Judgment No. HB 47/14

                                                                                                                           Case No. HC 2781/12

                                                                                                X REF HC 3773/12; 2318/12; 1644/12

ZIMBABWE MINING COMPANY (PVT) LTD

Versus

OUTSOURCE SECURITY (PVT) LTD

And

DEPUTY SHERIFF (GWANDA)

And

WILLEM SMIT

And

S. DHLIWAYO

And

A.P. GLENDENING

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 4 JULY & 13 MARCH 2014

T. Moyo for applicant

S. Mushonga for 1^st respondent

2^nd respondent in person

N. Ndlovu for 3^rd respondent

Mrs H. Moyo for 4^th respondent

K. Phulu for 5^th respondent

Opposed Court Application

            KAMOCHA J:   On 18 August, 2012 the applicant applied for and was granted a provisional order by this court in the following terms:-

            “Pending determination of this matter the applicant is granted the following relief:-

(1)   That the 2^nd respondent be and is hereby interdicted from effecting delivery to the 3^rd, 4^th an 5^th respondents or any other party who purported to purchase applicant’s goods that were sold in execution on 10^th August 2012 pending the return date of this application.

(2)   In the event that any person has taken possession of any of the goods before the hearing of this application, that such person be and is hereby ordered to return the same to the applicant’s mine within 24 hours of being served with this order.

(3)   That the 2^nd respondent be and is hereby compelled to supply the applicant with a full return showing the full details of the sale, including any writ on which she acted within 24 hours of being served with this application.”

On 4 July 2012 the 1^st respondent obtained a judgment against the applicant in the sum of $29 490.  The first respondent further obtained another order against the applicant on 8 August, 2012 in the sum of $7 258,00.  The total indebtedness of the applicant to the 1^st respondent was $36 748,00 for which the 1^st respondent obtained a writ of execution.  The judgments were obtained in default.  Applicant is in the habit of not paying its debts.

            The first respondent then instructed the deputy sheriff (Gwanda) – the 2^nd respondent to attach applicant’s movable goods in execution of those two judgments.  On 12 July 2012 the second respondent attached applicant’s goods in execution.  The applicant complained that the said goods were not valued.

            The applicant alleged that it had subsequently entered into an agreement with the 1^st respondent to settle the judgment debt on 15 August 2012.

            The second respondent, had, however, proceeded with the sale in execution on 10 August 2012 yet the mandate to proceed with the sale in execution had allegedly been withdrawn before the deputy sheriff had been paid with ready money.

            The 2^nd respondent had sold the following applicant’s goods:- an excavator for         US$51 000,00, a bulldozer for US$21 000,00 and a dump truck for US$32 000,00 fetching a total amount of US$104 000,00 for a total judgment debt of only US$36 748,00.

            Applicant alleged that the 2^nd respondent had failed to observe the legal prerequisites for a sale in execution in that:-

(a)   She had not sold the attached goods for ready money

(b)   She had sold goods that were far above the amount on the writs she had; and

(c)    She had proceeded to receive payments from the purchasers after she had been told to set aside the sale in execution by the judgment creditor’s legal practitioners.

The applicant claimed to have satisfied the judgment in terms of an agreement it had allegedly entered into with the 1^st respondent.  It was for that reason that it felt if it was not granted an order interdicting the 2^nd respondent from effecting delivery of the goods to the purchasers and setting aside the alleged irregular sale, it would suffer irreversible damage.

The respondents argued that the applicant finds itself in an enviable and untenable position because of its tardiness and pointed out that the law protects the diligent and not the sluggard.  Its property was attached on 12 July, 2012.  For nearly a full month with the full knowledge of attachment it sat on its hands and did not take any action until its property was sold on 10 August, 2012.  It admits of no doubt that as at that date there was no letter suspending the sale.  Mr Steven Mushonga who deposed to the judgment creditor’s affidavit averred in paragraph 4.4 thereof that he had not instructed the deputy sheriff to stop the sale in execution as no undertaking was made by the applicant that the US$26 000,00 would be paid on 9 August 2012. He went further to state, in paragraph 4.6 that he had not agreed to instruct the deputy sheriff not to receive payment.

Consequently the respondents held the view that the deputy sheriff had the mandate to conduct the sale in execution.  That sale was not suspended and has not been suspended up to this date as there is no letter suspending the sale.  So that sale was clearly valid.

Apart from the fact that applicant did nothing up to the date of the sale in execution when it had prior knowledge a month prior to the sale, on the date of the sale applicant hired a bouncer to disrupt the sale without success.  It was only after the failure by the bouncer to stop the sale that applicant frantically tried to run around to have the sale set aside.

It was submitted that overall it showed that the applicant had no money to pay.  It only raised the money after the sale had been conducted.

Respondents contended that the applicant’s assertion that it had reached an agreement with the judgment creditor to settle the debt was simply not true.  There was no such agreement filed of record.  What is on record are letters that were exchanged between the parties discussing a possible stop of the sale in execution.

The applicant alleged that it had made a payment to satisfy the writ on 15 August, 2012 and filed annexure “D” as proof of payment of $39 988.  That, however, was not full payment as it was short by $488.  Moreover, that payment was not made to the deputy sheriff but was made to the first respondent’s legal practitioners who pointed out in their letter of 16 August, 2012 that the money was short by $488.  They, however, went on to say that they were prepared to consent to have the sale in execution set aside.

What is clear is that as at 15 August 2012 no instructions had been given to the deputy sheriff and no full payment had been made.  The respondents’ contention was that if the applicant had the money it should have paid to the deputy sheriff instead of paying the 1^st respondent’s legal practitioners.  In their view, applicant simply had no money to pay.

They further alleged that due to its lack of diligence the applicant complained about problems of its own making.  It brought this application basing it on the provisions of rule 359 of the High Court Rules.  But that rule only refers to immovable property.  It does not refer to movable property.  When it realised its error, it conceded at the hearing that the application was based on a wrong foundation.  It then attempted to make a meaningless change and contended that the application was based on the case of Ngarati v Mudzingwa 2008 (2) ZLR 88. It ignored the fact that that case was based on rule 359 which deals with immovable not movables.

The respondents accordingly submitted that the applicant’s case falls on that argument.  There is merit in that submission.

It was their contention that the only way applicant could challenge the proceedings of the sale in execution was by way of a review not in terms of rule 359 of the rules of court and not n terms of the Ngarati case.  The application should have been commenced in terms of order 33 rule 259 but it was not.  Instead it was commenced under order 40 rule 359.  The fact that the application was not a review is fatal to it.

The respondents went on to allege that the deputy sheriff made an inventory of the property which was attached and made a value judgment that the attached property may be sufficient to satisfy the writ.  In fact the bouncer hired by the applicant one Tichaona had locked away the small items which could have been sold to satisfy the writ.  The bouncer ran away with the keys of the section where the smaller items were located.  He even drove away a vehicle under attachment.  The problem that larger items instead of smaller ones were sold was clearly created by the applicant.

In any event rule 341 caters for a situation where there is an excess after payment of the judgment creditor’s claim and costs, the balance shall be paid to the judgment debtor by the deputy sheriff.  The fact that there is an excess amount does not in itself render the sale in execution invalid.  Even if the deputy sheriff had made a wrong calculation that in itself would not have invalidated the sale.

In the event the deputy sheriff negligently sold the other items, the applicant can sue her for damages and not to invalidate the sale.  There is merit in the submission.

The applicant had alleged that the deputy sheriff had not sold the attached property for ready money and went so far as to suggest that the sale was a credit sale.  Rule 338 order 40 of the High Court Rules provides that “… any movable property sold in execution shall be sold publicly and for ready money by the sheriff or his deputy to the highest bidder …”

The 3^rd respondent who bidded for the bulldozer and was declared the highest bidder was instructed by the deputy sheriff not to make a cash payment in the light of the value of the purchase price.  It was a large sum of money.  The respondent was instructed to make a bank transfer which he did.  It admits of no doubt that the sale in respect of the bulldozer was for ready money.

The 4^th respondent bought a front end loader for $51 000.  Payment was effected by way of an electronic cash transfer into the account of the deputy sheriff.  Payment in respect of this sum was also for ready money.

The 5^th respondent bought a CAT Dump truck R 317 for $32 000,00 by paying the sum of $29 090,00 into the deputy sheriff’s account on 15 August 2012.  The balance was to be paid to the Zimbabwe Revenue Authority as withholding tax.  There is also no doubt whatsoever that payment was for ready money in this case.

The English British Dictionary and Oxford Dictionary define “ready money” as:-

“money that is available to be spent immediately,” “money that is in hand or may be obtained quickly or easily, cash” “money on hand or quickly available, money held ready for payment,” “ payment money in the form of cash that is immediately available,”

The mode of payment used by all the three respondents made the purchase price quickly available.  It was money held ready for payment.  The suggestion by the applicant that “although the sale was clearly not a credit sale, second respondent did not receive cash.  She therefore turned it into a credit sale in breach of both the rules and the conditions of sale” is absurd and vexatious.  In the light of the foregoing this application fails.

Costs

            This is a proper case where costs should be awarded on a punitive scale.  The language used against the deputy sheriff was intemperate.  She was even called a liar and was lying by the advocate who drafted the heads of argument who is an officer of this court.  There was no need to call another officer of this court a liar.  This court will express its displeasure to that type of conduct by an award of punitive costs against the applicant.

            In the result the provisional order is hereby discharged with costs on an attorney and client scale.

            The 3^rd respondent’s counter-claim is granted in terms of the draft order on page 66 of the court application with costs being borne by the applicant only on an attorney and client scale.

            Similarly the 4^th respondent’s counter claim is granted in terms of the draft order on page 76 to 77 of court application with costs being borne by the applicant only on an attorney and client scale.

Messrs Mawere and Sibanda, applicant’s legal practitioners

Messrs Mashayamombe & Company, 1^st respondent’s legal practitioners

Cheda & Partners, 3^rd respondent’s legal practitioners

Dube-Tachiona & Tsvangirai, 4^th respondent’s legal practitioners

Phulu & Ncube, 5^th respondent’s legal practitioners