Tinashe Able Chimanikire and Arminco Investments (Pvt) Ltd v Central Africa Building Society and Others

The first respondent (CABS) obtained judgment against the applicants in case HC9692/13 for payment of US$324,815.49 plus interest and costs on 20 January 2014. In execution of this judgment, the Sheriff sold the second applicant's immovable property (Stand 130 Marandellas Township) to the second respondent for US$230,000. The applicants objected to the sale under Rule 359(1) on grounds that the property was sold for an unreasonably low price. The hearing of the objection was set for 7 November 2017, but did not materialize as the parties reached a settlement. By consent order submitted to the Sheriff, the parties agreed to suspend the sale until 28 February 2018 to allow the judgment debtor to obtain an offer exceeding US$230,000. They agreed that if no such offer materialized, the Sheriff would confirm the auction bid. The applicants failed to secure a higher offer by the deadline, and the Sheriff confirmed the sale on 12 March 2018 in accordance with the consent agreement. The applicants then brought this application under Rule 359(8) to set aside the Sheriff's confirmation, alleging they had obtained two offers (one for US$470,000 and another for US$300,000), both of which were not cash offers and involved uncertain financing arrangements.

• Whether a Rule 359(8) application is available to a judgment debtor who consented to the confirmation of a sale
• Whether the court can set aside a Sheriff's confirmation made by consent of the parties rather than on the merits of an objection
• Whether the applicants could raise grounds for setting aside the sale that were not considered by the Sheriff in his decision
• Whether the applicants discharged the onus of proving that the property was sold for an unreasonably low price
• The proper scope and application of Rule 359(8) of the High Court Rules

The application was dismissed with costs.

A Rule 359(8) application to set aside a Sheriff's confirmation of sale is not available to a judgment debtor who has consented to the confirmation of the sale, even if that consent was conditional. Rule 359(8) provides for review only of a Sheriff's independent decision made under Rule 359(7) after considering objections raised under Rule 359(1). Where the Sheriff confirms a sale by consent of the parties pursuant to a settlement agreement, there is no decision on the merits to review, and the parties are bound by their agreement. The court sitting under Rule 359(8) reviews only the Sheriff's decision on the limited grounds specified in Rule 359(1), and cannot entertain grounds not considered by the Sheriff. A judgment debtor seeking to prove a sale price was unreasonably low must present properly supported valuations showing the market price range, not speculative non-cash offers without demonstrated creditworthiness.

The court observed that if a party wishes to overturn a confirmation of sale made by consent for some reason, they would have to do so by means other than Rule 359(8), though the court did not elaborate on what those alternative remedies might be. The court also commented that the unreasonableness of a sale price is not determined by the judgment debtor's wishful thinking or desire to secure a price that would eliminate all debt, but by practical evidence on the ground. Mathonsi J noted that the price achieved at an auction is itself taken as a reliable indication of the property's value, citing Morfopoulous v Zimbabwe Banking Corporation Ltd & Ors 1996 (1) ZLR 626 (H) and Zvirawa v Makoni & Anor 1988 (2) ZLR 15 (S).

This case clarifies important principles regarding the scope and limitations of Rule 359(8) applications in Zimbabwean civil procedure. It establishes that: (1) Rule 359(8) is not available to set aside a Sheriff's confirmation made by consent of the parties; (2) the remedy under Rule 359(8) is strictly limited to reviewing the Sheriff's decision on objections raised under Rule 359(1); (3) parties cannot use Rule 359(8) to escape the binding effect of settlement agreements they voluntarily entered into; and (4) judgment debtors must present proper valuations and concrete evidence to discharge the onus of proving a sale price was unreasonably low - speculative, non-cash offers are insufficient. The case reinforces the principle of pacta sunt servanda (agreements must be kept) in the context of execution proceedings and Sheriff's sales.