Court name
Supreme Court of Zimbabwe
Case number
SC 19 of 2008
Civil Appeal 237 of 2003

Garati v Mau Mau and Others (SC 19 of 2008, Civil Appeal 237 of 2003) [2008] ZWSC 19 (14 August 2008);

Law report citations
Media neutral citation
[2008] ZWSC 19

03








REPORTABLE (13)





Judgment
No. SC 19/08


Civil
Appeal No. 237/03








GIVEMORE
GARATI v (1) STALIN MAU MAU (2)
BEVERLEY BUILDING SOCIETY


(3)
SHERIFF FOR ZIMBABWE (4) REGISTRAR OF DEEDS








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, MALABA JA & GARWE JA


HARARE,
FEBRUARY 26 & AUGUST 15, 2008









O C Gutu, for the appellant



Z M Kamusasa, for the first respondent



No appearance for the second, third & fourth respondents









MALABA JA: This is an appeal from a judgment of the High Court
dated 30 July 2003 dismissing with costs an application in
case HC
2596/03 for condonation of an alleged late filing of the court
application in case HC 1488/03.







The court application under HC 1488/03 was made on 18 February
2003. It was for an order to set aside the sale by public auction
of
stand no. 2580 Highfield (“the property”) belonging to the
appellant. The sale was in execution of a judgment in favour
of the
second respondent. At the public auction held on 30 November 2001,
the first respondent was the highest bidder. He was
declared the
purchaser of the property by the third respondent on 12 December
for a price of $2 050 000.00.







On 14 January 2002 the appellant lodged a written request with the
third respondent in terms of r 359(1) of the High Court Rules
(“the
Rules”) to set aside the sale on the ground that the property was
sold for an unreasonably low price. After hearing
submissions by the
parties on the request, the third respondent confirmed the sale on 15
April 2002.







Rule 361 of the Rules provides that immediately after the sale has
been confirmed and the conditions of sale complied with, the
Sheriff
shall proceed to give transfer of the property to the purchaser
against payment of the purchase money. The first respondent
was
under an obligation to pay the purchase price for the property
immediately after he was notified of the decision to confirm
the
sale. He did not do so. On 22 October 2002, the second respondent
wrote a letter to the third respondent through its legal

practitioners expressing concern at the delay by the first respondent
in the payment of the purchase money. On 23 October, the
third
respondent wrote to the first respondent demanding payment of the
money. On 27 November, the second respondent wrote again
to the
third respondent expressing its concern at the continued failure by
the first respondent to pay the money. On 3 January
2003, the
appellant, who believed that the second respondent had power to
cancel the sale, wrote to it complaining of the delay
by the first
respondent in paying the purchase money and asking that the sale be
cancelled. He copied the letter to the third
respondent.







On 20 January 2003, the second respondent’s legal practitioner
wrote to the third respondent a letter in the following terms:



“We have now received a letter from the judgment debtor requesting
that we cancel the sale. It is not up to us to cancel the
sale. The
sale was confirmed and it is within your discretion to cancel the
same in the event that there are delays in the payment
of the
purchase price by the purchaser. The purchaser has delayed in making
payment and from the look of things it does not appear
he still wants
to proceed with the sale.”







On 3 February the appellant wrote to the third respondent saying:



“It would appear … that Mr Mau Mau bidded for the property at the
auction knowing fully (sic) well that he did not have the
money with which to purchase the property but had seen an opportunity
to make money for himself
since he is now looking for a buyer to the
tune of $15 million without himself having wasted a cent towards the
property. I view
all this to be unfair and I am now seeking for a
redress with your office. I would regard it as fair if you could
cancel his sale
and re-auction the house or allow me to look for a
buyer.”







The first respondent had in fact paid the purchase money on 31
January 2003. The payment was made fourteen months after the
sale
and nine months after confirmation.







On 18 February, the appellant made the application in case no. HC
1488/03 for an order setting aside the sale on the ground that
there
had been an inordinate delay in the payment of the purchase money by
the first respondent. In paragraph 9 of the founding
affidavit he
said:



“The main reason (for the application) is basically the fact that
it has taken the first respondent an unreasonably and unduly
long
time to raise the purchase price in the sum of $2 050 000.00 (two
million and fifty thousand dollars). … By reason of
delay in
raising and paying the purchase price, the first respondent had
caused me and other interested parties considerable financial

prejudice. On my part, I did everything within my power and means to
ensure that the transfer was properly executed in favour
of the first
respondent soon after my objection was dismissed by the third
respondent. Throughout this transaction the first respondent
was
adopting a very casual attitude which can only be interpreted to mean
that he was not in a hurry to pay the purchase price
and thus, he was
effectively in breach of the contract of sale executed at the public
auction on November 30, 2001.”







The appellant also made the allegation that by failing to take
steps to cancel the sale on the ground that the first respondent
had
failed to pay the purchase price within a reasonable time, the third
respondent aided and abetted the first respondent in delaying
the
payment. In para 10 of the founding affidavit he said:



“What I find very curious is the fact that the third respondent was
literally going out of his way to assist and also to protect
the
interests of the first respondent at the expense of everyone else.
He seemed not to have done anything to expedite the payment
of the
purchase price by the first respondent. This is clearly proved by
the fact that it took the first respondent almost fourteen
(14)
months to raise and pay the purchase price from the date of the sale.
Even if one had to consider the time that the first
respondent took
to consider and to subsequently reject my objection to the sale, it
is still apparent that the first respondent
took an unreasonably long
time to raise and to pay the purchase price. It is a notorious fact
that because of the hyper-inflationary
conditions presently obtaining
in the country, I am going to considerably lose out if the sale in
favour of the fist respondent
is allowed to go through. …






The fact of the matter is that the first respondent did not play ball
and he therefore cannot and should not be allowed by this
Honourable
Court to literally have his cake and eat it. I humbly submit that
there are very good grounds for this Honourable Court
to exercise its
discretion by setting aside the public sale that was conducted on
November 30, 2001.”







He made it clear that what caused him to make the court application
was the fact of the inordinate delay by the first respondent
in
paying the purchase money. In paragraph 11 of the founding affidavit
he said:



“Had the first respondent promptly paid the purchase price to the
third respondent, then I would not have even contemplated filing
the
present court application.”







The first respondent did not deny in the opposing affidavit the
allegation that the purchase money was paid after an unreasonably

long period of time calculated from the date of the sale or its
confirmation. He averred that the application was in terms of
r
359(8) which provides that:



“Any person who is aggrieved by the Sheriff’s decision in terms
of subr (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 appellant made arrangements with the second respondent in terms
of which he paid the judgment debt. The second respondent
released
the title deed to the property into his custody. The third
respondent filed a report dated 4 March 2003. He did not
deny the
allegation that the first respondent took an unreasonably long time
to raise and pay the purchase money. He said he would
abide by the
decision of the Court in the application.







The decision made by the third respondent in terms of subr (7) of r
359 is the decision confirming the sale. The first respondent

averred in the opposing affidavit that the court application was in
term of r 359(8) and as such had to have been made within one
month
after the appellant was notified of the decision of the Sheriff. He
contended that the application was not properly before
the Court as
it was made outside the time limit. No condonation of non-compliance
with r 359(8) had been applied for and granted.







The appellant denied in the answering affidavit that the court
application was subject to any time limit. He later changed his
mind
and accepted that the application had to comply with the time limit
prescribed under r 359(8). It is then that he made the
application
for condonation in case no. HC 2596/03. In dismissing the
application the learned Judge said:



“In terms of the provisions of r 359(8) of the High Court Rules,
the applicant was supposed to lodge a court application to have
the
sale in execution of the immovable property set aside within one
month of the notification by the Sheriff of the rejection
of his
objection. The applicant became aware of the Sheriff’s decision
before 14 May 2002. Despite that knowledge the applicant
applied to
this Court only on 18 February 2003 to have the Sheriff’s decision
set aside. He was more than 9 months out of time
and did not first
seek condonation …. Regarding condonation, the applicant had been
advised albeit wrongly, by his legal practitioner
that there was no
need to seek condonation first. The first respondent specifically
raised the issue of condonation in his opposing
affidavit. However,
the applicant in his answering affidavit roundly rejected the advice
on condonation as being false, maintaining
there was no time limit
for bringing the application and proceeded to file his heads of
argument and to request a set down date.
Only after being served
with the first respondent’s heads of argument did the applicant
file the present application, now seeking
condonation.






The above series of delays and reckless disregard of the rules of
this Court constitute enough grounds to move the Court to express
its
displeasure by declining condonation even though committed by the
applicant’s chosen legal practitioners and not directly
by the
applicant himself. (See Saloojee & Anor NNO v Minister of
Community Development
1965(2) SA 135A, Kodzwa v Secretary for
Health & Anor
1999 (1) ZLR 313(S). However, the matter is
put beyond any pale of doubt when the applicant’s prospects of
success are examined.
On the merits the applicant states that the
delay by the first respondent in effecting payment constitutes good
ground for the
setting aside of the sale. This is the one and only
basis upon which the applicant seeks to have the sale in execution
set aside.
However, in my considered view, failure to pay the
purchase price timeously or at all is a matter pertaining to the
performance
of the contract of sale and not its conclusion or terms,
and thus falls outside the ambit of r 359(1). Where the purchaser
fails
to carry out obligations in a sale in execution, the Sheriff
may be moved to cause the sale to be cancelled in terms of r 357.
In
this case the payment has already been made. Therefore the
applicant’s remedy lies in establishing and pursuing a cause of

action relating to the late payment of the purchase price.”







An application for condonation is made to a Court when there has
been failure to comply properly or timeously with a rule under
which
a party is bound to act in seeking the relief from the Court. The
learned Judge proceeded on the basis that a question of
condonation
of non-compliance by the appellant with r 359(8) at the time he made
the main application to have the sale set aside
had arisen for his
determination. The assumption was that in seeking the particular
relief from the Court the appellant was bound
to act in terms of that
rule.







The appellant did not apply to Court to have the decision of the
third respondent confirming the sale in terms of subr (7) of
r 359
set aside. The main application was for an order setting aside the
sale on the ground that the purchase money was paid by
the first
respondent after an unreasonably long period of time. The ground on
which the relief was sought arose after the decision
of the third
respondent in terms of subr (7) and was a consequence of the conduct
of the first respondent. The appellant could
not make the
application for the relief he sought from the Court in terms of r
359(8) which is directed at any person who is aggrieved
by the
Sheriff’s decision in terms of subr (7). There was therefore
no question of non-compliance for the purposes of founding
an
application for condonation with a rule the appellant was not bound
to comply with in seeking the relief from the Court.







At common law any person interested in a sale in execution may
apply to Court to have it set aside on good cause shown although

Courts are reluctant to set aside a sale which has been confirmed and
even more reluctant where transfer of the immovable property
has been
effected. The law was restated by GILLESPIE J in Mortpoulos v
Zimbabwe Banking Corporation Ltd & Ors
1996(1) ZLR 626(H)
where at 628G-H the learned Judge in the course of a review of the
authorities said:



“By the common law an owner of property which has been sold in
execution but not yet transferred may seek an order of restitutio
in integrum
setting aside the sale on good cause shown











See also Mapedzamombe v Commercial Bank of Zimbabwe & Anor
1996(1) ZLR 257(S) at 260 D-E.







The right a person interested has under r 359(8) to apply to the
Court to have the decision of the Sheriff in terms of subr (7)
set
aside is in addition to the common law right to apply to the Court to
have the sale set aside before transfer of the property
on good
cause shown
.







It appears to me that the appellant was exercising the common law
right when he applied to the Court to have the sale in execution
of
his property set aside on the ground that the purchase money had been
raised and paid by the first respondent after an unreasonably
long
time.







The Court hearing the application has to decide in the exercise of
its discretion whether or not the ground on which the application
was
made is a good cause for setting aside the sale. In arriving at that
decision the Court would take into account all the relevant

circumstances of the case including the failure by the third
respondent to act in terms of r 357; the attitudes of the second and

third respondents to the application; and the fact that transfer of
the property has not been effected.







It was a misdirection on the part of the court a quo to
consider the prospects of success of the main application when no
question of condonation of non-compliance with r 359(8) had
in fact
arisen notwithstanding the application made to it. The learned Judge
should have heard and determined the main application.
He should now
do so.







In the result, the appeal succeeds with costs. The judgment of the
court a quo is set aside and substituted with the following
order -



“The matter is struck off the roll with costs.”



















SANDURA JA: I agree.



















GARWE JA: I agree.



















Gutu & Associates, appellant’s legal practitioners



Kamusasa & Company, first respondent’s legal
practitioners