Court name
Supreme Court of Zimbabwe
Case number
SC 14 of 2005
Civil Appeal 69 of 2003

Gamanya v Chimbari and Others (69/03) (SC 14 of 2005, Civil Appeal 69 of 2003) [2005] ZWSC 14 (06 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 14



5


SC
14/05





















Judgment
No. SC 14/05



Civil Appeal No. 69/03








MADELINE
GAMANYA v (1) R J CHIMBARI (2) VINCENT TENDAYI (3)
HELEN GAMANYA (4) SHERIFF FOR ZIMBABWE
(5) REGISTRAR
OF DEEDS








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
FEBRUARY 7, 2005








V
Muza
, for the
appellant





D
Kanokanga
, for the
second respondent





No
appearance for the first, third, fourth and fifth respondents






ZIYAMBI JA: The appellant is the
widow of the late Zebediah Mapfumo Gamanya (‘Mapfumo’) who died
on 4 January, 1997. Prior
to his death and on 17 September 1990,
the third respondent, (‘Helen’) who is the ex-wife of Mapfumo,
was awarded one third of
the value of Lot 105 Marlborough Township
(‘the property’) by virtue of a divorce order in Case No: HC
5061/88. Mapfumo died
before the one third portion was paid to
Helen. Accordingly, at the time of his death, only two thirds of
the property formed part
of the deceased estate for distribution to
Mapfumo’s beneficiaries.



On
9 January, 2001, Helen caused a writ of execution to be issued
against the deceased estate. The property was attached and
subsequently
sold to the second respondent at a public auction held
in Harare on 29 June, 2001 for a purchase price of 2.2 million
dollars.
The public auction sale was conducted by the Sheriff for
Zimbabwe, who is the fourth respondent in this matter. The second
respondent
was declared the purchaser on 17 July 2001. Thereafter,
an objection was made by the executor of the deceased estate on the
grounds
that he had secured a buyer for the property who was willing
to pay $3 200 000.00 for it. On 13 December 2001 the Sheriff having
heard the matter and, having received no proof from the executor of a
better offer for the property, dismissed the objection and
confirmed
the sale. Instructions were given to the conveyancers to pass
transfer upon receipt of the purchase price. The purchase
price was
paid by the second respondent, upon request, on 27 March 2002.







On 23 August 2002 the appellant,
aggrieved by the Sheriff’s decision aforesaid, filed an application
in the High Court purportedly
in terms of Rule 359 (8) of the rules
of the High Court seeking an order setting aside the sale on the
ground that by reason of the
delay of 9 months in payment of the
purchase price she had suffered financial prejudice as property
prices had risen considerably
during the 9 months following the sale
of the property. The appellant blamed the late payment on the
second respondent as purchaser
of the property.







The second respondent in his
opposing affidavit alleged that the delay in processing the sale was
due to objections made by or on
behalf of the appellant. He alleged
that he had paid the purchase price within a short time after it had
been requested by the
conveyancers. He denied that he was
responsible for the delay.



Helen
averred that the delay in payment of the purchase price was caused
by the appellant. She claimed that the appellant had obstructed
many efforts in the past to sell the property; that she had waited
close to 12 years for her share; that she could no longer accept
the
dilatory tactics being employed by the appellant and that she is now
a pensioner with no income and desperately in need of her
share of
the proceeds of the sale of the property. It was common cause that
the appellant is still residing at the property rent
free.







The learned judge in the court a
quo
found the
application to be devoid of merit and dismissed it, hence the present
appeal.







Rule 359 (8) provides as follows:


“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”.







The sale was confirmed by the
Sheriff on 13 December 2001. The parties were notified of that
decision on 23 December 2001. This
application ought to have been
filed in January 2002. Instead, it was filed on 23 August 2002,
eight months after the appellant
was notified of the Sheriff’s
decision. No condonation was applied for or granted. On this
ground alone the application ought
to have been dismissed.







Further, there is merit in the
submission by the respondents that blame for the delay was
attributable to the appellant and not to
the second respondent.
The executor represented the interests of the estate of which the
appellant is a beneficiary. The objection
by the executor delayed
the matter to December 2001. The second respondent performed his
part of the agreement by making payment
when requested. The ground
of complaint relied on by the appellant has, therefore, not been
established.







Accordingly no good ground has
been advanced as to why the sale should be set aside.







Sales in execution by the Sheriff
are not easily set aside by the courts. Once a sale is confirmed,
it is no longer a conditional
sale and the court is normally very
reluctant to set it aside, for the reason that reliability and
efficacy of sales in execution
must be upheld. If that were not so,
the public would have no confidence in such sales in execution. See
Lalla v Bhura
1973(2) RLR 280 (G),
Morfopoulos
v Zimbabwe Banking Corporation Limited

& Ors
1996 (1) ZLR 626 (H), &
Munyoro
v Founders Building Society & Ors

1999 (1) ZLR 344 (H).






The
appellant did not push for an early transfer of the property or an
early release of the amount that was due to her. In fact
she did
nothing, but was content to remain in the house, rent free, for as
long as she possibly could, it being in her interests
to do so.





It
is not surprising then, that at the hearing of the appeal Mr
Muza
found himself unable to make any meaningful submissions on behalf of
the appellant. The stance taken by Counsel for the appellant
was
proper in the circumstances. The appeal is devoid of merit.





It
was for the above reasons that at the end of the hearing we dismissed
the appeal with costs.










SANDURA  JA: I agree.














GWAUNZA
JA: I agree.










Gutu & Chikowero,
appellant's legal practitioners


Kanokanga
& Partners
, second
respondent's legal practitioners