Mabel Tasthi Ndlovu v Lindelwe Lauretta Mlotshwa and Others

The applicant divorced Patrick Ndlovu on 20 October 2005, with the court ordering that their matrimonial house (stand number 632 Nketa) be sold and the net proceeds divided 40% to the applicant and 60% to Patrick Ndlovu. In 2007, the applicant obtained a court order (HC 614/07) granting her legal practitioners exclusive authority to sell the house. Despite being notified of this order, Patrick Ndlovu entered into a sale agreement with the 1st respondent on 4 September 2007 for two billion Zimbabwe dollars. This agreement was subsequently declared invalid by the court in HC 50/08. Later, the 1st respondent obtained a judgment against Patrick Ndlovu for $16,000 under case HC 2559/10 and caused the judicial attachment of the disputed house, instructing the Sheriff to sell it in execution. The applicant then approached the court directly to set aside the judicial sale, without first utilizing the domestic remedies available under the High Court Rules.

• Whether the applicant adopted the wrong procedure by approaching the court directly to set aside the judicial sale without first exhausting domestic remedies under Order 40 of the High Court Rules, 1971
• Whether a creditor's claim for a judgment debt is preferent to the applicant's entitlement to a share of the property pursuant to a divorce order
• Whether the judicial attachment and sale should be set aside

The application was dismissed with costs.

Where a litigant seeks to set aside a judicial sale or challenge an attachment in execution proceedings, the litigant must first exhaust the domestic remedies provided under Order 40 of the High Court Rules, 1971 (including Rules 332, 348, 348A, and 359) by approaching the Sheriff before seeking direct intervention from the court. A premature application to court without utilizing these internal remedies is procedurally defective and liable to be dismissed.

The court noted that the main substantive issue for determination would have been whether the 1st respondent's claim as a creditor for a judgment debt was preferent to the applicant's entitlement to a share of the property pursuant to the divorce order. However, the court did not reach this issue due to the procedural defect. The court also observed that the warrant of execution makes the Sheriff's actions lawful and as such any sale pursuant to it should be challenged through the proper procedural channels provided in Order 40 of the Rules.

This case reinforces the importance of exhausting domestic remedies provided in the High Court Rules before approaching the court directly. It emphasizes the procedural requirements under Order 40 of the High Court Rules, 1971 for challenging judicial sales and attachments, requiring litigants to first engage with the Sheriff through the prescribed internal remedies (Rules 332, 348, 348A, and 359) before seeking court intervention. The case demonstrates the court's strict approach to procedural compliance in execution matters and serves as a reminder that failure to follow prescribed procedures can be fatal to an application, regardless of the merits.