Muhammad Akram v The Sheriff of Zimbabwe and Olga Mukwindidza and The Belvedere Trust

The applicant obtained a default judgment against the 2nd respondent for US$175,720.00 on 12 February 2018 under HC 206/18. The Sheriff attached the 2nd respondent's movable property but made a nulla bona return. The Sheriff then attached immovable property including Stand 7287, No. 3 Kenilworth Avenue, Belvedere, Harare, which was registered in the name of the 3rd respondent (Belvedere Trust). A first sale in execution was conducted and the property was sold to the highest bidder for US$175,000.00. The 2nd respondent objected to the sale on grounds that the property belonged to a third party who had not consented. The Sheriff set aside the first sale because the property was registered in Belvedere Trust's name and the Trust had not been notified or given consent, relying on Rule 345 of the High Court Rules. Upon investigation, the applicant established that the 2nd respondent had paid the full purchase price to the 3rd respondent and only needed to sign transfer documents. The 3rd respondent's legal practitioners confirmed they had no interest in the property save to effect transfer to the 2nd respondent. The applicant instructed the Sheriff to proceed with a second sale, but the Sheriff refused, insisting the property must first be registered in the 2nd respondent's name. This led to the present application to compel the Sheriff to conduct the sale.

• Whether failure to cite the specific rule under which an application is brought is fatal to the application
• Whether Rule 345 of the High Court Rules prohibits the sale in execution of property registered in a third party's name
• What constitutes adequate consent by a third party under Rule 345 to allow sale in execution of property registered in their name
• Whether the Sheriff can be compelled by mandamus to conduct a sale in execution where the third party has consented
• Whether costs on a legal practitioner-client scale are justified

1. The first respondent is hereby ordered to sell in execution Stand 7287 Salisbury Township, also known as number 3 Kenilworth Avenue, Belvedere, Harare, held under Deed of Transfer 5285/2011. 2. The first respondent is hereby directed to conduct another sale in execution in terms of the rules of this court in relation to the above cited property which is under judicial attachment. 3. The 2nd respondent shall pay costs of this application on the legal practitioner and client scale.

Rule 345 of the High Court Rules does not prohibit the sale in execution of immovable property registered in a third party's name; it merely requires that such sale be subject to the real rights of that third party unless they agree otherwise. The purpose of Rule 345 is to protect the rights and interests of third parties with registered real rights. Where a third party is notified of the proposed sale and unequivocally states they have no interest in the property (such as where full purchase price has been received), this constitutes adequate consent under Rule 345 for the Sheriff to proceed with the sale in execution. The property does not need to be transferred into the judgment debtor's name before the Sheriff can conduct the sale. The Sheriff, as a public officer charged with execution of court orders, cannot refuse to carry out his mandate based on excuses not provided for by law, and failure to do so constitutes dereliction of duty.

The court observed that while it is desirable for legal practitioners to cite the relevant rule under which an application is brought (to draw attention of the Registrar and opposing party to the legality of the course taken), failure to do so is not fatal to the application on its own, particularly where no prejudice results. The court also commented that the Sheriff's interpretation of Rule 345 as requiring property to be in the judgment debtor's name before sale was difficult to fathom and that it was hard to understand how the Sheriff arrived at such an interpretation. The court noted that an examination of the opposing affidavit showed the 2nd respondent had no meaningful basis to oppose the application and was simply seeking to delay execution for selfish reasons, which justified costs on a legal practitioner-client scale.

This case clarifies the interpretation and application of Rule 345 of the High Court Rules, 1971, regarding sale in execution of property registered in a third party's name. It establishes that the rule does not prohibit such sales but merely requires that the sale be subject to the third party's real rights unless they consent. The case provides guidance on what constitutes adequate third party consent and emphasizes that once a third party with registered real rights indicates they have no interest in the property, this suffices for the Sheriff to proceed with the sale. It also reinforces the principle that the Sheriff, as a public officer, must execute court orders and cannot refuse to perform statutory duties based on incorrect interpretations of the rules. The judgment confirms that mandamus is an available remedy to compel the Sheriff to perform execution duties. Additionally, it addresses procedural issues regarding the necessity (or lack thereof) of citing specific rules when bringing applications.