Naome Thakataka and Auction Intermarket Floor Limited and Joseph Simon Thakataka v The Sheriff of Zimbabwe and Solusi University and Mohammed Z. Patel

HB 148/22
HC 1664/18


NAOME THAKATAKA

And

AUCTION INTERMARKET FLOOR LIMITED

And

JOSEPH SIMON THAKATAKA

Versus

THE SHERIFF OF ZIMBABWE

And

SOLUSI UNIVERSITY

And

MOHAMMED Z. PATEL

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 28 OCTOBER 2019 & 9 JUNE 2022

Court Application

1st and 3rd applicants in person

Mr J Tshuma for the 2nd respondent

MABHIKWA J: 	This is an application which the applicants made apparently in terms of Order 40 Rule 359 (8) as read with Rule 359 (9) of the High Court Rules, 1971.  The relevant rules read;

“359 (8) Any person who is aggrieved by the Sheriff’s decision in terms of sub-rule (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.”

“359 (9) In an application in terms of sub-rule (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.” (underlying  is mine).

The procedure provided for by Rule 359 (8) is therefore one for review.  Anyone willing to challenge the Sheriff’s decision to accept a bid has to first file objections with the Sheriff challenging the sale.  If, after hearing, the Sheriff confirms the sale and the objector is aggrieved by that outcome, then the objector is entitled thereafter to approach this court in terms of rule 359 (8).  However, this court will exercise its review power in terms of that section sparingly and only where it has been shown that there is a reviewable decision.  It is not an objection as insinuated on paragraph (7) of the 1st applicant’s founding affidavit.

The background of this matter is that  2nd respondent obtained an order against the 2nd applicant for payment of the sum of USD 29 920.65.  Pursuant thereto, 2nd respondent obtained an order in terms of section 318 of the Companies Act, effectively rendering the 1st and 2nd applicants personally liable and indebted to 2nd respondent in their capacity as directors of the 2nd applicant company.  Following that court order, 2nd respondent engaged the 1st respondent for the attachment of the 2nd applicant’s movable property.  The property was sold in execution on 23 March 2018 and the sale was confirmed the sale on 31 May 2018.  A notice to the Secretary Responsible for National Housing was sent on 12 March 2018.  There had been no response to a chamber application received by the 1st respondent at the time of sale on 23 March 2018.  The applicants filed a two-fold objection.  The first was that the 1st respondent had not complied with the provisions of rule 348 of the High Court Rules.  Secondly, the applicants complained that 1st respondent had sold the property for an unreasonably low price.  After the hearing of the objection, 1st respondent dismissed the objection.  The applicants then filed the present application.

The issues for determination in this application are exactly as they were before the 1st respondent at objection stage;

1.	Whether or not in selling the property in question, the Sheriff complied with the provisions of Rule 348 of the court rules.

2.	Whether or not the property was sold for an unreasonably low price.

At the hearing, the 1st and 3rd applicants appeared in person for all 3 applicants and relied on the Heads of Argument and other application papers filed on their behalf by Mr Nkomo of Messrs Mathonsi Ncube Law Chambers.  The 2nd respondent was legally represented by Mr J. Tshuma of Messrs Webb, Low and Barry Legal Practitioners Inc. Ben, Baron & Partners.  Save for a few additions and clarifications to motive his Heads, Mr Tshuma largely relied on his Heads of Argument and other papers filed of record.

In the main, the applicant argued that the Sheriff had not complied with Rule 348 A of the High Court Rules.  They argue that the 2nd respondent, upon attachment of their property was obliged forthwith, to write a notice to the Secretary Responsible for Housing indicating that a dwelling had been attached and was to be sold in execution in terms of rule 348, the immovable property attached must be a dwelling and should not have been mortgaged.

The applicants further contend that it is clear from a reading of the rules that the sale of the immovable property is subject to compliance with rule 348 which in effect states that:-

“(a)  a written notification forthwith by the Sheriff to the Secretary that a dwelling has been attached in terms of the order and is to be sold in execution.

(b)	Secondly, the Sheriff shall also send all documents and particulars relating thereto and shall take no further steps in regard to the sale of the dwelling or the eviction of the occupants for a period of ten (10) days.”

Applicants correctly pointed out that in compliance with rule 348 A, the Sheriff served the Notice on the Secretary of Housing at Mhlahlandlela Government Complex in Bulawayo on 12 March 2018.  They however allege that the property was sold before the lapse of the ten (10) day period envisaged in the rules from the date of service of the notice on the Secretary.  Further, they alleged that the notice should have been served on the Secretary of Housing or a responsible person at the Secretary’s Harare address not at Mhlahlandlela Government Complex in Bulawayo.  I assume that when applicants referred to the sale having taking place less than the ten (10) stipulated days they were referring to Order 1 Rule of the High Court Rules.  However, the Notice and other documents sent to the Secretary in terms of rule 348 A should be in respect of a dwelling house.  A “dwelling” should be a building or part of a building including a flat, which is designed as a dwelling for a single family as defined in rule 348 A (i).  The 2nd respondent has conveniently not specifically described and argued that the property in question is a dwelling.

Intention of Rules 359 (8) as read with Rule 359 (9) of the High Court Rules, 1971.

I am convinced and inclined to agree with the 2nd respondent that the above two rules provide a review procedure as interpreted by the court in Tallspring Investments (Pvt) Ltd & Anor v The Sheriff & Ors HH 889/15 at page 5 of the cyclostyled judgment where it is stated that:-

“The procedure provided for in rule 359 (8) in a review procedure.  A person wishing to challenge a decision of the Sheriff to accept a bid is required to first challenge the sale by filing objections with the Sheriff.  Where the Sheriff after hearing the objections filed confirms the sale and the objector is aggrieved by that decision or outcome, he is entitled at that stage to approach the court for redress in terms of rule 359 (8) to set aside the sale.  Rule 359 (8) provides for a review mechanism.  This court will only exercise its review powers of rule 359 (8) where it has been shown that there is a decision sought to be reviewed.”

And also in Nyandinu & Anor v Barclays Bank HH 135-16 where the court held that where the Sheriff dismissed an objection and confirmed a sale, a party aggrieved by that decision may apply to this court in terms of rule 359 (8) for the setting aside of the Sheriff’s decision.  The court further pointed out that the procedure envisaged by rule 359 (8) is that of a review of the Sheriff’s decision by this court.  The court is required to look at the objections raised and then test the decision of the Sheriff.  The rule 359 (8) limits the grounds upon the application to this court may be brought to those grounds raised as objections in terms of rule 359 (1).

I am satisfied that the applicant has not put forward any grounds, particularly irregularity and reviewable reasonable grounds upon which the Sheriff’s decision to dismiss the objection may or should be reviewed.

The applicants apparently regurgitated the exact same objections they made to the Sheriff and now ask this court to substitute the decision of the Sheriff with that of its own.  It appears to me that it was not the intention of rule 359 (8) to simply duplicate proceedings in that manner.  The applicants should raise valid procedural irregularities or substantive and valid grounds of review.  The court would then be at large to confirm, vary or set aside the Sheriff’s decision or make any such other order as it considers appropriate in the circumstances.

In the result, the application is hereby dismissed with costs.

Webb, Low & Barry Inc Ben Baron & Partners, 2nd respondent’s Legal Practitioners