Lonosphere Investments (Private) Limited v Messenger of Court, Bindura and Others

The applicant was a chrome mining company. The second respondent obtained a default judgment against the applicant in the Magistrates' Court (Case No. HRE C-CD660/25) for US$12,240.00 plus costs for chrome concentrate supplied. After defaulting on a settlement agreement, the first respondent (Messenger of Court) was instructed to execute the judgment and attached the applicant's mining equipment on 25 April 2025, scheduling a sale in execution for 24 October 2025. On 23 October 2025, the applicant paid the judgment debt and costs to the second respondent's attorneys. On 24 October 2025, before the sale commenced, the second respondent's attorney telephonically instructed the first respondent to stop the sale as the debt had been settled, with written confirmation to follow on 27 October 2025. Despite this instruction, the first respondent proceeded with the sale, selling equipment valued at US$200,000.00 for US$13,017.00. The applicant sought to set aside the sale in execution.

• Whether a sale in execution conducted after the judgment debt had been settled and the messenger of court instructed to stop the sale should be set aside
• Whether the failure to conduct a valuation of attached property as required by Order 26 Rule 6(1)(d) of the Magistrates Court (Civil) Rules, 2019 rendered the attachment and subsequent sale a nullity
• Whether property sold at an unreasonably low price warranted setting aside the sale in execution
• Whether costs on a legal practitioner-client scale were justified in the circumstances

1. The sale in execution conducted on 24 October 2025 was declared null and void and set aside. 2. The judgment debt under Magistrates Court Case No. HRE C-CD660/25 was declared to have been extinguished in full by the payment made on 23 October 2025. 3. The First Respondent was ordered to forthwith release the attached assets and restore them to the applicant's undisturbed possession. 4. The First Respondent was ordered to pay costs on an attorney-client scale.

1. A sale in execution must be stopped once the judgment debt and costs have been satisfied, and a messenger of court who proceeds with a sale after being instructed to stop by the judgment creditor's attorney acts unlawfully, rendering the sale void ab initio. 2. The requirement in Order 26 Rule 6(1)(d) of the Magistrates Court (Civil) Rules, 2019 to conduct an inventory and valuation of attached movable property is peremptory (mandatory), and non-compliance renders the attachment and any subsequent sale a nullity. 3. A messenger of court acts as an agent of the judgment creditor and must comply with instructions to cease execution once the causa for execution has been extinguished. 4. The use of "shall" in a statutory provision denotes a mandatory requirement, and non-compliance with peremptory provisions renders proceedings void. 5. A nullity does not beget a valid process - anything founded on a void act is equally void.

The court made several observations: (1) While courts do not lightly set aside sales in execution to maintain confidence in judicial sales, they will intervene where complaints go to the root of the sale and cause injustice (citing Mafurirano t/a Skyorks Filing Station v The Sheriff of the High Court). (2) The inventory and valuation requirements protect both judgment creditors and debtors - the purpose is not to dissipate or destroy the debtor but to ensure only sufficient property is taken to satisfy the debt, with any excess benefiting the debtor. (3) Messengers of court are officers of the court who must execute orders in terms of the law and rules; they are not free agents who can act as they please. (4) The conduct of the first respondent was "appalling and at most mala fide" and constituted "the most blatant form of abuse of office." (5) What is not specifically controverted in affidavits is deemed admitted, and no evidence is required to establish admitted facts. (6) The procedure in Order 26 Rule 8 of the Magistrates Court (Civil) Rules applies only to immovable property, not movable property.

This case affirms important principles protecting judgment debtors in execution proceedings in Zimbabwe. It reinforces that: (1) messengers of court must stop execution proceedings once the judgment debt has been satisfied, regardless of whether instructions are communicated telephonically or in writing; (2) the peremptory requirement in Order 26 Rule 6(1)(d) of the Magistrates Court (Civil) Rules, 2019 to conduct an inventory and valuation of attached property is mandatory, and failure to comply renders the attachment void; (3) the valuation requirement protects judgment debtors from having excessive property attached and sold at unreasonably low prices; (4) messengers of court are officers of the court who must act transparently and diligently, not as free agents; and (5) reckless conduct and abuse of process by court officers warrants punitive costs. The judgment emphasizes the balance between protecting judgment creditors' rights to execution while safeguarding judgment debtors from oppressive or irregular execution processes.