David Chiweza and Khumbula Chiweza v Munyaradzi Paul Mangwana and Pauline Mangwana and CBZ Bank Limited and The Sheriff for Zimbabwe and The Registrar of Deeds, Harare N.O.

The applicants owned immovable property known as number 2157 Glen Lorne Township. The property was attached in execution of a judgment obtained by the third respondent (CBZ Bank Limited). The Sheriff (fourth respondent) sold the property by private treaty sale on 29 October 2015, declaring the first and second respondents the highest bidders at $226,500.00. After the judgment creditor objected, the purchasers increased their bid to $260,000.00, which the Sheriff accepted and confirmed on 29 October 2015 and 23 November 2015 respectively. The Sheriff purported to notify the applicants of the sale and invite objections by sending letters to incorrect addresses (13 Bargrobe Close and 13 Bargade Close instead of 12 Bargrove Close). The applicants only became aware of the sale on 12 December 2015 when the purchasers sought to occupy the property. The applicants then sought to challenge the sale, filing their application for condonation of late noting of review on 26 February 2016. The property had an open market value of $450,000.00 and a forced sale value of $307,000.00, but was sold for only $260,000.00.

• Whether condonation should be granted for the late filing of an application for review of the Sheriff's confirmation of sale
• What are the requirements for granting condonation of late filing
• Whether the applicants provided a reasonable explanation for the delay in filing the review application
• Whether the applicants had prospects of success in the main review application
• Whether the Sheriff's conduct in selling the property without properly notifying the applicants constituted a material irregularity
• Whether the sale price was unreasonably low
• Whether the applicants' constitutional right to procedurally and substantially fair administrative conduct was violated

1. The application is granted. 2. The applicants are granted leave to file the application for review. 3. The application for review is to be filed within 10 days of this order. 4. The 1st, 2nd and 3rd respondents are to pay the costs of this application.

1. In applications for condonation, courts must exercise their discretion judicially by considering all relevant factors cumulatively, including degree of non-compliance, explanation for delay, prospects of success, importance of the case, and prejudice to parties. The factors are interrelated and must be weighed against each other, with strong factors compensating for weak ones. 2. Where a Sheriff fails to properly notify a judgment debtor of their right to object to a declaration of the highest bidder and confirmation of a judicial sale, such failure constitutes a material irregularity that renders the sale invalid and violates the constitutional right to fair administrative conduct. 3. A property sold by private treaty that fetches a price below its forced sale value is sold at an unreasonably low price, which constitutes grounds for setting aside the judicial sale. 4. Despite an inadequate explanation for delay, condonation may be granted where the delay is short, prospects of success in the main matter are excellent, and the interests of justice demand it. 5. Additional costs incurred after a judicial sale (such as Sheriff's fees, auctioneer's fees, conveyancing costs) do not form part of the purchase price or bid price for purposes of determining whether the sale price was reasonable.

The court made several non-binding observations: (1) The Sheriff's conduct in accepting a price so much less than the forced sale value after a private treaty sale was "mind-boggling" and "questionable"; (2) To condone such conduct would send the wrong message to the public and bring the administration of justice into disrepute; (3) It is the duty of the court to help build trust in the processes of judicial sales; (4) Judicial sales negatively impact on debtors and their property, hence the need for Sheriffs to pay attention to detail; (5) The purchasers should perhaps be negotiating a top-up instead of opposing the application; (6) The purchasers are unlikely to suffer irreparable harm as they have an alternative remedy in the form of damages from the Sheriff; (7) Courts do not readily set aside judicial sales as this has the effect of bringing the efficacy of judicial sales into disrepute; (8) Condonation is not there simply for the asking; (9) The court should not punish applicants for the sins of their legal practitioners, particularly where the case is important and prospects of success are excellent.

This case is significant in Zimbabwean law (note: this is a Zimbabwean judgment, not South African, though it applies similar common law principles) for establishing the importance of strict compliance with procedural requirements in judicial sales, particularly the Sheriff's duty to properly notify judgment debtors of their right to object to sales. It reinforces the constitutional right to procedurally and substantially fair administrative conduct in the execution process. The case demonstrates that courts will look at condonation applications holistically, and strong prospects of success can compensate for weaknesses in other requirements. It also establishes that a sale price significantly below the forced sale value at a private treaty sale may constitute grounds for setting aside the sale as unreasonably low. The judgment sends a strong message about the need for due diligence and care by Sheriffs in conducting judicial sales to maintain public trust in the administration of justice.