Givemore Garati v Stalin Mau Mau, Beverly Building Society, Sheriff for Zimbabwe, Registrar of Deeds

The appellant's property (stand no. 2580 Highfield) was sold by public auction on 30 November 2001 in execution of a judgment in favour of the second respondent (Beverly Building Society). The first respondent (Stalin Mau Mau) was declared the purchaser on 12 December 2001 for $2,050,000.00. The appellant lodged a written request with the Sheriff on 14 January 2002 to set aside the sale on the ground of unreasonably low price, which was dismissed on 15 April 2002 when the sale was confirmed. The first respondent failed to pay the purchase price immediately after confirmation as required by Rule 361. Despite concerns expressed by the second respondent in October 2002 and the appellant in January 2003, the first respondent only paid the purchase money on 31 January 2003—fourteen months after the sale and nine months after confirmation. On 18 February 2003, the appellant applied to court to set aside the sale on the ground of inordinate delay in payment. The first respondent opposed, arguing the application was out of time under Rule 359(8). The appellant then applied for condonation in case HC 2596/03, which was dismissed by the High Court on 30 July 2003.

• Whether the appellant's application to set aside the sale was subject to the one-month time limit prescribed in Rule 359(8) of the High Court Rules
• Whether condonation for late filing was required
• Whether a person interested in a sale in execution retains a common law right to apply to court to set aside a sale on good cause shown, independent of Rule 359(8)
• Whether inordinate delay in payment of purchase price constitutes good cause to set aside a sale in execution

The appeal succeeded with costs. The judgment of the High Court was set aside and substituted with an order that the matter be struck off the roll with costs. The matter was to be remitted to the High Court for determination of the main application on its merits.

The binding legal principle is that at common law, any person interested in a sale in execution may apply to court to have the sale set aside on good cause shown before transfer of the property is effected, and this common law right exists independently of and in addition to the statutory right under Rule 359(8) to challenge the Sheriff's confirmation decision. Where an applicant seeks to set aside a sale on grounds arising after the Sheriff's confirmation (such as delay in payment of purchase price), the application is properly brought under the common law right to restitutio in integrum and is not subject to the one-month time limit prescribed in Rule 359(8). An application for condonation is only necessary where there has been failure to comply with a rule under which a party is bound to act in seeking relief from the court.

The Court observed that courts are generally reluctant to set aside a sale in execution which has been confirmed, and are even more reluctant to do so where transfer of the immovable property has been effected. The Court also noted that in determining whether good cause has been shown to set 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 sale 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 has not been effected. The Court indicated that Rule 357 provides a mechanism for the Sheriff to cancel a sale where the purchaser fails to carry out obligations, though this was not pursued in this case and payment had already been made by the time of the application.

This case is significant in Zimbabwean civil procedure law (and relevant to South African jurisprudence given similar legal traditions) as it clarifies the relationship between statutory remedies under court rules and common law remedies in execution proceedings. It establishes that the statutory right to challenge a Sheriff's confirmation decision under Rule 359(8) does not displace or limit the broader common law right to apply for restitutio in integrum to set aside a sale in execution on good cause shown before transfer. The case confirms that a person interested in execution proceedings has multiple avenues for relief and that courts must carefully identify which remedy is being pursued to determine the applicable procedural requirements. It also provides guidance on when condonation applications are necessary—only where a party has failed to comply with a rule under which they were bound to act.