John T. Mashiri t/a Gwai Millers v Broadway Investments (Private) Limited and Others

On 28 November 2017, a court order by consent was issued suspending execution of the applicant's property following judgment in HC 10082/15, provided the applicant paid what was owed to the first respondent. A deed of settlement was entered into whereby the applicant acknowledged owing $69,088.05 and undertook to pay $3,000 per month. The applicant breached the court order, resulting in the first respondent instructing the Sheriff to proceed with sale in execution. The property was sold on 20 July 2018 to the second respondent (highest bidder) for $155,000. The Sheriff's evaluator had put the sale value at between $50,000 and $75,000. The applicant objected to confirmation of sale on grounds that: (1) the property was sold for an unreasonably low price (Rawson properties valued it at $210,000-$230,000); (2) the property was only advertised for four days prior to sale; and (3) a buyer willing to pay $200,000 was not given reasonable time. The Sheriff dismissed the objection and confirmed the sale.

• Whether the Sheriff's decision to confirm the sale in execution should be set aside in terms of Rule 359(8) of the High Court Rules 1971
• Whether the property was adequately advertised in terms of Rule 352
• Whether the property was sold at an unreasonably low price
• What constitutes 'good cause' for setting aside a sale in execution

The application to set aside the Sheriff's decision was dismissed with costs.

The binding principles established are: (1) In applications under Rule 359(8) to set aside a Sheriff's confirmation of sale, the applicant must show 'good cause', and it is more difficult to persuade the court to set aside a sale than it is before the Sheriff. (2) The adequacy of advertisement under Rule 352 must be assessed by whether it achieved its objective of notifying bidders, considering factors such as auction attendance and the reasonableness of the bid price, not merely the number of days of advertisement. (3) To prove a property was sold at an unreasonably low price, an applicant must show the price was substantially less than market price, supported by proper valuations. (4) Prices obtained at properly advertised and properly conducted auction sales are taken as reliable indications of value. (5) Courts must recognize that forced sales generally realize lower prices than ordinary sales, and will not set aside sales simply because one party made a bad bargain in the absence of fraud, mistake, or other legitimate grounds.

The court made observations about the commercial realities of execution sales, noting that judgment debtors' interests rank low in the scale of priorities in such sales, perhaps too low. The court warned against 'drifting into maudlin sentimentality and excessive sympathy for hardluck stories' as this would undermine efficient and effective mechanisms by which housing is funded. The court also noted that it would be 'commercially unacceptable' for courts to have power to set aside sales simply because one party made a bad bargain. These observations reflect the court's view that there must be a balance between protecting debtors and ensuring the effectiveness of execution procedures and commercial certainty.

This case provides important guidance on the standards for setting aside sales in execution in Zimbabwe. It clarifies that: (1) courts apply the 'good cause' test but are reluctant to interfere with confirmed sales; (2) adequacy of advertisement under Rule 352 should be assessed holistically by examining whether it achieved its purpose of attracting bidders, not merely by counting days; (3) there is a high burden on an applicant to prove that a sale price was 'unreasonably low' - meaning substantially less than market price; (4) forced sales naturally realize lower prices than ordinary sales and this is commercially acceptable; and (5) auction prices from properly conducted sales are strong evidence of reasonable value. The case reinforces the principle that courts should not undermine efficient funding mechanisms by setting aside sales absent legitimate grounds such as fraud or mistake.