga that they had, despite
signing the
standard contract of sale, continued to regard themselves as bound by
the terms of his offer of purchase. More significantly,
however,
this departure suggests that the office of the Sheriff set out to
dispose of the immovable property in question without
reference to
any written terms of agreement since, in reality, neither the
standard agreement of sale nor the second respondent’s
offer of
purchase (whatever its merits) were followed.





While
no explanations were tendered in respect of the failure to follow the
offer of purchase, much, as already indicated, was said
as
explanation for not adhering to the terms of the standard contract of
sale. This was, in effect, that cash buyers of immovable
property
were rare, that mortgage finance, normally paid upon transfer, was
consequently the norm and that the Sheriff had been satisfied
that
payment of the balance of the purchase price had been adequately
guaranteed.





These
explanations must be considered against the background that the
Sheriff’s office, as a matter of administrative expediency,
required not only that the Sheriff and the purchaser in circumstances
such as those at hand, sign a standard contract of sale, but
that
both parties observe the terms thereof. From a contractual point of
view, having signed such contract, both parties were bound
by and
obliged to adhere to its terms. The second respondent must have
fully understood the terms of the contract before he signed
it. In
the absence of any of the defences available to a signatory who
wishes to escape liability under a contract – misrepresentation,
fraud, illegality, duress, mistake – he cannot now be heard to say
he is was not bound by the contract. That the contract was
in the
form of a standard agreement of sale in no way detracts from its
validity as a binding contract. It can hardly have been
in the
contemplation of the drafters of the standard contract that it would
be signed as a mere formality, nor that after signing
it the parties
would proceed with impunity to contravene its provisions. It is
not, in my view, unreasonable to suppose that the
standard contract,
and the requirement for signing it, were designed with the purpose of
preventing, among others, the very action
(and its consequences) that
the Sheriff and the second respondent took in this case. No doubt
the standard contracts were conceived
out of the recognition that
sales of immovable property, involving as they generally do, huge
amounts of money and complex conditions,
needed to be handled in such
a manner as to minimise disputes related to such conditions. As
correctly pointed out by the learned
trial judge, the failure by the
Sheriff, as the author of the
pro
forma
contract, to
enforce its terms has led to that office being accused of irregular
conduct and collusion with the second respondent.
That conduct, it
hardly needs mentioning, forms the basis of the appellant’s claim
in these proceedings.




If
the wish of the Sheriff was to negotiate terms of sale based on the
prevailing downturn in market demands, he should have considered
amending the standard contract so that it responded to the situation
obtaining on the ground, rather than leave the parties to sign
the
contract as a formality.





The
learned trial judge was satisfied that there was no breach of the
contract by the purchaser when he failed to pay the full purchase
price on signature of the contract. He observed as follows at p 18
of the cyclostyled judgment:





“Payment
of the first part of the deposit, according to a report by the former
Sheriff, was made on signing of the sale agreement but
only receipted
thereafter. Thus no material breach by the purchaser is there
disclosed. Payment of the second part of the deposit
was delayed
and it may be that the Sheriff could have cancelled the sale for this
apparent breach. It was perfectly proper not
to do so, however,
given the difficulty encountered in selling the property and given
that the fundings for the mortgage had been
secured.”





I
do not agree. Firstly, the agreement signed by the parties provided
that the full purchase price, not only part of it, was to
be paid
upon the signing of the agreement. By not paying the full amount as
envisaged by the contract, the second respondent clearly
breached a
material term of the agreement. Secondly, the Sheriff, according to
the contract, would have been perfectly within his
rights to cancel
the agreement at the time the first partial payment was made. The
agreement envisaged neither a deposit nor subsequent
payments, so the
question of delayed payment of part of the deposit did not arise.
Thirdly, the provision of the contract requiring
transfer against
payment of the full purchase price was explicit in its terms and did
not admit of payment through a mortgage.





The
learned trial judge was also satisfied no blame attached to the
purchaser and that he had performed his obligations under the
contract with the Sheriff.





Again,
I do not agree. The second respondent, who cannot have been
mistaken as to the contents of the contract that he signed, undertook
to pay the full purchase price upon signing. He did not do so, but
offered, instead, delayed, staggered and insufficient payments.
The
fact that the Sheriff condoned and even abetted this departure by the
second respondent from the terms of the contract does
not in any way
alter the fact that breach the contract he did.





The
situation that then presents itself is one where two parties signed a
contract providing for one thing, but, with one condoning
the other’s
material breach thereof, they proceeded to do the opposite of what
the contract provided. They sought to persuade
the court
a quo
to condone this departure from the signed contract, and accept that
they had all along been
ad
idem
as to the other
terms they wished to be bound by. This was despite the fact that an
analysis of what was tendered as written proof
of such other terms
revealed that these, too, were not complied with.





It
is argued for the second respondent, despite this background, that it
does not lie in the “mouth of a third party, unconnected
to the
contract,” to claim that the contract was breached, when the very
parties to the contract express their consensus
ad
idem
and both consider
themselves bound by the contract.





I
am not persuaded by this argument. Had the contract in question not
been one in which other people had vested interests, the mutual
departure from its material terms by the parties thereto might not
have been of any moment. Such, however, is not the case
in
casu
. Unlike in
normal contracts of sale, where the seller is synonymous with the
owner of the asset being sold, or his duly authorised
agent, the
first respondent was neither the owner of the property nor his duly
authorised agent. He was, in effect, an agent of
the court in the
process of execution. His rôle in signing the contract of sale was
a facilitative one. The money that was to
be paid as the purchase
price was to be promptly paid to the judgment creditors concerned, in
order to settle the debts owed to them
by the judgment debtor, in
this case, the appellant. To the extent that the judgment creditors
expected to be paid in this manner,
hopefully in full, and the
judgment debtor, by that token, expected, finally, to be freed from
his debts, all clearly had a vested
interest in the contract of sale
in question. This interest is what “connected” them to the
contract in question.





That
the judgment creditor and debtor have an interest in this type of
sale is very aptly highlighted in the following passage from
Mackeurtan’s
Sale of
Goods in South Africa
,3
which appears under the heading “
Common
law duties of officers conducting judicial sales
”:





“…
The
officers of execution must take due care of the articles to be sold,
and it is their duty to obtain as high a price as possible.
Their
responsibility is first to the judgment creditor and secondly, to the
debtor. … They must pay over the price to the
creditors to the
extent of their debts and the balance to the debtor. … If they
deliver goods to the purchaser without getting
payment, the risk of
his default is theirs, for they are under obligation to exact the
price
on
the spot
.” (my
emphasis)





While
such interest normally relates to the price offered for the property,
it is not, in my view, unreasonable (and this is confirmed
in the
passage cited above, by the words “on the spot”) for either party
to seek to protect their interest by demanding that
the mode of
payment agreed between the Sheriff and the buyer is such as would
result in the immediate fulfilment of their expectations
as outlined
above.





The
interest of the judgment creditor and debtor is put beyond doubt by
rule 359 of the High Court Rules, which gives a person
with such
an interest in the sale the right to challenge it on, among others,
any good ground shown.





It
hardly needs emphasising that in negotiating a sale of immovable
property by private treaty in circumstances such as those obtaining
in casu
the Sheriff must always be conscious of the vested interest and
rights that other people have in the property that he sells in
execution,
including that sold in a private treaty. As evidenced by
the standard agreement of sale, the Sheriff’s office was, indeed,
alive
to the peculiar and sensitive dynamics surrounding sales of
this nature. The standard agreement was clearly meant to minimise
controversy.
By embodying the common law duties of officers
conducting judicial sales, it was designed also to facilitate the
smooth transfer
of the property in question to the buyer, while at
the same time ensuring that the interests of the judgment creditor
and debtor,
as already outlined, were protected.





No
matter how well intentioned Nyatanga was (and I agree with the
learned trial judge that he did mean well), the fact remains that
the
various actions he took in this case amounted to a serious breach of
both the rules his office had specifically prescribed for
the conduct
of sales of this nature, and the common law duties of officers of
judicial sales. His actions also resulted in a material
breach of
the contract that he entered into in his official capacity, with the
buyer, i.e. the second respondent.





What
the Court has to decide in the light of this breach or omission is
whether it constitutes a good ground for the setting aside
of the
sale in question, as prayed by the appellant. In determining this
issue, I find the following passage from Mackeurtan’s
Sale
of Goods in South Africa
4,
to be instructive:





“…
it
is not every formality the omission of which will give rise to the
right under discussion (to set aside a judicial sale), for as
Matthaeus
observes, although the formalities of a judicial sale must be
observed to a nicety (
ad
unguem
), if only an
unessential or unimportant formality has been omitted, the sale will
not thereby be vitiated. The reasons for this,
he says, are the
maxim
minima praetor
non curat
and the fact
that it is not consonant with good faith to wrangle over
infinitesimal points of law (
de
apicibus finis
) (Ex
parte Roberts
3 SC
208).”





This
rule can be applied with equal force to situations, like the present,
where rather than an omission, there was breach of formalities
to be
followed. As indicated, the breach was neither unessential nor
unimportant. It was material. Unlike the learned trial
judge who
in his discretion ruled otherwise, I am satisfied the ground on which
the appellant’s claim is premised is a good ground.





The
second respondent failed to comply strictly with the condition that
the purchase price was to be paid upon the signing of the
contract.
Instead, he offered an alternative mode of payment. The learned
trial judge was satisfied no material breach of the
contract was
thereby committed. Without spelling it out in so many words, he
was, effectively, also satisfied that under the circumstances
of this
case, the alternative mode of payment offered and guaranteed was
equivalent and equally effective to the one stipulated in
the
contract. I am not satisfied, on the facts presented, that this
conclusion was based on a correct interpretation of the law.





Christie,
in his book
The Law of
Contract in South Africa,
5
refers to performance effected in exactly the manner specified in the
contract as being
in
forma specifica
and
that effected in some equivalent manner that is equally effective as
being
per aequipollens.
Asserting that the distinction between the two is not always easy
to make, the learned author offered, among others, the following
guidelines (as per CLAASEN J in
Van
Diggelen v De Bruin
)6
for determining the issue –






(i) if the circumstances
(surrounding the case) afford no clue, then there is a presumption
that the condition must be performed
in
forma specifica

(
Wessels para 1337;
Pothier
Oblig.
206). This presumption is rebuttable by the promissor,
but
it cannot be rebutted where it is clear from the terms of the
contract and the surrounding circumstances that performance
in
forma specifica

was stipulated in the contract

(
Wessels
paras 2638-9) (my emphasis); and







(ii) the act or performance
tendered
per
aequipollens
, where
such is permissible, must in the first instance be an equivalent act
to that mentioned in the contract or be of such a nature
that it can
make no material difference to the promissee.






Applying
this test to the case at hand, it is evident that the second
respondent could not have rebutted the presumption that the
condition
in the contract concerning immediate payment of the purchase price,
had to be performed
in
forma specifica.
The
nature of, and circumstances surrounding, a sale in execution are
such that, in the absence of agreement to the contrary, full,
and not
staggered, payment is required. Nor, on the same authority cited
above, can it be said that the payments effected by the
second
respondent were equivalent to the full payment stipulated in the
contract. There can also be no doubt that such mode of
payment as
was offered and effected by the second respondent made a material
difference to the parties concerned. In addition to
whatever else
may have contributed to it, this failure to implement the condition
to the letter resulted in a situation where the
creditors were not
paid and remained unpaid five years later when the matter was argued
in the court
a quo.
Conversely, and by the same token, the appellant’s debts were not
paid and, on the evidence before the court 
a quo,
he had to raise funds to pay some of the debts himself.





I
am thus satisfied, on a proper consideration of the evidence before
the court, that the second respondent failed to satisfy both
of the
tests outlined above.




There
is one argument advanced on behalf of the second respondent that
calls for comment. It is contented for him that for public
policy
reasons a result allowing the sale
in
casu
to be set aside
would bring the entire system of judicial sales in execution into
disrepute. It is submitted further in this regard
that the public
at large would lose “entirely” the confidence which it has had up
to now in this well established device which
“for decades”
facilitated the recouping of debts owed to banks and the like.





I
am not persuaded, given the facts and circumstances of this case,
that setting aside this sale would have the undesirable outcome
described in the second respondent’s heads of argument.





The
Court is concerned with interpreting the law and dispensing justice.
That being the case, and in relation to the subject of
this case, a
situation resulting in the system of judicial sales being brought
into disrepute would clearly not be desirable. The
purpose of sales
in execution is, in law, quite clear. The common law duties of
officers involved in judicial sales are also trite.
The rules of
the court and certain administrative measures, like the standard
contract of sale
in
casu
, are formulated
with the object of ensuring that the purpose of such sales is
achieved. In the case where the common law, the rules
of the Court
and the administrative requirements of an office responsible for
enforcing judgments are flouted, the Court would be
failing in its
duty if it condoned such disregard of the law and rules. It would
be doing exactly that were it to allow the sale
in question to stand.





It
is crucial, for the proper performance of their work, that officers
of the law comply with, rather than pay lip service to, the
procedures designed to guide them in the performance of their duties.
Needless to say, strict adherence to such rules and procedures
would enhance public confidence in the system of judicial sales.





When
all is said and done, I am satisfied that the appellant proved his
case and was entitled to judgment in his favour. The order
of
punitive costs against him was unwarranted, even taking into account
the actions attributed to him that resulted in the final
determination of this matter being so inordinately delayed. The
second respondent is entitled to a refund of all the money that
he
paid as the purchase price of the property. The transfer of the
property into his name should not have been effected in the
light of
the appeal then pending before this Court. Title to the property
should have stayed with the appellant. The effect of
the judgment
in this appeal is therefore to nullify such transfer and restore the
status quo
prevailing before that transfer.





In
the premises, it is ordered as follows –





1. The
appeal is allowed with costs.






2. The Deed of Transfer No.
6184/2001 registered in favour of the second respondent on 28 June
2001 be and is hereby cancelled.






3. The Deed of Transfer No.
255/87 registered in the name of the appellant on 16 January
1987 be and is hereby revived.






4. The third respondent be and is
hereby directed, in respect of the relevant documents, to make the
endorsements and entries necessary
to give effect to paragraph 3 of
this order.






5. The order of the court a quo
is set aside and is substituted with the following –







“(a) The sale by private treaty
concluded between the first and second respondents on 24 April
1995 and in respect of Lot 14 of
Subdivision A of Tynwald South of
Fontainbleau, be and is hereby set aside;







(b) The second respondent shall
pay the costs of this application.“













CHIDYAUSIKU
CJ: I agree.













CHEDA JA: I agree.














Mapfumo
& Partners
,
appellant's legal practitioners (
In
forma pauperis
)


Kantor
& Immerman
, first
respondent's legal practitioners


Atherstone
& Cook
, second
respondent's legal practitioners



1
See
HH-68-2000 at p 3 of the cyclostyled judgment.




2
4
ed at p 909




3
5 ed
at p 252




4


ibid
at p 253




5


3 ed
at p 456




6
1954
(1) SA 188 (SWA) 192-3