Sifiso Mahlangu v Collins Kabaira and Cokasa Leads (Pvt) Ltd

The plaintiff purchased property known as Stand 421 Borrowdale Township 26 at a Sheriff's sale by public auction for $270,500.00 and took transfer on 16 May 2013 under Deed of Transfer No. 0001809/13. The property was previously registered in the second defendant's name, and the first defendant was the second defendant's director. The plaintiff sought to evict the defendants from the property. The defendants defended on the basis of lis pendens, citing pending proceedings challenging the sale, particularly HC 3680/13 which challenged the Sheriff's confirmation of the sale dated 10 May 2013. The Sheriff had declared the highest bidder as purchaser on 19 March 2013 and confirmed the sale on 12 April 2013. The matter was referred for determination as a stated case, with agreed facts filed by the parties.

• Whether a registered owner and innocent third party purchaser of immovable property at a public auction is entitled to eviction proceedings against the defendant in the face of pending proceedings challenging confirmation of the sale
• Whether the plea of lis pendens can operate as a defense to ejectment proceedings
• Whether the Sheriff's confirmation procedure complied with the requirements of Order 40 Rule 359 of the High Court Rules
• Whether ejectment proceedings should be stayed pending determination of proceedings challenging the confirmation of sale

1. Plaintiff is not entitled to eviction proceedings in the face of pending proceedings challenging confirmation of the sale in execution per HC 3680/13. 2. Plaintiff pays the costs of suit.

Where a Sheriff's confirmation of a sale in execution is challenged through proper proceedings in terms of Order 40 Rule 359(8), ejectment proceedings by the purchaser should be stayed pending determination of the challenge to the confirmation. Any transfer of property authorized by the Sheriff before expiry of one month from the date of confirmation (the period allowed for challenging the Sheriff's decision under Rule 359(8)) is premature, precipitate and invalid. The plea of lis pendens has merit where there are pending proceedings properly challenging the confirmation of the sale in execution, and it would be fair and just not to allow ejectment proceedings to proceed until such challenge is determined, as success in setting aside the confirmation could entitle the original owner to cancellation of the transfer and restoration of title.

The court made several important observations: (1) The court noted that counsel for the plaintiff appeared unaware that Rules 359, 360 and 361 had been amended by SI 180/2000, and was relying on the now-repealed Rule 360. (2) The court observed that the adage "vigilantibus non dormientibus jura subveniunt" (the law helps the vigilant, not the sluggard) applies equally to the plaintiff, who had not sought dismissal of the defendants' application for want of prosecution under Order 32 Rule 236. (3) The court stated it was not necessary to determine the constitutional argument raised by the defendants in light of the findings made. (4) The court noted that HC 2103/15 could not be pleaded as lis pendens without an amendment to the defendants' plea, and that the defendants' counsel's emphasis on this case was misplaced. (5) The court emphasized the importance of legal practitioners updating themselves on amendments to court rules.

This case is significant in Zimbabwean property and civil procedure law as it: (1) clarifies the procedural requirements for Sheriff's sales under the amended Order 40 Rule 359 following SI 180/2000; (2) establishes that the doctrine of lis pendens can operate as a valid defense to ejectment proceedings where there are pending proceedings challenging the underlying confirmation of sale; (3) emphasizes the importance of compliance with prescribed time periods in execution sales, particularly the one-month period for challenging the Sheriff's confirmation; (4) demonstrates that even a registered owner who is an innocent third party purchaser cannot obtain ejectment where the validity of the underlying sale is properly challenged through pending proceedings; and (5) serves as a reminder to legal practitioners to ensure they are relying on current, not repealed, rules of court.