Amiel Matindike v Duffy Mitchelle Property Investments (Pvt) Ltd T/A K. M. Auctions and The Sheriff of Zimbabwe

In 2012, the first respondent conducted an auction sale of immovable properties at the instructions of the second respondent (Sheriff of Zimbabwe) in execution of court judgments. Two properties were auctioned: stand number 163 Philadelphia Township (Sale No. 1) and stand 23 Carrick Crescent Hellensvale, Borrowdale, Harare (Sale No. 22). The applicant was the highest bidder for both properties at $192,400.00 and $12,150.00 respectively. As required, the applicant paid 10% deposits totaling $19,240.00 and $1,215.00 to the first respondent (auctioneer) before confirmation of the sales. The second respondent did not confirm either sale: Sale No. 1 because the highest bid was lower than the forced sale value, and Sale No. 22 because the judgment debtor's legal practitioners objected. The Sheriff directed the first respondent by letters dated 17 October 2012, 27 November 2012, and 6 December 2012 to refund the applicant all monies paid including commission. The first respondent refused to refund the money. The applicant then issued summons claiming a refund of the deposits paid. The applicant subsequently applied for summary judgment.

• Whether the applicant had an unanswerable claim entitling him to summary judgment
• Whether the first respondent had a bona fide defence to the claim for refund
• Whether an auctioneer is entitled to commission when a sale does not proceed to confirmation
• Whether an answering affidavit may be filed in a summary judgment application without leave of the court
• Whether costs on a legal practitioner-client scale were warranted

Summary judgment was granted in favor of the applicant. The first respondent was ordered to refund the applicant all monies paid. Costs were awarded on a legal practitioner-client scale.

An auctioneer is only entitled to commission upon the property being sold. Where a sale by public auction is conducted pursuant to a court judgment and the Sheriff cancels the sale before confirmation, the auctioneer is not entitled to retain deposits paid by the highest bidder as commission. In summary judgment applications, an applicant/plaintiff must still obtain leave of the court before filing an answering affidavit in terms of Rule 67(c) of the High Court Rules - the recommendation in Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd has not resulted in an amendment of the rule. To resist summary judgment, a defendant must raise a defence that amounts to a defence at law and is bona fide; bald allegations without supporting documentary evidence are insufficient to discharge this onus.

The court observed that it would have been helpful if the first respondent's counsel had attached the Sheriff's document setting out the conditions of sale rather than making submissions from the bar without documentary support, noting that such submissions essentially amounted to leading evidence from the bar. The court also commented that it did not make sense that the Sheriff would contradict his own standard conditions by instructing the first respondent to refund the applicant. The court expressed agreement with the principle that bald allegations and figures should be discouraged in summary judgment applications, citing Time Bank of Zimbabwe Ltd v Culroy Farm (Pvt) Ltd & Others.

This case clarifies important principles in Zimbabwean law regarding: (1) the entitlement of auctioneers to commission in aborted sales, confirming that commission is only payable upon successful completion of a sale; (2) the procedural requirements for summary judgment applications, particularly that Rule 67(c) still requires court leave before filing an answering affidavit despite recommendations for amendment; (3) the standard required for a defendant to resist summary judgment - defendants must provide documentary evidence and not merely bald allegations to establish a bona fide defence; and (4) the application of High Court Rules to Sheriff's sales conducted by auctioneers. The case reinforces that submissions from the bar without supporting documentary evidence are insufficient to establish a defence in summary judgment applications.