Mubeen Ismail and Shireem Ismail v Shepherd Gwasira and The Additional Sheriff, Mutare N.O

### Preamble
1
HH 513-18
HC 7721/18
---------


MUBEEN ISMAIL

and

SHIREEM ISMAIL

versus

SHEPHERD GWASIRA

and

THE ADDITIONAL SHERIFF, MUTARE N.O

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 28 August 2018, 3 & 6 September 2018

Urgent Chamber Application

L. Chigadza, for the applicant

G. Majirija, for the 1st respondent

No appearance for the 2nd respondent

CHIKOWERO J: There was only one applicant before me.

Despite the citation of Shireem Ismail as the second applicant, it was common cause that she was not before me. The application was filed on 23 August 2018. Shireem Ismail died on 10 November 2016 at Rusape. May her soul rest in eternal peace.

After hearing argument on 3 September 2018 I dismissed the application with costs.

These are my reasons.

This is an urgent chamber application for stay of eviction pending determination of an application for rescission of default judgment.

The background is as follows.

On 15 June 2015 Mubeen Ismail and Shireem Ismail, under case number HC 5583/15, filed a court application for review.

The respondents were the Sheriff of Zimbabwe, Shepherd Gwasira (hereinafter referred to as “Shepherd”) and CBZ Bank Limited.

HC 5583/15 was a court application for review of the Sheriff’s decision confirming the sale of stand 571 Jacaranda Drive, Rusape to Shepherd.

The Ismails contended that the purchase price in the sum of US$30 000-00, was ridiculously low. They therefore moved for the setting aside of the sale.

Opposing papers were duly filed by the purchaser.

Heads of Argument were not filed. The matter was not set down for hearing. The matter remains pending.

In fact, it was overtaken by events. Transfer was effected in favour of the purchaser on 18 February 2016.

Further, Shepherd counter-applied for the eviction of the Ismails.

The eviction order was granted by Tagu J, in default, on 25 July 2018.

The Ismails, although represented by the legal firm of M.C Mukome, had not filed any opposing papers.

Before this the Ismails had, on 26 February 2016, filed an urgent chamber application for stay of eviction.

The basis of the application was that there was no court order sanctioning such eviction. Another ground was that transfer had not yet been effected in favour of Shepherd.

By consent, a provisional order for stay of eviction was granted by Mtshiya J on 8 March 2016.

To complete the background picture, the Ismails (I note in passing that only Mubeen should have been cited as applicant because Shireem passed on 10 November 2016) filed a court application for rescission of the Tagu J default judgment of 25 July 2018.

The application for rescission of default judgment was filed on 23 August 2018. It is still pending.

Mr Chigadza urged me to grant an order for stay of eviction pending determination of the application for rescission of default judgment.

He submitted that the pendency of the court application for review means that Shepherd’s title to stand 571 Jacaranda Drive Rusape is being challenged.

It was his view that transfer of title ought not to have been passed in favour of Shepherd before the court application for review of the Sheriff’s decision confirming the sale had been determined by this court.

His submission was that that court application, taken together with the 2016 provisional order for stay of eviction sufficed to constitute a prima facie right of applicant’s occupancy, though open to doubt.

He referred me to the following decision: Cumming v Cumming 1984 (4) SA 589.

I do not quarrel with his submissions that it was in those cases pointed out that a title deed is prima facie evidence of ownership of immovable property. I am also alive to the settled legal position that the onus is on the person challenging the title to satisfy the court why the title deed should be set aside.

However, the cases cited are not material to the resolution of this matter.

It was accepted at the hearing that the applicant has not filed any court proceedings challenging Shepherd’s title and seeking an order to have the current title deed set aside.

It may very well be that applicant ought also to have filed either an urgent chamber or court application for an interdict staying transfer of title in favour of Shepherd at the time that he filed the court application for review of the Sheriff’s decision confirming the sale.

As things stand, it appears to me that applicant is seeking to close the door when the horses have already bolted out of the stable.

Two factors stand in the path of the application. One is the transfer of title effected in favour of Shepherd. The second is the extant eviction order granted by this court.

In so far as the present application is concerned, the odds are heavily stacked against the applicant. He does not have a prima facie right, though open to doubt.

In other words, he does not have any legal right to remain in occupation of Shepherd’s property. His case fails at the first hurdle vis-a-vis the requirements of an interim interdict.

I had drawn Mr Chigadza’s attention to the cases of Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S) and Chiwanza v Matanda & Ors 2004 (2) ZLR 203 (H). This was on 28 August 2018. I asked him whether the applicant wished to proceed with the application in light of those decisions.

He asked for a postponement to 3 September 2018 to enable the applicant to reconsider its position.

At the hearing proper on the 3rd September 2018 first respondent’s counsel submitted that as title was passed in favour of first respondent and there were no court proceedings challenging that title there was therefore no basis for resisting the eviction. He referred the court to the matter of Twin Wire Agencies (Pvt) Ltd v CABS 2005 (2) ZLR 34 (S).

I agree that the pending application for rescission of judgment as well as the court application for review, also pending, do not at all amount to a challenge of first respondent’s ownership of the property in question. Applicant is not entitled to occupy first respondent’s property.

The legal matrix is set out in Mapedzamombe v Commercial Bank of Zimbabwe and Anor (supra) at 260 D – 261 A where Gubbay CJ (as he then was) put it thus:

“Before a sale is confirmed in terms of r 360, it is a conditional sale and any interested party may apply to court for it to be set aside. At that stage, even though the Court has a discretion to set aside the sale in certain circumstances, it will not readily do so: See Lalla v Bhura supra at 283A-B. Once confirmed by the Sheriff in compliance with rule 360, the sale of the property is no 	longer conditional.  That being so, a Court would be even more reluctant to set aside the sale pursuant  to an application in terms of r 359 for it to do so: See Naran v Midlands Chemical Industries (Pvt) Ltd S220/91 (not reported) at pp 6-7. When the sale of the property not only has been properly confirmed by the Sheriff but transfer effected by him to the purchaser against 	payment of the purchase price, any application to set aside the transfer falls outside r 359 and 	must conform strictly with the principles of the common law. This is the insurmountable difficulty which now besets the appellant. The features urged on his behalf, such as the 	unreasonably low price obtained at the public auction and his prospects of being able to settle the judgment debt without there being the necessity to deprive him of his home, even if they could be 	accepted as cogent, are of no relevance. This is because under common law immovable property sold by judicial decree after transfer has been passed cannot be impeached in the absence of an 	allegation of bad faith, or knowledge of the prior irregularities in the sale of execution, or fraud: See Sookaleyi and others v Sahadeo and Others 1952 (4) SA 568 (A) at 571 H – 572A; Gibson NO v Iscor Housing Utility Co Ltd and others 1963 (3) SA 783 (T) at 787A – B; Maponga v 	Jabangwe 1983 (2) ZLR 395 (S) at 396 D – E; Van den Berg v Transkei Development Corporation 1991 (4) SA 78, (TKG) at 80G – J; Erasmus v Michael James (Pty) Ltd 1994 (2) SA 	528 (C) at 552 F.

This principle of the common law has been codified in section 70 of the South African 	Magistrates Court Act of 1944, but not in the comparable Zimbabwean Act or Rules.”

In the circumstances, the above constitute the reasons why l dismissed the urgent chamber application, with costs.

Chigadza and Associates, applicant’s legal practitioners

B Matanga IP Attorneys, first respondent’s legal practitioners