Mrs Ronnah Mafurirano t/a Skyorks Filing Station v The Sheriff of the High Court and Others

The applicant's immovable property, number 10 Kerr Road Kumalo Bulawayo, was sold in execution by the first respondent (Sheriff) to the fifth respondent for $80,000.00 pursuant to a judgment debt owed to CBZ Bank Limited (second respondent). The Sheriff relied on an evaluation report by Bulawayo Real Estate (third respondent) dated 12 September 2014, which valued the property at $130,000.00 (market value) and $75,000.00 (forced sale value). The applicant objected to the sale, claiming the price was unreasonably low, and tendered her own evaluation report by Dawn Properties dated 22 September 2014 (two days after the sale on 19 September 2014), which valued the property at $150,000.00 (market value) and $98,000.00 (forced sale value). The Sheriff confirmed the sale after dismissing the applicant's objection. The fifth respondent had already obtained title to the property by the time of the court proceedings.

• Whether the sale in execution should be set aside under rule 359(8) of the High Court Rules on grounds that the property was sold for an unreasonably low price
• Whether the Sheriff acted irregularly in accepting an unsworn evaluation report from Bulawayo Real Estate
• Whether the court should interfere with a sale in execution where transfer has already been effected to a third party purchaser
• What standard must be met for a court to set aside a sale in execution

The application to set aside the sale in execution was dismissed with costs.

Sales in execution should only be set aside where there has been a flagrant breach or disregard for peremptory rules and procedures by the sheriff. Rule 351 of the High Court Rules, which provides that the sheriff 'may' obtain an evaluation report, is not peremptory and does not require evaluation reports to be on oath. The absence of an oath on an evaluation report cannot, in the absence of other pertinent faults, be the sole basis for setting aside a sale in execution. Where transfer of property has already been effected to a third party purchaser, a court can only interfere with the sale on allegations of bad faith or fraud on the purchaser's part. Courts must balance the interests of judgment debtors, judgment creditors, and purchasers, and should not set aside sales in execution as a matter of course on every complaint, as doing so would undermine confidence in the execution process.

The court observed that while an evaluation report on oath is more desirable as it is a sworn statement, in the absence of any pertinent fault with an evaluation report, whether it is on oath or otherwise cannot be the sole basis for setting aside a sale. The court noted that the timing of evaluation reports may affect their credibility - a report prepared before the sale (when the bid price is unknown) may be more reliable than one prepared after the sale by an evaluator engaged specifically to challenge the sale. The court expressed the view that sales in execution cannot and should not be set aside as a matter of course, and emphasized the importance of maintaining confidence in would-be purchasers at execution sales. The court suggested that a complaint should be about the process which renders the sale unsustainable in the circumstances, not merely about dissatisfaction with the price achieved.

This case establishes important principles regarding judicial interference with sales in execution in Zimbabwean law. It clarifies that: (1) evaluation reports need not be on oath to be valid under rule 351; (2) sales in execution enjoy a presumption of validity and should only be set aside where there is flagrant breach of peremptory rules; (3) courts must balance the interests of judgment debtors, judgment creditors, and purchasers to maintain confidence in the execution process; (4) once transfer has been effected to a third party purchaser, interference is severely limited and requires proof of bad faith or fraud; and (5) timing and circumstances of competing evaluation reports may affect their credibility and weight. The case demonstrates judicial reluctance to interfere with completed sales in execution absent substantial procedural irregularities going to the root of the sale.