Bernard Nyajeka v Fidelity Life Financial Services (Pvt) Ltd and Messenger of Court

The plaintiff and his wife, Sheila Tumani Nyajeka, owned immovable property as joint owners with undivided 50% shares each - stand number 2565 Glen Lorne Township measuring 5772 square metres. The first defendant obtained a judgment against the plaintiff's wife only. The first defendant issued a writ of execution for attachment of the wife's 50% undivided share. However, the entire property (including the plaintiff's 50% share) was advertised for sale and subsequently sold for US$86,000. The plaintiff did not consent to or authorize the sale of his share. After the sale, the second defendant (Messenger of Court) telephoned the plaintiff and told him to collect his share of the proceeds or it would be deposited into a government fund. The plaintiff received US$38,700 representing his share of the sale proceeds. The first defendant's legal practitioners were aware the plaintiff's share had not been attached, yet they acted as conveyancers and transferred the whole property to the purchaser. The property's open market value was valued at US$180,000 as at 26 November 2018.

• Whether the sale of the plaintiff's 50% undivided share in the property was wrongful
• Whether the plaintiff accepted the sale of his share thereby waiving his rights by accepting payment of US$38,700
• Whether the defendants are liable to the plaintiff for damages and if so, whether jointly and severally
• The quantum of damages owed to the plaintiff

Judgment granted in favor of the plaintiff against the first and second defendants jointly and severally, the one paying the other to be absolved, for: (a) payment of ZW$51,300.00; (b) interest on ZW$51,300 from the date of summons to date of full payment; and (c) costs of suit on the ordinary scale.

The binding legal principles established are: (1) The sale of property in execution without legal basis or the owner's consent is per se wrongful; (2) A judgment creditor whose legal practitioners act as conveyancers is vicariously liable for wrongful transfer of property they knew was not validly attached; (3) A Messenger of Court who executes beyond the scope of a writ of execution acts wrongfully and is liable for resulting damages; (4) There is a presumption against waiver of rights, and the onus to prove waiver rests on the party alleging it; (5) Acceptance of proceeds from a wrongful sale to mitigate damages does not constitute waiver of the right to claim the difference between forced sale value and market value, particularly where the plaintiff acts promptly to claim damages; (6) Where multiple parties contribute to a wrongful sale through their respective wrongful acts, they are jointly and severally liable for the damages; (7) In assessing damages for wrongful sale of property, the relevant date for valuation is the date closest to when the loss occurred, not a later revaluation date in a different currency.

The court made obiter observations that: (1) The conduct of the defendants was "reprehensible" and would have warranted special costs orders if the plaintiff had sought them; (2) The office of Messenger of Court is one of such importance that it demands diligent conduct to avoid loss to third parties; (3) Mathematical exactitude can never be realized in valuation reports; (4) There is no legal requirement that a valuation report must contain upper and lower limits of market value; (5) The forced sale value is irrelevant where property was not validly attached in execution; (6) It is unacceptable for a Messenger of Court to advertise a whole property for sale but then announce on the day of sale that only a portion is being sold when potential purchasers are already in attendance.

This case is significant in Zimbabwean law (which shares common law principles with South African law) as it establishes important principles regarding: (1) the liability of execution creditors and messengers of court for wrongful sales in execution beyond the scope of attachment; (2) the standard of care required from messengers of court in executing writs; (3) vicarious liability of judgment creditors for the conduct of their legal practitioners who act as conveyancers in execution sales; (4) the application of the presumption against waiver of rights in property law; (5) mitigation of damages not constituting acceptance of wrongful conduct; and (6) joint and several liability for wrongful conduct in execution proceedings. It demonstrates the court's willingness to hold both judgment creditors and court officers accountable for irregularities in execution proceedings that result in loss to innocent third parties.