Robson Makoni v CBZ Bank Limited and Others

The applicant was the registered owner of immovable property in Rusape held by Deed of Transfer No. 5678/09, encumbered by two mortgage bonds. CBZ Bank Limited (1st respondent) obtained judgment against the applicant in HC 2525/15 in July 2015. Following issuance of a writ, the Sheriff attached and sold the applicant's property on 9 February 2018 for $28,000. On 21 March 2018, the applicant's legal practitioner, Pepukai Mabundu, lodged an objection with the Sheriff in terms of Rule 359(i)(b) of the High Court Rules, 1971. The sole ground of objection was that the property was sold for an unreasonably low price of $28,000 when its open market value was allegedly $90,000 as per a valuation report by Preferred Properties Estate Agents dated 19 February 2018. The Sheriff dismissed the objection and confirmed the sale. The applicant then brought a review application alleging bias by the Sheriff and unreasonableness in dismissing the objection.

• Whether the Sheriff exhibited bias in dismissing the objection to the sale in execution
• Whether the affidavit deposed to by the applicant's legal practitioner was defective for not establishing personal knowledge of the facts
• Whether an unsworn valuation report could be relied upon to establish that property was sold at an unreasonably low price
• Whether a valuation based on open market value (as opposed to forced sale value) was relevant in challenging a sale in execution
• What constitutes an unreasonably low price in the context of a sheriff's sale in execution

The application was dismissed with costs.

1. An unsworn valuation report has no evidentiary value and cannot be relied upon to establish that property was sold at an unreasonably low price in execution proceedings. 2. In challenging a sale in execution, the relevant consideration is the forced sale value of property, not its open market value. 3. A valuation that only indicates an upper limit price without establishing lower limits is insufficient to determine market price or establish that a sale price was unreasonably low. 4. An adverse finding by a tribunal does not constitute bias; bias must be substantiated with concrete facts demonstrating actual or potential bias. 5. Courts should not lightly set aside sales in execution as this undermines the efficacy of the execution process and deters potential purchasers.

Mathonsi J made extensive obiter observations expressing concern about the erosion of the institution of judicial sales in execution due to judgment debtors contesting sales with frivolous and vexatious challenges that are "thin on substance but not lacking in noise and fury signifying absolutely nothing." The court emphasized the pressing need for courts to purposely discourage such contestations to protect the execution process from extinction. The judge strongly criticized the growing trend of litigants making gratuitous and unjustified accusations of bias against judicial officers, calling it "extremely unacceptable" and demonstrating a "lamentable lack of respect for judicial office." The court noted that while criticism of judicial decisions is acceptable and healthy in a democratic society, false accusations of bias are retrogressive and undermine the authority of courts. The judge also observed that unscrupulous defaulters should know that courts will not rescue them without good reason and they should "simply service their debts or face the consequences of losing their homes."

This case reinforces important principles in Zimbabwean execution law regarding the standards required to challenge sales in execution. It emphasizes the evidential requirements for objections to sheriff's sales, particularly that valuation reports must be sworn statements and must address forced sale value rather than open market value. The judgment also serves as a strong judicial statement against frivolous challenges to execution proceedings and unsubstantiated allegations of bias against judicial officers. It affirms the need to protect the institution of judicial sales in execution from vexatious litigation that undermines the efficacy of the execution process and deters potential purchasers.