Cornelio Sunduza and Yvonne Sunduza v The Additional Sheriff of the High Court in Bulawayo and Others

On 20 September 2010, a court order was granted in favour of the 2nd respondent (Multiridge Finance) against the applicants in case HC 3189/10, declaring the applicants' property (Stand No. 30 Sunninghill Township 2 of Entabeni of Willsgrove, Bulawayo) executable. A writ of execution was issued on 12 October 2010. The property was subsequently sold at public auction to the 3rd respondent (Nappon Investments) for $60,000 as the highest bid. The 1st applicant filed an objection to confirmation of the sale on three grounds: (1) the price was unreasonably low compared to a valuation of $160,000; (2) the plaintiff was under liquidation and lacked authority to sell; and (3) proceedings were underway to have the debt assumed under a ZAMCO government facility. The Sheriff (1st respondent) dismissed the objection in a six-page ruling on 7 September 2018 (amended 3 October 2018). The applicants then filed an application under Order 40 Rule 359(8) seeking to set aside the confirmed sale and for leave to accept an alternative offer of $100,000.

• Whether the applicants' application was filed timeously in terms of Order 40 Rule 359(8) of the High Court Rules
• Whether the Sheriff erred in dismissing the objection to confirmation of the sale in execution
• Whether the sale price of $60,000 was unreasonably low warranting setting aside of the sale
• What evidence is required to establish that a sale in execution was conducted at an unreasonably low price
• The appropriate test for reviewing a Sheriff's decision to confirm a sale in execution

The application was dismissed with costs on the ordinary scale in favour of the 2nd respondent.

1. An application under Order 40 Rule 359(8) is a review of the Sheriff's decision limited to grounds of objection raised before the Sheriff in terms of Rule 359(1). 2. To establish that a sale in execution was conducted at an unreasonably low price, an applicant must present properly supported valuations reflecting upper and lower limits of market price to enable the court to determine whether the price achieved is substantially lower than reasonably anticipated. 3. Where a sale has been properly advertised and conducted, the highest price offered at auction is a strong indicator of market value and theoretical evidence of a valuator should not readily be accepted against specific evidence of a price offered in open competition. 4. Unsworn valuation reports have no probative value and cannot be relied upon by the Sheriff or the court. 5. Courts will not readily interfere with sales in execution as this would deter future purchasers and undermine the efficacy of judicial sales, unless good cause is shown and the interests of justice demand intervention.

The court observed that applicants often forget the rights and interests of other parties in execution proceedings, such as judgment creditors and purchasers, who are often innocent parties. The court expressed concern about the abuse of Order 40 Rule 359(8) applications, noting that the essence of a judgment is to give relief to the judgment creditor including through sales in execution, and courts should not be used to "trip to the ground" their own orders at the "flimsiest of excuses" of alleged violations or irregularities. The court also noted that allowing sales to be easily set aside on grounds that applicants believe they can fetch a better price outside the court process would dampen participation in future judicial sales.

This case reinforces important principles in Zimbabwean (and by extension South African) law regarding sales in execution and judicial review of Sheriff's decisions. It establishes the evidentiary burden required to challenge a sale in execution on grounds of unreasonably low price, emphasizing that properly conducted auction sales are strong indicators of market value and that unsworn valuations have limited probative value. The judgment underscores the principle of finality in litigation and the need to protect the integrity of judicial sales to maintain confidence among potential purchasers. It also clarifies the scope of review under Rule 359(8) as being limited to matters raised before the Sheriff, preventing parties from raising new issues on review.