Nicholas Mawodzani Hatidani v Michael Heath and Others

The appellant (Hatidani) owed money to the third respondent and was unable to pay. His farm was put up for sale by the Sheriff on public auction and was bought by the first and second respondents (the Heaths) on 16 August 1996. The sale was confirmed by the Sheriff on 13 September 1996 in terms of Rule 360 of the High Court Rules. Before transfer could take place, Hatidani applied to have the sale set aside and obtained interim relief from Garwe J on 7 October 1996 under Rule 246, preventing transfer and eviction. Hatidani failed to prosecute the matter and was automatically barred. The Heaths set the matter down and it came before Robinson J on 20 January 1997, who discharged the provisional order after refusing an application to remove the bar. Hatidani then applied for rescission of Robinson J's judgment, which was dismissed by Smith J on 4 July 1997 on grounds that the default was inexcusable and the basis for setting aside the sale was without merit. Hatidani appealed to the Supreme Court, initially noting the appeal six months out of time, though leave to appeal out of time had been granted.

• Whether the Sheriff's sale should be set aside on grounds that the price paid was too low and the advertisement was misleading
• Whether there was consensus ad idem regarding the property sold (whether the whole farm or only a portion was sold)
• Whether the default judgment of Robinson J should have been rescinded
• Whether a confirmed Sheriff's sale should be set aside after confirmation under Rule 360

The appeal was dismissed with costs.

A confirmed Sheriff's sale will not be set aside unless there are compelling grounds to do so. Courts will be particularly reluctant to interfere after confirmation under Rule 360. Where a party seeks to set aside a sale on grounds of lack of consensus ad idem regarding the property sold, the party must provide credible contemporaneous evidence. Contradictory statements made after the sale, unsupported by affidavit evidence, will be rejected where they conflict with clear documentary evidence from the time of the sale, including advertisements, gazette notices, sale catalogues, and confirmation letters. A sale will not be set aside on grounds of inadequate price unless the price is patently low, and deficiencies in advertising caused by the judgment debtor's own conduct will not vitiate the sale.

The Court made strong observations about the credibility of evidence, noting that the contradictory letter from the auctioneer "bears all the marks of falsehood, concocted at the last minute on behalf of a man desperate to save his farm from being sold." The Court also noted the procedural comedy of errors where the appeal was initially dismissed for being out of time when leave had in fact been granted, and another error where a document had been filed but given the wrong case number, leading to the refusal of an application to remove the bar.

This case reinforces the principle that courts will be extremely reluctant to set aside a Sheriff's sale after it has been confirmed under Rule 360 of the High Court Rules. It establishes that parties seeking to set aside such sales must provide credible evidence and cannot rely on contradictory, unsubstantiated claims made after the fact. The case also illustrates the court's willingness to reject evidence it considers fabricated, particularly when contradicted by contemporaneous documentary evidence. It applies the principle from Mapedzamombe v Commercial Bank of Zimbabwe regarding the finality of confirmed Sheriff's sales and demonstrates the standard for proving that a sale price was so low as to vitiate the transaction.