Givemore Garati v (1) Stalin Mau Mau (2) Beverley Building Society (3) Sheriff for Zimbabwe (4) Registrar of Deeds

The appellant's property (stand no. 2580 Highfield) was sold at public auction on 30 November 2001 in execution of a judgment in favour of the second respondent (Beverley Building Society). The first respondent (Stalin Mau Mau) was the highest bidder and was declared purchaser on 12 December 2001 for $2,050,000.00. The appellant objected to the sale under Rule 359(1) on the ground that the property was sold for an unreasonably low price. The Sheriff (third respondent) confirmed the sale on 15 April 2002. Despite the obligation to pay immediately after confirmation, the first respondent only paid the purchase price on 31 January 2003 - fourteen months after the sale and nine months after confirmation. On 18 February 2003, the appellant made a court application (HC 1488/03) to set aside the sale on the ground of inordinate delay in payment. The first respondent argued the application was subject to Rule 359(8)'s one-month time limit and was therefore out of time without condonation. The appellant then filed a separate application for condonation (HC 2596/03), which was dismissed by the High Court on 30 July 2003.

• Whether the appellant's application to set aside the sale on the ground of delayed payment of the purchase price was subject to the one-month time limit in Rule 359(8)
• Whether condonation for non-compliance with Rule 359(8) was required
• Whether an interested party has a common law right to apply to court to set aside a sale in execution before transfer on good cause shown, independent of Rule 359(8)
• Whether delayed payment of the purchase price by the purchaser constitutes good cause to set aside a confirmed sale in execution

The appeal succeeded with costs. The judgment of the High Court dismissing the application for condonation was set aside and substituted with an order that "The matter is struck off the roll with costs." The matter was to be remitted to the High Court to hear and determine the main application.

An interested party may apply to court to set aside a sale in execution before transfer on good cause shown at common law, independently of Rule 359(8). Rule 359(8), which provides a one-month time limit for applying to court to set aside the Sheriff's decision confirming or refusing to confirm a sale, applies only to challenges to that specific decision made under Rule 359(7). It does not apply to applications to set aside the sale based on grounds arising after the Sheriff's confirmation decision, such as unreasonable delay by the purchaser in paying the purchase price. The common law right exists in addition to the statutory right under Rule 359(8), and where an applicant is exercising the common law right rather than the statutory right, the time limit in Rule 359(8) does not apply and no condonation is required.

The court noted that at common law, courts are reluctant to set aside a sale in execution which has been confirmed, and even more reluctant where transfer of the immovable property has been effected. The court indicated that in determining whether a ground constitutes good cause for setting aside a sale, the court would take into account all relevant circumstances including: the failure by the Sheriff to act in terms of Rule 357 (which deals with cancellation of sales where the purchaser fails to carry out obligations); the attitudes of other interested parties (such as the judgment creditor and Sheriff) to the application; and the fact that transfer of the property has not been effected. The court also observed that where a purchaser fails to carry out obligations in a sale in execution, the Sheriff may be moved to cause the sale to be cancelled in terms of Rule 357.

This case clarifies the relationship between the common law right to apply to set aside a sale in execution and the statutory right under Rule 359(8) of the High Court Rules in Zimbabwean law (and by extension similar provisions in South African law). It establishes that the common law right to seek restitutio in integrum to set aside a sale in execution before transfer on good cause shown continues to exist alongside the statutory remedy. The case is significant for demonstrating that Rule 359(8) and its one-month time limit applies only to challenges to the Sheriff's decision confirming or refusing to confirm the sale, not to applications based on grounds arising after that decision, such as the purchaser's failure to pay the purchase price timeously. This preserves flexibility for interested parties to challenge sales on grounds that emerge during the execution process.