Mathew Wheeler v Messenger of Court Harare N.O. and Others

The applicant (Wheeler) obtained a judgment by consent against the third respondent (Machingauta) for US$19,347.00 plus interest and costs. After a writ of execution against movables yielded a nulla bona return, Wheeler proceeded against the third respondent's immovable property (stand 10138 White Cliff South, Harare). A public auction produced a highest bid of only US$3,500.00, which Wheeler rejected. A sale by private treaty was authorized. Wheeler submitted a bid of US$19,000.00. The first respondent (Messenger of Court) telephonically advised Wheeler's lawyers that his bid was disqualified because he was an "interested party." The second respondent (Resident Magistrate) confirmed this position in writing on 17 May 2019, stating that while the rules were silent on the issue, it was "ethically and morally improper" for a judgment creditor to purchase a judgment debtor's property. Three other bids ranging from US$12,000.00 to US$13,500.00 were received but rejected as too low. Wheeler then sought a declaratory order that the disqualification was erroneous and that he should be declared the highest bidder and purchaser.

• Whether a judgment creditor can lawfully participate as a bidder in a sale in execution of the judgment debtor's property
• Whether the second respondent's decision to disqualify the applicant's bid was lawful
• Whether the applicant should have proceeded by way of review or declaratur
• Whether the court can declare the applicant as the highest bidder and purchaser of the property
• Whether the first or second respondent made the decision to disqualify the bid

1. The application for a declaratur succeeded. 2. The second respondent's decision to disqualify the applicant's bid was declared null and void and set aside. 3. The matter was remitted to the second respondent to reconsider all bids submitted in respect of stand 10138 White Cliff South, Harare, including the applicant's bid, in order to determine the highest bidder and purchaser. 4. Each party to bear its own costs.

A judgment creditor is entitled to participate as a bidder in a sale in execution of the judgment debtor's property, unless there is a specific legal or rule-based prohibition. An administrative authority cannot disqualify such participation based solely on subjective moral or ethical considerations without legal foundation. Such a decision is void ab initio and constitutes a nullity. Where an administrative decision is void ab initio due to illegality (as opposed to voidable due to procedural irregularity), the appropriate remedy is a declaratory order rather than review. However, courts will not usurp the administrative functions of statutory officers; where an unlawful decision is set aside, the matter should be remitted to the relevant authority for proper reconsideration in accordance with law.

The court made passing observations about the issue of whether the Messenger of Court is entitled to commission in a sale by private treaty. The court noted this was not properly before it as part of the substantive relief sought and declined to address it, observing it would ordinarily be a claim made by the Messenger for services rendered. The court also criticized the lack of attention to detail by the applicant's counsel, noting bewildering inconsistencies between the founding affidavit, answering affidavit, and draft order regarding which respondent's decision was being challenged. The court stated it "will not reward mediocrity" in this regard. The court also noted that Order 26 Rule 8(18) of the Magistrates Court Rules (which provides for challenging sales on grounds they were improperly conducted) would not apply in this case because no sale had actually been concluded at the time the application was launched.

This case establishes important principles in Zimbabwean law regarding judicial sales in execution. It confirms that a judgment creditor has the legal right to participate as a bidder in a sale in execution of the judgment debtor's property, absent any statutory or rule-based prohibition. The case reinforces that administrative authorities (such as magistrates) must act lawfully and within their powers as required by the Administrative Justice Act, and cannot rely on subjective moral or ethical considerations to create restrictions not found in law. It also clarifies the distinction between when a declaratur versus a review is appropriate: where an administrative decision is void ab initio due to illegality (rather than merely voidable due to procedural irregularity), a declaratur is the proper remedy. The case demonstrates judicial restraint in that courts will not usurp administrative functions but will remit matters for reconsideration where unlawful decisions have been made.