Valley Mining (Private) Limited and Others v African Banking Corporation t/a Banc ABC and Others

The applicants' immovable property (Stand 650 Borrowdale Township, also known as 21B Crowhill Avenue, Borrowdale, Harare) was attached in execution of a judgment granted in favour of the first respondent in Case No HC 5872/12. The property was advertised for sale and an initial offer of US$275,000 was made by David Chawota, which the sheriff rejected as too low. The property was then made available for sale by private treaty under Rule 358(2). The second respondent's offer of US$360,000 was accepted by the sheriff on 27 June 2013. The applicants were notified on 15 July 2013 and wrote to the sheriff indicating they would file objections within 15 days, but failed to do so. Instead, they filed an application for review on 30 July 2013, after the sheriff had confirmed the sale on 23 July 2013.

• Whether the sheriff properly advertised the sale in terms of Rule 352 of the High Court Rules
• Whether the sheriff complied with Rule 358(1) by obtaining consent of judgment debtors for sale by private treaty
• Whether the sheriff properly exercised discretion under Rule 359(2) regarding late objections
• Whether the sheriff properly exercised discretion under Rule 358(2) to ensure the sale price was fair and reasonable
• Whether the declaration of the second respondent as purchaser was properly made
• Whether the applicants were afforded an opportunity to be heard before confirmation
• Whether the application was properly brought before the court following correct procedure under Rule 359

The application was dismissed with costs to be paid by the applicants jointly and severally, the one paying the others to be absolved, on the ordinary scale.

The binding legal principles established are: (1) There is no provision for setting aside a sheriff's confirmation of a sale other than by way of an application filed in terms of Rule 359(8) of the High Court Rules; (2) A letter expressing intention to file objections does not constitute a formal request or objection under Rule 359; (3) Rule 358(1), which requires consent of judgment debtors for sales by private treaty, does not apply when the sheriff proceeds under Rule 358(2) following a failed public auction that did not produce a reasonable offer; (4) A party challenging the reasonableness of a sale price must produce substantive evidence such as a valuation report, not mere unsubstantiated assertions; (5) Strict compliance with the procedural requirements and time frames set out in the High Court Rules is mandatory for challenging sheriff's sales.

Zhou J made non-binding observations cautioning the sheriff's officers to be meticulous in ensuring appropriate dates are inserted in all documents, noting that wrong dates appeared in multiple letters with "amazing regularity." The judge warned that such errors risk having sheriff's decisions challenged based on confusion created by wrong dates, calling this scenario "clearly undesirable." The court also commented that having been aware for many months that their property would be sold in execution, it was incumbent upon the applicants to obtain a valuation report, which they failed to do.

This case clarifies the procedural requirements for challenging a sheriff's sale in execution, emphasizing the strict adherence required to Order 40 Rule 359 of the High Court Rules. It establishes that there is no alternative procedure for setting aside a sheriff's confirmation of sale other than an application filed under Rule 359(8). The judgment also distinguishes between the application of Rule 358(1) and Rule 358(2) regarding sales by private treaty, clarifying that consent of judgment debtors is not required when the sheriff proceeds under Rule 358(2) following a failed public auction. The case underscores the importance of proper procedural compliance and timely action in execution matters.