DISTRIBUTABLE (63)
Judgment
No S.C. 75\2002
Civil
Application No 422\96
NICHOLAS
HATIDANI v (1) DAVISON SHONHIWA (2) HONEY AND
BLANCKENBERG (3) THE MESSENGER OF COURT
(4) THE
REGISTRAR OF DEEDS N.O.
SUPREME
COURT OF ZIMBABWE
HARARE
JULY 22, 2002
O.C.
Gutu,
for the applicant
J.S.
Mandizhe,
for the respondent
Before:
CHIDYAUSIKU CJ, in Chambers, in terms of Rule 31 of the Supreme
Court Rules
This
is a Chamber application in which the applicant is seeking leave to
note an appeal out of time. The application is being
made in terms
of Rule 31 of the Supreme Court Rules, although strict compliance
with that rule has not been observed. I will overlook
that
non-compliance as it does not go to the root of the matter.
The
facts of this case are briefly as follows: George Seirlis and
Associates obtained judgment in the amount of $5 876.00 against
the
applicant in the magistrates court. Following the judgment a
warrant of execution was issued and movable property found
at No 160
Westwood was attached. The applicants wife challenged that
attachment of the movable goods on the basis that they
belonged to
her and not the applicant. The movables were released and the
immovable property, the family home, No 160 Westwood,
was attached.
The applicant paid part of the debt, about $2 000.00 leaving a
balance of about $3 000.00. The house on Stand No
160 Westwood was
thereafter sold to the first respondent at an auction in execution by
the Messenger of Court on 23 June 1995.
The house was sold by
auction to the highest bidder in terms of the Magistrates Court
Act and Rules. The first respondent purchased
the house for $186
000.00. On 11 July 1995 the applicant launched a court application
in the High Court seeking to set aside the
sale by auction of the
house. The matter was opposed. The court application was
dismissed by BARTLETT J in a judgment handed
down on 25 January 1996.
No appeal was noted against that judgment within the fourteen days
prescribed by the Rules.
On
26 June 1996 the applicant filed with this Court a Chamber
application for condonation for the late noting of an appeal against
the judgment of BARTLETT J. This was opposed. Upon receipt of the
Chamber application the Registrar directed the applicant to
comply
with the requirement of the rules of this Court before the matter
could be placed before a judge. Instead of complying with
the
directive the applicant, on 19 December 2001, filed a notice of
withdrawal of the application and tendered costs.
The
applicant now seeks to revive the Chamber application for condonation
on the basis that the notice of withdrawal did not comply
with the
rules, and, therefore, was of no force or effect. It is also
apparent from the opposing affidavit of the first respondent
that he
has since sold the immovable property to a third party, a Mr and Mrs
Murombe. No attempt has been made to join those interested
parties
in these proceedings.
This
application for condonation for the late noting of the appeal cannot
be granted for a number of reasons. This property was
auctioned in
1995. Not only has some six years elapsed since the property was
auctioned but the property is now registered in the
name of an
innocent third party. It now belongs to an innocent third party.
Although
this application was filed with this Court on 26 July 1996 it was
only served on the respondents legal practitioners
on 16 October
2001, some four years later. No explanation was offered for this
delay. The application was withdrawn albeit without
complying with
the rules and now the applicant wishes that the application be
adjudicated. No plausible explanation for this conduct
which, in my
view, evinces a complete disdain of the rules of this Court, has been
forthcoming. The explanation proffered is that
there was a
misunderstanding between the applicant and his legal practitioners.
This explanation is a totally inadequate explanation
for the
inordinate delay in this case.
Apart
from this the appeal has no prospects of success. According to the
notice of appeal two grounds of appeal are being advanced.
The
notice of appeal provides as follows:-
The
Learned Judge in the court a
quo misdirected
himself by failing to set aside the sale in execution of Stand No 160
Westwood Drive, Westwood, Kambuzuma, Harare, in
spite of the fact
that the appellant had clearly established that the sale ought not to
have taken place in the first place and also
the fact that the amount
of money owing at the point in time that the sale in execution was
conducted was so small as not to warrant
the disposal of the
appellants immovable property by public auction.
The
court a quo
erred by not giving enough weight to the fact that the sum of
$2000.00 had been paid on the 14th
June, 1995 to the
offices of Mr Chingore, only a few days before the date of the sale
in execution.
Although
the Learned Judge in the court a
quo stated that the
appellant was largely the author of his own misfortunes, not enough
weight was given to the appellants desperate
efforts to liquidate
the small amount of money owing and thus save his property from being
auctioned.
Dealing
with the first ground of appeal, there was a court judgment which, it
is common cause, had not been, at the time of the
sale in execution,
satisfied. In the light of this it is difficult to see how it can
be said that the sale in execution should
not have taken place. The
fact that the amount of the debt was small is no ground for rendering
a sale in execution invalid.
While
I certainly sympathise with the applicant that a matrimonial home was
sold in execution for a small debt, it is apparent from
the record
that it was the applicants wife who prevented the sale of movable
assets to satisfy that small debt. To that extent
the learned judge
in the court a quo
was correct in his observation that the applicant was the author of
his misfortune. It is also apparent on the record that the
applicant also participated in the bidding for his house at the
auction but delayed in doing anything to set aside the sale in
execution.
This
was a sale in execution in pursuance of a judgment of the
magistrates court. The High Court rules do not apply to such
a
sale, consequently the court a
quo was correct in
refusing to set aside the sale in execution on the ground that the
sale in execution did not comply with the High
Court rules.
In
the result this Chamber application cannot succeed. It is dismissed
with costs.
Gutu
& Chikowero,
applicants legal practitioners
Mandizha
& Company,
respondent's legal practitioners