Harare Motorways (Private) Limited and African Banking Corporation of Zimbabwe Limited t/a BANC ABC v The Sheriff for Zimbabwe N.O and Others

The second applicant (African Banking Corporation) obtained judgment against the first applicant (Harare Motorways) and other judgment debtors under HC 4137/16. Stand 173 Willowvale Township was attached and sold at public auction on 25 June 2018, with the second respondent (Doves Funeral Assurance) declared the highest bidder. On 31 October 2018, one of the judgment debtors (KK) was placed under final liquidation. The Sheriff directed that all sales be stayed and highest bidders refunded, including the second respondent, despite the property belonging to the first applicant and not KK. The Sheriff claimed to be functus officio. The first and second applicants then entered into a separate agreement to sell the property to the third respondent (Bluestar Logistics). When the second applicant requested the Sheriff to uplift the caveat to enable transfer to the third respondent, the Sheriff indicated he had already confirmed the sale to the second respondent. The applicants challenged the Sheriff's confirmation of the sale to the second respondent by way of a declaratory order, seeking to set aside the confirmation and uplift the caveat.

• Whether a party aggrieved by the conduct of an auction sale can challenge a confirmation of sale by way of a declaratur (declaratory order)
• What is the proper procedure for challenging a judicial sale in execution that has been confirmed by the Sheriff
• Whether the applicants properly approached the court or should have brought their application under Order 40 Rule 359(8) or as a review application
• Whether the Sheriff acted ultra vires in confirming the sale after declaring himself functus officio

The application was dismissed. The first applicant, second applicant and third respondent were ordered to pay the second respondent's costs jointly and severally, the one paying the other to be absolved.

A challenge to a confirmed judicial sale in execution cannot be brought by way of a declaratory order where the grounds relied upon are violations of court rules by the Sheriff. Where an applicant relies on alleged violations of the rules (such as the Sheriff acting ultra vires), the proper procedure is to bring an application for review in terms of the rules, not an application for a declaratur. Challenges to judicial sales must follow the procedures prescribed in Order 40 Rule 359 or, where that rule does not apply, must be brought as a review application on common law grounds within the prescribed time limits. A declaratur has no place in judicial sales because such challenges are comprehensively covered by the court rules and review procedures. Parties cannot evade the requirements of the rules, including time limits for filing review applications, by recharacterizing their application as one for declaratory relief.

The court made observations about the Sheriff's report filed in the proceedings. The court noted that while the Sheriff is an officer of the court conducting judicial sales on behalf of the court, the rules do not make provision for the filing of a report by the Sheriff. Where the Sheriff does not wish to oppose proceedings, he may elect to abide by the decision of the court without filing opposition papers. The court suggested that it may be time for the rules to make provision for the filing of a Sheriff's report in cases where he has conducted a sale and does not wish to oppose legal proceedings challenging that sale, as such a report would give insight to the court regarding the conduct of the sale and would be of great assistance. The court also noted that nothing stops the court from requesting a report from the Sheriff in such matters.

This case clarifies the proper procedural mechanism for challenging judicial sales in execution in Zimbabwean law at different stages of the sale process. It establishes that declaratory relief is not an appropriate remedy for challenging judicial sales, which must be challenged either under the specific provisions of Order 40 Rule 359 or by way of review application based on common law grounds. The judgment reinforces procedural requirements and prevents parties from circumventing the rules by disguising review applications as applications for declaratory orders. It also highlights the distinction between grounds based on violations of court rules (which require following the procedures in those rules) and common law grounds of review. The case serves as an important precedent on the limits of declaratory relief and the importance of following prescribed procedures in execution proceedings.