Collins Kabaira v Mr Madega N.O. and Nelhurst Trading (Private) Limited and Mr and Mrs S Mahlangu

In 2012, the 2nd respondent obtained a default judgment against the applicant for $80,000. A writ of execution was issued and the applicant's property at No. 421 Lockerby Close, Borrowdale, Harare was sold to the 3rd respondent for $270,500 on 20 November 2012. The property was registered in the name of Cokasa Leads (Private) Limited. The 1st respondent (Sheriff) confirmed the sale by letter dated 12 April 2013. The applicant had previously challenged the sale in HC 3680/13, HC 2927/14 and HC 6039/17, but those applications were dismissed for want of prosecution. Following an order on 3 March 2020 condoning late filing, the applicant filed this review application on 23 March 2020 seeking to review and set aside the Sheriff's confirmation of the sale.

• Whether the applicant had locus standi to bring the review application despite not being the registered owner of the property
• Whether the application was fatally defective in the absence of a prior objection to the Sheriff under Rule 359(1) of the High Court Rules
• Whether the applicant could rely on Rule 359 grounds after confirmation and transfer of the property to a third party
• Whether the application was filed timeously and whether condonation was required
• Whether proper grounds for review had been pleaded

The application was struck off the roll with costs.

A review application under Rule 359(8) of the High Court Rules can only be brought where there has been a prior objection to the Sheriff under Rule 359(1) and a subsequent decision by the Sheriff under Rule 359(7). Without following this mandatory procedural sequence, an application purporting to review the Sheriff's confirmation of a sale is fatally defective. Once property has been transferred to a third party following a sale in execution, the sale cannot be challenged on Rule 359 grounds but only at common law on the basis of bad faith, knowledge of prior irregularities, or fraud. An applicant must clearly plead the proper grounds for review, whether under Rule 359, sections 26-27 of the High Court Act, or at common law.

The court noted that Rules 359(1) and 359(8) confer standing on "any person who has an interest" or is "aggrieved" without limiting this to registered owners. The court also observed that the proviso to Rule 359(2) permits the Sheriff to accept late objections if good cause is shown, but the applicant failed to utilize this remedy. The court referenced the requirement in Order 33 r. 257 (now Rule 257) that review applications must "state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside," noting this is "not an idle requirement" but ensures applicants properly consider their grounds for review.

This case clarifies the procedural requirements for challenging a Sheriff's sale in execution under Rule 359 of the High Court Rules in Zimbabwe. It establishes that while an "interested person" has standing to object without being the registered owner, there is a mandatory procedural sequence that must be followed: (1) objection to the Sheriff under Rule 359(1); (2) Sheriff's decision under Rule 359(7); and (3) only then can a review application be filed under Rule 359(8). The case reinforces that once property has been transferred to a third party, the Rule 359 procedure is no longer available, and challenges can only be brought at common law on limited grounds of bad faith, knowledge of irregularities, or fraud. The judgment emphasizes the importance of properly pleading grounds for review and following the correct procedural pathway.