Emmanuel James Rensburg and Kennedy Ngirazi and Nan Jiang Mine (Private) Limited and Megamania Auctioneers and Sheriff of the High Court N.O

### Preamble
1
HMT 49-20
HC 40/20
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EMMANUEL JAMES RENSBURG

and

KENNEDY NGIRAZI

and

NAN JIANG MINE (PRIVATE) LIMITED

and

MEGAMANIA AUCTIONEERS

and

SHERRIFF OF THE HIGH COURT N.O

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 6 July 2020 and 23 July 2020

Opposed Application

T Zhuwarara, for the Applicant

S Chabuka, for the Respondents

MUZENDA J: On 7 February 2020, Mr Emmanuel James Rensburg (applicant) caused an application to be issued for a declaratory order against all the four respondents seeking the following ruling:

“IT IS ORDERED THAT

The application for a Declaratory Order succeeds.

The Applicant is hereby declared the rightful owner of a Cat Caterpillar Dump Truck, 769 C sold in execution on 18 October 2019 at Devuli Farm Devuli Range, Bikita.

The first Respondent is hereby ordered, within 24 hours of this order, to transport at his costs the Cat Caterpillar Dump Truck 796C from No. 52B Plymouth Road Southerton Harare to Lot 2 Gweru Small Holding Gweru.

The first and second Respondents bear the costs of this application, on Legal Practitioner and client scale.”

First and second Respondents are opposing the application. The fourth Respondent wrote to the Registrar on 29 June 2020, indicating that he shall abide by the decision of the court. The third Respondent did not file any papers.

BACKGROUND OF THE MATTER

The brief synopsis of the matter are spelt out by the letter written to the Registrar by the fourth Respondent and the events unfolded thus:

The Sheriff was instructed by Messrs Chihambakwe, Mutizwa and Partners Legal Practitioners representing Zimbabwe Electricity Transmission and Distribution Company (ZETDC) to execute a court order under case No. 5641/17 to recover a judgment debt of $28284.50, interest and costs including the Sheriffs costs of $180 against Nan Jiang Mine, the second Respondent herein.

Attachment of goods was done on 5 of June 2019.

The Sheriff received instructions to stay execution from Chihambakwe Mtizwa and Partners on 18 June 2019.

On the third of September 2019 the Sheriff received further instructions from Chihambakwe Mtizwa and Partners to proceed with execution.

The Sheriff in turn instructed Megamania Auctioneers (third Respondent) to advertise the attached goods on 8 October 2019.

The sale in execution was then conducted on 18 October 2019. Among the sold goods was the Cat Caterpillar Dump Truck in dispute sold to the applicant herein.

On 30 October 2019 the Sheriff received instructions from Chihambakwe Mtizwa and Partners to suspend the sale and release the attached goods since the judgment debtor was said to have settled the judgment debt in full. The Sheriff wrote to the lawyers on 31 October 2019 advising them that the sale in execution had already been duly conducted on 18 October 2019. On the same date (31 October 2019) the Sheriff received an e-mail from the instructing attorneys advising the Sheriff to forward the sale proceeds as the lawyers alleged that the second Respondent herein had not been truthful.

Sale proceeds amounting to $96 338.73 were received from third Respondent, $30 405.98 was paid to the instructing attorneys, a balance of $63 958.48 was retained by the Sheriff. Upon acquiring about the accounting details of the judgment debtor, in order to deposit the residue held in the Sheriff’s trust account, the judgment debtor, the second Respondent refused to furnish the bank details.

The Sheriff conducted the sale and was not involved in the removal of the Dump Truck from the auction sale site.

The Applicant points out in his founding affidavit to the application that sometime in October 2019 he learnt about the advert in the Manica Post that there will be a public auction of various movables on 18 October 2019 to be conducted at the instance of the Sheriff. He became interested in the cat Caterpillar Dump Truck. On 17 October 2019 he visited the auction site for inspection and view. He was satisfied with the Truck’s condition. He proceeded to pay a deposit of $5000 and participating fee of $50-00 and obtained a bidding card. On 18 October 2019 he attended the auction and was declared the highest bidder. He paid the purchase price of $141 500-00 and obtained a receipt from the third respondent. On the third of November 2019 he went back to collect the Dump truck from Bikita and learnt that the first Respondent had removed it and taken it away. He filed a complaint with the police and later on proceeded to lodge the current application to recover the truck.

The first and second Respondents on the other hand contend that when they received information about the pending auction, they made arrangements to offset the debt and ancillary costs due to the judgment Creditor and the Sheriff. They settled the whole debt on 18 October 2019 and the judgment creditor’s attorneys at law instructed the Sheriff to revoke the writ of execution. According to first and second Respondents once the power to execute was revoked, the whole execution was null and void and the authority of the Sheriff to continue with the sale was null and void. The basis of the applicant for a declaratory order flowing from the public auction hence was futile, they argued in their opposing affidavits. To the first and second Respondent they had all the rights to retrieve the Dump Truck for it was putatively sold. They pray for the dismissal of the application.

POINTS IN LIMINE RAISED

I will conveniently start with the points in limine raised herein. The second Respondent raised preliminary points:

“1.   	That applicant cited a wrong entity the second Respondent. According to the        second Respondent there is no legal entity like Nan Jiang Mine (Private) Limited. The   correct legal entity is Nan Jiang Africa Resources Private Limited. The same goes for   the address cited by the applicant. It is the contention by the second Respondent that the entire process is at war with the rules of this court.

2.  	The second point in limine is that there are material disputes of fact and as such motion proceedings do not apply. The applicant was aware that the sale had been suspended or withdrawn. Applicant also made an error in not joining the judgment creditor, second applicant submitted. These issues to the second Respondent cannot satisfactorily be determined without leading oral evidence and that would lead to injustice. (On these was also an attempt by the first and second Respondent to have the matter withdrawn because there is reference of Harare on the papers. Mr Chabuka later on abandoned the argument. I will not dwell on that there is no prejudice on the Respondents and the issue is but a technical one).

3.   	Second Respondent adds that the application was not signed by the applicant or its legal representatives and as such does not conform to the rules of this court. The non-compliance is fatal and the application ought to fail.”

In response to the preliminary points the applicant submitted that the nomenclature of second Respondent in the current proceedings originates from an order of court and attendant notices on the media preceding the attachment and public auction. The citation, applicant contends does not prejudice the second Respondent in any way. On the aspect of material disputes of fact the applicant’s argument is that no such disputes exist, they are just brought in to derail the court application. The application brought by the applicant is properly before the court, applicant stated. On the aspect of the applicant or his legal practitioner not appending signatures on the face of the application, applicant submitted that the application filed of record is properly signed and hence the objection is baseless. Applicant contends that the preliminary points be dismissed.

I have looked at the arguments of both parties on the points in limine and conclude that the three points are baseless. There is a valid court order citing second Respondent as it is in this application and the second Respondent does not bemoan that at all. I agree with the applicant’s counsel that assuming there is a misnomer on the name, there is no prejudice on the part of the second Respondent. Second Respondent perceives that there are material disputes of fact which should have required applicant to proceed by way of action. The issue for determination as will be ratified below is whether the sale was validly carried out or not. The so-called material disputes of fact in my view are grossly imagined more particularly when they are juxtaposed to the legal issues applicable herein. The second respondent impugns the application for failure by the applicant to sign a copy of the application served on it. It may be true, though unlikely that second Respondent’s copy was not signed by the applicant, such a copy was not attached to the second Respondent’s opposing papers. In any case the relevant copy is that filed of record at the commencement of the proceedings. If one is allowed to raise spurious allegations relating to copies served on the other party one would go to the extent of removing pages from his or her copy so as to challenge the propriety of the bundles of documents on applicant’s files in order to frustrate the applicant. I examined the application before the court, the court’s copy is properly signed by applicant’s legal practitioners in compliance with the rules of this court. Accordingly all the three preliminary points have no merit and they are dismissed.

The central issue for determination in this application epitomises on the validity of the public auction sale. The corollary question for determination is whether the payment of the debt by the Respondents to the judgment Creditors legally affected the sale of 18 October 2019? The Respondents argued that once payment was done to Messrs Chihambakwe Mutizwa and Partners, the power of the Sheriff was paralysed, the whole process of advertising the auction, appointing an auctioneer and the eventual sale of the Dump Truck became a nullity. On the other hand the applicant contends that he went through all the vigorous requirements expected of a purchaser in buying the Dump Truck at an auction and the moment he paid the full purchase price, he became the legal owner of the subject property and he must be declared so by this court.

The synopsis of the events encapsulated herein above clearly shows that the Respondents took the law into their hands on the false assumptions that Messrs Chihambakwe Mutizwa and Partners had indicated to the Respondents that the sale would be called off. It is not controverted by the Respondents that they effected payments on 18 October 2019, the very day of the sale. The Sheriff paid $30 405-98 to the judgment creditor from the proceeds of the sale which amount reflects the capital debt on the writ together with costs and interest. I can safely conclude that the purported settlement of the debt to Chihambakwe Mutizwa and Partners did not materialise, otherwise why would the Judgment Creditor receive a “second” payment if the Respondents had paid in full and final settlement? In any case the reason the Judgment Creditor requested the Sheriff to deposit the money was that the Respondents “had been untruthful”. One could say that the Respondents did not honour their pledge to pay the debt and the debt was settled by payment of proceeds from the auction sale. For the Sheriff to do so the applicant had fully paid and property became his in lieu of the purchase price. I conclude therefore that the correspondence of the alleged settlement of the debt by Respondents (first and second) was only received by the Sheriff on 30 October 2019, twelve days after the sale. Even if payment could have been done, an execution can only be stopped if a writ of execution is withdrawn in terms of Rule 327 (1) of the High Court Rules. The writ of execution authorising the fourth Respondent to sell in this case was never withdrawn even up to this date. It remains extant. A letter written by a Judgment Creditor to suspend the extension does not amount to a withdrawal. In my view the first and second Respondents should have used the Judgment Creditor’s letter to apply for a court order forestalling the execution or having it totally withdrawn. In any case as it turned out subsequently the money from the applicant settled the debt not money paid by the first and second Respondent. There was as such no legal basis to have the writ withdrawn. Where due process had been followed and execution properly conducted as in this case courts will not really interfere with judicial sales in execution. Such a sale vests in the purchaser’s rights which would be difficult to reverse. At the time the auctioneer declared that applicant was the highest bidder and clothed by the payment of the consideration, the applicant became the lawful and undisputed owner of the Caterpillar Dump Truck 769C, to do otherwise would fundamentally undermine the public confidence in judicial process of execution.  The first Respondent erred in reclaiming the Dump Truck, it has long been held that movable property sold by judicial sale cannot be reclaimed by the owner.First Respondent’s right of ownership was extinguished over the property when it was sold at a judicial auction. The applicant must be allowed to enjoy rights acquired over the property he purchased. I fail to see the logic of first and second Respondents’ argument criticising the public auction. It is the conduct of the respondents which calls for reproach. The first respondent was informed that the Dump Truck had been purchased at an auction yet he proceeded to remove it from site without a court order. Obviously he was under the false belief that the sale was a nullity but he should have sought legal advice on that and follow the prescribed legal process before resorting to self-help.

The applicant has met the requirements of an application for a declaratur and the first and second Respondents have no basis to challenge the sale which led the applicant to be declared the highest bidder. The applicant has lost money in driving to Bikita to collect the truck and the equitable order is that first Respondent at his own costs transport the Dump Truck from Harare to Gweru at the address specified in the Draft Order. The conduct of first and second Respondents in this matter in opposing the application where they squarely knew that they are wrong should be visited by costs on attorney – client scale.

Wherefore the following order is granted:

The application for a declaratur order succeeds.

The Applicant is hereby declared the rightful owner of a Cat Caterpillar Dump Truck 769 C sold in execution on 18 October 2019 at Devuli Farm Devuli Range Bikita.

Consequently

The first Respondent is hereby ordered, within 24 hours of this order, to transport at his cost the Cat Caterpillar Dump Truck 769 C from No. 52B Plymouth Road, Southerton Harare to Lot 2 Gweru Small Holding, Gweru.

The first and second Respondents bear the costs of this application on Legal Practitioner and client scale.

Kwiriwiri Law Chambers, applicant’s legal practitioners

Magaya-Mandizvidza, first and second respondents’ legal practitioners