Virimayinyamwiwa and Zebra Mining Syndicate v Gamestar Trading (Pvt) Ltd and Others

The 2nd Respondent obtained judgment against the Applicants for payment of US$5,924.00 and the equivalent value of 22 grammes of gold under case number HC 2856/13. A Writ of Execution was issued against immovable property, leading to the attachment of mining claims known as Zulu 15 located at Pioneer Block, Bulawayo. The mining claims were sold by private treaty to the 1st Respondent who paid the purchase price of US$7,100. On 18 December 2013, the Applicants applied to set aside the sale, alleging the mining claims were sold for an unreasonably low price, claiming the claims generated annual revenue exceeding US$1 million from gold ore processing. The 1st Respondent had already paid the purchase price and the gazetted transfer amount of US$5,016 to the 4th Respondent, and the 3rd Respondent (Deputy Sheriff) had signed the Certificate of Agent – Transfer to enable transfer of the claims.

• Whether the Applicants adopted the correct procedure to challenge a sale in execution that had already been confirmed by the Deputy Sheriff
• Whether an application to set aside a confirmed sale in execution on grounds of unreasonably low price should be brought by way of ordinary review under Order 33 of the High Court Rules
• Whether the court could entertain an application to set aside a confirmed sale in execution based solely on the ground of unreasonably low price

The application for setting aside the sale in execution was dismissed with costs.

Where a sale in execution has been confirmed by the Deputy Sheriff, any party wishing to challenge the validity of such sale must approach the court by way of ordinary review in terms of Order 33 of the High Court Rules. The grounds for such review at common law include gross unreasonableness, bias and procedural irregularities, but do not include unreasonably low price as a standalone ground unless it can be subsumed within the recognized common law grounds for review. An application to set aside a confirmed sale in execution that does not follow the review procedure prescribed under Order 33 constitutes the adoption of the wrong procedure and is liable to be dismissed on that basis alone.

The court observed that the Applicants did not approach the 3rd Respondent (Deputy Sheriff) in the first instance before bringing the application to court. While not essential to the decision on the procedural point, the court noted that the sale had been conducted procedurally in terms of Order 40 Rule 358(2) of the High Court Rules and that the Applicants had been properly informed of the sale through their legal practitioners. The court also noted without deciding that the claims of annual revenue exceeding US$1 million from the mining claims were supported by annexed copies of gold deposits with Fidelity Printers and Refiners (Pvt) Ltd, though this was not examined on the merits due to the dismissal on procedural grounds.

This case reinforces the procedural requirements for challenging confirmed sales in execution in Zimbabwean law. It establishes that once a sale in execution has been confirmed by the Deputy Sheriff, the proper procedure to challenge it is by way of ordinary review under Order 33 of the High Court Rules, not by direct application. The case clarifies that an unreasonably low price alone is not a recognized ground for review at common law unless it can be subsumed under recognized grounds such as gross unreasonableness, bias, or procedural irregularities. It emphasizes the importance of following correct legal procedures and the principle that applicants must first approach the administrative decision-maker (the Deputy Sheriff) before seeking judicial review.