Hilda Mbikwaphi Sibanda v The Messenger of Court Bulawayo N.O. and Others

The applicant's immovable property, No. 46 Manningdale, Lot 2 of Lot KN Willsgrove, also known as No. 46 Essexvale, Bulawayo Township, was sold in execution of a debt. A public auction was conducted on 13 July 2018 by Holland Auctioneers on behalf of the Messenger of Court. The property was sold to the 4th respondent (Shepco Properties) for $190,000.00, which exceeded the forced sale valuation of $175,000.00. The sale was conducted in the presence of a Magistrate, Mr. T Tashaya. The applicant was informed of the highest bid on 26 July 2018 and again on 9 August 2018 in response to her lawyers' enquiries. The applicant did not object to the sale before it was confirmed by the Provincial Magistrate. Only after confirmation, payment to the judgment creditor, payment of capital gains tax to ZIMRA, and transfer of title on 18 October 2018, did the applicant file an application for review seeking to set aside the sale.

• Whether the Messenger of Court and Provincial Magistrate failed to follow proper procedure for conducting a public auction under Order 26 of the Magistrates Court (Civil) Rules, 1980
• Whether the applicant was denied the right to object to the sale before confirmation
• Whether there were serious irregularities in the sale process that would justify setting aside a confirmed sale in execution
• Whether a sale in execution can be set aside after confirmation when the judgment debtor had opportunity to object before confirmation but failed to do so
• Whether the sale price of $190,000.00 was unreasonably low in the absence of a contrary valuation report produced before or during objection to the sale

The application was dismissed with costs of suit against the applicant.

Before a sale in execution is confirmed in terms of the Magistrates Court Rules, it is a conditional sale and any interested party may apply to court for it to be set aside, but the court will not readily do so. After confirmation of a sale in execution, courts will not interfere and set aside the sale unless there are compelling grounds, particularly where the judgment debtor had the opportunity to object before confirmation but failed to do so. The rules allow a judgment debtor to approach the court and compel compliance with the rules before confirmation so as to minimize setting aside of sales after confirmation. Substantial compliance with the procedural rules for sales in execution is sufficient. A sale price that exceeds the forced sale valuation cannot be challenged as unreasonably low without a properly made and sworn contrary valuation report produced before the sale or at least at objection before confirmation. Courts must protect the finality of confirmed execution sales to maintain the efficacy of the execution process and protect innocent purchasers and judgment creditors.

The court observed that it would be improper for a party to obtain an order against a Sheriff or Registrar of Deeds who have no real interest in the properties, knowing that the order practically affects the interests of a judgment debtor or purchaser. The court noted that officers of the court such as Messengers of Court and Magistrates are generally impartial and rarely file papers in opposition, as doing so risks accusations of bias or defending their actions at all costs. The court commented disapprovingly on judgment debtors who incur debts with no intention of paying them back, stating "Some people simply will not settle a debt. No matter how many times the Creditor runs around the walls of Jericho, the walls remain unshakable and will not fall.... It is just in their nature that they incur a debt which they have no intention whatsoever, of paying back." The court also noted that Order 26 of the Magistrates Court (Civil) Rules, 1980 is not a replica of Order 40 of the High Court Rules, 1971, and the Magistrates Court rules are sometimes more flexible, for instance by allowing more involvement by the execution creditor.

This case reinforces important principles in Zimbabwean execution law regarding the finality of confirmed sales in execution and the limited grounds for setting them aside. It emphasizes that judgment debtors must exercise their right to object to irregularities before confirmation of the sale, and courts will not readily interfere with confirmed sales in execution to protect the efficacy of the execution process and the interests of innocent purchasers and judgment creditors. The case also demonstrates that substantial compliance with procedural rules for execution sales is sufficient, and that parties cannot misrepresent non-opposition by court officials (who remain impartial) as admissions of irregularity. The judgment highlights the importance of obtaining proper valuation reports before sale if challenging sale prices, and warns against tactical delays by judgment debtors who fail to settle debts.