Gladys Dekwe v Ecobank Zimbabwe Limited and Others

The applicant purchased Stand 260 Chadcombe Township on 24 April 2002 from the third respondent and paid the purchase price in full. On 23 April 2014, the third respondent issued summons against the applicant seeking cancellation of the sale agreement, claiming non-payment. Default judgment was entered in HC 311/14. While the applicant was pursuing rescission of this judgment, the third respondent obtained a mortgage bond over the property from the first respondent (Ecobank) in April 2017. The applicant and third respondent signed a consent to rescission of judgment on 11 September 2017. However, the third respondent defaulted on the mortgage, leading the first respondent to obtain an order. The property was sold in execution to the second respondent through a Sheriff's sale. The applicant objected and undertook to pay the judgment debt, but delayed payment by 5 days. By that time, the sale had been confirmed on 20 February 2019, and transfer was effected to the second respondent via Deed of Transfer number 3317/2019. The applicant's prior application under Rule 359(8) of the High Court Rules was unsuccessful.

• Whether a sale in execution can be set aside under common law after transfer has been effected to a third party
• What grounds are required to set aside a sale in execution after transfer under common law
• Whether the third respondent acted in bad faith by registering a mortgage bond while rescission proceedings were pending
• Whether the first and second respondents had knowledge of prior irregularities in the sale

The application was granted. The sale by public auction and Deed of Transfer number 3317/2019 in favour of the second respondent were set aside. The first and second respondents were ordered to pay costs jointly and severally, one paying the other to be absolved, on the ordinary scale.

After transfer of property sold in execution has been effected to a third party, the sale can only be set aside under common law on the narrow grounds of bad faith, knowledge of prior irregularities in the sale in execution, or fraud, as established in Mapedzamombe v Commercial Bank of Zimbabwe 1996(1) ZLR 257 (S). Such grounds must be strictly and narrowly construed. Where a judgment debtor fraudulently bonds property while rescission proceedings are pending, and the purchasers have knowledge of the irregularities through common legal representation, the common law grounds are satisfied and the sale may be set aside even after transfer.

The court observed that applications to set aside sales in execution should be pleaded more succinctly. The court noted that there was no justification for an award of costs on the higher scale despite the applicant's request for such costs against the third respondent. The court remarked that the three-tier framework from Chiwanza demonstrates that the amendment to the High Court Rules introducing the Sheriff's review power did not oust the general jurisdiction of the court to bring the Sheriff's decisions under scrutiny, nor did it take away the vested right of interested parties at common law to approach the court for exercise of its general and inherent review powers.

This case is significant in Zimbabwean jurisprudence as it clarifies the three-tier framework for challenging sales in execution at different stages (before confirmation, after confirmation but before transfer, and after transfer). It establishes that while courts are generally reluctant to set aside sales after transfer has been effected, they will do so where common law grounds of bad faith, knowledge of prior irregularities, or fraud are established. The case demonstrates that fraudulent conduct by a judgment debtor who bonds property while rescission proceedings are pending, combined with knowledge of such irregularities by purchasers, constitutes sufficient grounds to set aside a sale even after transfer.