Dickson Kandawasvika & Another v The Sheriff of Zimbabwe & Others

The first appellant owned immovable property (Stand No. 230 Vainona Township) registered under deed of transfer number 9140/2003. Following a judgment in case HC 4968/13 on 29 May 2014 ordering the appellants to pay NMB Bank Limited US$131,411.42 plus interest and costs, the property was declared executable. The Sheriff sold the property by public auction on 24 July 2015 to the third respondent (agent for the fourth respondent/purchaser) for US$120,000. The Sheriff declared the third respondent the purchaser on 29 July 2015 in terms of Rule 356 of the High Court Rules, 1971. On 17 August 2015, the appellants sent a letter of objection to the Sheriff (copied to the auctioneer and purchaser but not the bank until 2 October 2015), attaching a valuation showing the property's open market value of US$265,000 and forced sale value of US$175,000. Also on 17 August 2015, the Sheriff wrote to the auctioneers directing sale by private treaty for 90 days. However, following a hearing on 13 October 2015 where the appellants' counsel conceded their letter did not constitute a valid objection under Rule 359(2) and (3), the Sheriff confirmed the sale on 16 October 2015. The appellants initially filed a Rule 359(8) application (HC 11139/15) to set aside the confirmation but withdrew it on 19 November 2018 after 3 years. They then filed a fresh application under section 14 of the High Court Act on 6 December 2018 seeking a declaratory order setting aside the sale. By this time, the fourth respondent had taken transfer and made substantial improvements to the property.

• Whether an application for a declaratory order to set aside a sale in execution was properly brought under section 14 of the High Court Act or should have been brought as a review application under Rule 359(8) of the High Court Rules, 1971
• Whether the Sheriff's purported revocation letter of 17 August 2015 was valid and rendered the subsequent confirmation of sale a nullity
• Whether a nullity based on an invalid letter of objection could support a valid revocation order
• Whether the court erred in awarding costs on the higher scale
• Whether the proper procedure in Rule 359 for objecting to a sale in execution was followed

1. The appeal is dismissed. 2. The appellants shall jointly and severally, the one paying the other to be absolved, pay the second and fourth respondents' costs on the scale of legal practitioner and client. The Registrar was directed to bring the judgment to the attention of the Judicial Service Commission regarding the need for training the Sheriff and officers on proper procedures for handling sales in execution.

An application that seeks to set aside a Sheriff's confirmation of a sale in execution on grounds that the sale was improperly conducted or the price was unreasonably low must be brought under Rule 359(8) of the High Court Rules, 1971, not as a declaratory order under section 14 of the High Court Act. Courts will examine the substance of the grounds and relief sought, not merely the form, to determine the true nature of an application. A nullity based on an invalid foundation (such as a letter of objection that does not comply with Rule 359(2) and (3)) cannot support any valid order or proceeding - applying the principle that one cannot "put something on nothing and expect it to stay there." Where the Sheriff confirms a sale under Rule 359(10) within 15 days of declaring the purchaser in the absence of a valid objection, that confirmation is valid regardless of any intervening nullities. An applicant who withdraws a properly constituted application under Rule 359(8) and immediately files an improper application styled as a declaratory order seeking the same relief engages in an abuse of process that warrants costs on a punitive scale.

The Court made significant observations about the need for proper training of the Sheriff and officers regarding compliance with the High Court Act and Rules of Court in conducting sales in execution, directing the Registrar to bring this judgment to the attention of the Judicial Service Commission. KUDYA AJA also observed that the procedure in Rule 359, although mirroring court application procedure, is "sui generis" - an elaborate and self-contained procedure enacted following wholesale amendment by SI 80/2000 on the recommendation of SMITH J in Munyoro v Founders Building Society. The Court noted that the hearing of 13 October 2015 was not called to determine condonation of late lodgement of a proper objection but to determine confirmation, and while this hearing was a nullity (not being called under Rule 359(7)), this did not affect the validity of the confirmation letter which complied with Rule 359(10). The Court also reiterated the principle that costs are in the discretion of the trial court and an appeal court will only interfere if the costs order is afflicted by irrationality (citing Barros & Anor v Chimphonda), and that the Supreme Court does not discourage parties from approaching it for redress in merited cases, but will impose punitive costs where appeals are hopeless and designed to harass and frustrate respondents.

This case is significant in Zimbabwean civil procedure law for several reasons: (1) It clarifies the distinction between applications for declaratory orders under section 14 of the High Court Act and review applications under Rule 359(8) of the High Court Rules, establishing that courts will look beyond the form of relief sought to the substance of the grounds and relief to prevent disguised reviews; (2) It reinforces the principle that a nullity pervades every proceeding based upon it, applying the classic McFoy v United Africa Co principle that nullities do not require court orders to be set aside; (3) It emphasizes the importance of strict compliance with the sui generis procedure set out in Rule 359 for objecting to sales in execution, which was substantially amended by SI 80/2000 following the recommendation in Munyoro v Founders Building Society; (4) It demonstrates that abuse of process, particularly withdrawing one form of application and immediately filing another improper application for the same relief, will attract punitive costs orders; (5) It highlights the policy considerations underlying sales in execution that favor finality once proper procedures have been followed and transfer has occurred; (6) The court's direction to the Judicial Service Commission regarding training of Sheriffs underscores the importance of proper administrative compliance in execution proceedings. The case serves as a warning against forum shopping and procedural manipulation in execution matters.