The respondent (Central Africa Building Society) was the registered owner of Stand 2796 KweKwe under Deed of Transfer Number 4525/01 dated 27 November 2001. The respondent had purchased this property on 27 April 2001 following a Sheriff's sale in execution after foreclosing on a mortgage bond registered by the appellant (Twin Wire Agencies) due to the appellant's failure to maintain mortgage repayments. Despite the sale and subsequent transfer to the respondent, the appellant refused to vacate the property. The respondent launched an action for eviction. The appellant opposed summary judgment on three grounds: (1) the sale was not properly conducted; (2) the purchase price at auction was unreasonably low; and (3) the appellant had capacity to pay what was due and should have been given opportunity to sell by private treaty. The appellant also claimed to have instituted proceedings in Case Number HC 3750/01 challenging the sale.
The appeal was dismissed with costs. The summary judgment for eviction granted by the court a quo was upheld.
The binding legal principles established are: (1) Once transfer has been effected following a sale in execution, any application to set aside the transfer falls outside Rule 359 of the High Court Rules and must conform strictly with common law principles; (2) Under common law, immovable property sold by judicial decree after transfer has been passed cannot be impeached in the absence of allegations of bad faith, knowledge of prior irregularities in the sale of execution, or fraud; (3) Pending proceedings challenging a sale in execution do not constitute a defence to an eviction claim brought by the registered owner of the property; (4) Allegations that the sale was improperly conducted, that the price was unreasonably low, or that the defendant has the ability to pay, do not constitute defences to eviction after transfer has been effected to the purchaser.
The Court noted that even before a sale is confirmed under Rule 360, while it is a conditional sale and any interested party may apply to court to set it aside, the court will not readily do so. Once confirmed by the sheriff, the court would be even more reluctant to set aside the sale. These observations reinforce that the proper time to challenge a sale in execution is before confirmation and certainly before transfer, and that courts apply increasing reluctance to interfere as the sale process progresses toward finality.
This case is significant in Zimbabwean property and civil procedure law as it clarifies the limited remedies available to challenge a sale in execution after transfer has been effected. It establishes that Rule 359 of the High Court Rules (allowing applications to set aside sales in execution) only applies before transfer, and that after transfer, the stringent common law requirements apply. The case reinforces the principle that registered ownership, particularly following a lawful sale in execution and transfer, is strongly protected, and challenges based on procedural irregularities or inadequate price must be brought before transfer occurs. It also confirms that pending proceedings challenging the validity of a sale do not constitute a defence to eviction by the registered owner.