Wilfred Muteweye and Susan Muteweye v Sheriff of Zimbabwe N.O and Others

The applicants purchased immovable property (Stand 157 Meyrick Park Township) from the sheriff in a judicial sale in execution of judgment against the second respondent (Tallspring Investments) in case HC 10410/12. The applicants were the highest bidders, the sale was confirmed by the sheriff in May 2017, and they paid the full purchase price plus conveyancer's fees and stamp duty. However, on 22 June 2018, the sheriff cancelled the sale on instructions from the judgment creditor (third respondent) after the judgment debtor and judgment creditor entered into a deed of settlement. Unknown to the applicants and the sheriff, the judgment debtor had sold the same property to the fifth and sixth respondents on 11 June 2018, before the sheriff cancelled the sale. The property was transferred to the fifth and sixth respondents on 11 June 2018. The applicants filed an application on 7 February 2019 to compel the sheriff to transfer the property to them and to declare the cancellation null and void. The matter was initially granted, appealed to the Supreme Court, and remitted for determination of whether the property was capable of transfer as at the date of the application.

• Whether the sheriff acted lawfully in cancelling a confirmed judicial sale when he was functus officio
• Whether the property was capable of transfer by the sheriff to the applicants as at 7 February 2019 when it had already been transferred to third parties
• The effect of registration of immovable property in conveying real rights
• Whether the court could grant relief sought for the first time in an answering affidavit without a cause of action in the founding papers

1. The action of the first respondent (Sheriff) in cancelling the sale of the property is declared illegal. 2. The first respondent shall pay the applicants' costs.

Once a sheriff confirms a judicial sale, he becomes functus officio and has no power to cancel that sale. However, where immovable property has been registered in the name of a third party, that registration conveys real rights to the registered owner regardless of whether the registration was lawful or not. The effect of registration is determinative - until title registered in the name of third parties is set aside by court order under section 8 of the Deeds Registries Act, a sheriff cannot transfer property from a judgment debtor who no longer holds title to the property. Real rights arising from registration take precedence over personal rights under an unregistered judicial sale.

The court noted that it would be incompetent and unprocedural for an applicant to seek relief for the first time in an answering affidavit, as any relief sought must be founded on evidence set out in the founding affidavit and there must be a cause of action in the founding papers. The court observed that the applicants should have amended their application to establish a cause of action against the fifth and sixth respondents before seeking cancellation of their title deeds. The court also commented on the confusion caused by the joinder of the fifth and sixth respondents and declined to consolidate the matter with the separate application (HC 3079/20) filed by the applicants to set aside the title deeds, noting the applicants' failure to prosecute that application and the pending application for dismissal for want of prosecution.

This case is significant in Zimbabwean property law as it clarifies: (1) the principle that a sheriff becomes functus officio after confirming a judicial sale and cannot thereafter cancel it; (2) the priority of real rights created by registration of immovable property over personal rights arising from a judicial sale that has not yet been transferred; (3) the procedural requirement that relief sought must be founded on a cause of action established in founding papers and cannot be introduced for the first time in answering affidavits; and (4) the distinction between personal rights under a contract of sale and real rights obtained through registration under the Deeds Registries Act. The case demonstrates the tension between protecting purchasers at judicial sales and third parties who have obtained registered title.