REPORTABLE ZLR (1)

Judgment No. SC 1/03

Civil Appeal No. 249/02

MARGARET MALAWUSI v

(1) SLADEN MARUFU (2) WINTERTONS

(3) THE SHERIFF FOR ZIMBABWE

(4) THE REGISTRAR OF DEEDS N.O.

(5) EAGLE ESTATE AGENTS (PRIVATE) LIMITED

(6) BEVERLEY BUILDING SOCIETY

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & ZIYAMBI JA

HARARE, JANUARY 14 & FEBRUARY 4, 2003

F Girach, for the appellant

O C Gutu, for the first respondent

No appearance for the second respondent

No appearance for the third respondent

No appearance for the fourth respondent

No appearance for the fifth respondent

No appearance for the sixth respondent

SANDURA  JA: This is an appeal against a judgment of the High Court which ordered the appellant to transfer to the first respondent (“Marufu”) her immovable property in Milton Park, Harare, (“the property”) which had been bought by Marufu at a public auction. The property had been mortgaged to the sixth respondent (“Beverley”) by the appellant who subsequently defaulted in paying the monthly instalments to Beverley.

The factual background is as follows –

1. On 20 April 1999 Beverley instituted civil proceedings against the appellant claiming payment of the balance due in terms of the mortgage bond, and a judgment was subsequently granted in its favour.

2. On 15 July 1999 a writ of execution was issued at Beverley’s instance, and the property was subsequently attached.

3. On 13 January 2000 Ms Mahlunge (“Mahlunge”), then a partner in the second respondent (“Wintertons”), a law firm acting for Beverley, wrote to the third respondent (“the Sheriff”) instructing him to sell the property by public auction.

4. On 20 February 2000 the appellant died.

5. On 22 February 2001 the Sheriff wrote to Wintertons informing them that the property would be sold by public auction on 4 May 2001.

6. On 12 March 2001 Beverley wrote to Wintertons informing them that the arrears on the appellant’s account as at that date were $17 467.71 and urging them to proceed with the sale in execution. The letter was copied to the appellant, which would suggest that Beverley was not aware that the appellant had died.

7. On 9 April 2001 Mahlunge purportedly wrote to the Sheriff instructing him to cancel the sale. However, the letter does not form part of the record, and the Sheriff denied receiving it.

8. On 4 May 2001 the property was sold by public auction. Marufu, who bid $3 000 000.00 for the property, was the highest bidder.

9. On 4 June 2001 the Sheriff declared Marufu the purchaser of the property.

10. On 8 June 2001 the Sheriff wrote to Wintertons advising them that he had, on 4 June 2001, declared Marufu the purchaser of the property, and that if no objections were made to him in writing within fifteen days from the date of the declaration of the purchaser he would confirm the sale. The letter was copied to the fifth respondent (“the auctioneer”), Marufu and the appellant.

11. On 12 June 2001 a Certificate of Executorship was issued to Margaret Malawusi (“the executrix”) by the magistrate's court at Harare.

12. On 4 July 2001 the Sheriff, having received no objection to the confirmation of the sale of the property to Marufu, confirmed the sale.

13. On 6 July 2001 the Sheriff wrote to Wintertons informing them that as no objection had been received the sale of the property to Marufu had been confirmed on 4 July 2001. The letter was copied to the auctioneer, the appellant and Marufu.

14. On 25 July 2001 Wintertons sent to Marufu a pro forma account indicating that the purchase price of $3 000 000.00 had been paid in full, and calling upon Marufu to pay the transfer fees of $222 622.50.

15. On 27 July 2001 Wintertons submitted the documents relating to the transfer of the property to the Sheriff for his signature.

16. On 31 July 2001 Marufu paid the transfer fees of $222 622.50 to Wintertons.

17. On 24 August 2001 Mahlunge wrote to the Sheriff requesting him not to confirm the sale. In that letter she stated that when she received the Sheriff’s letter confirming the sale, and later received the instruction that Wintertons should attend to the transfer of the property, she overlooked the fact that on 9 April 2001 she had written to the Sheriff instructing him to cancel the sale.

18. On 29 August 2001 the Sheriff wrote to Wintertons referring to their letter of 24 August 2001 and informing them that as they had cancelled the sale, which had already been confirmed, they were obliged to refund to Marufu the auctioneer’s commission of $13 929.00 which Marufu had already paid.

19. On 6 September 2001 Wintertons refunded to Marufu the transfer fee of $222 622.50 by cheque. The cheque was accepted on a without prejudice basis by Marufu, who later sought legal advice and challenged the purported cancellation of the sale.

20. On 19 September 2001 the Sheriff, after carefully considering the matter, wrote to Wintertons informing them that he had changed his mind and that as the sale had already been confirmed it could only be cancelled pursuant to a court order. In the circumstances, he instructed them to proceed with the transfer of the property to Marufu. In addition, he informed them that he had not received the letter dated 9 April 2001 instructing him to cancel the sale.

21. On 26 October 2001 the Sheriff signed the relevant transfer documents.

22. Finally, on 29 October 2001 Marufu filed a court application in the High Court seeking an order compelling the appellant to attend to the registration of the transfer of the property to him. The application was opposed by the appellant, but was not opposed by the second, third, fourth, fifth and sixth respondents. However, the order sought was subsequently granted. Aggrieved by the result, the appellant appealed to this Court.

At the hearing of this appeal it was submitted on behalf of the appellant, as set out in the appellant’s heads of argument, that the learned judge in the court a quo had erred:

“1. in failing to take (into) account that Wintertons as the agent for the judgment creditor had instructed the Sheriff to cancel the sale;

2. in holding that the sale was valid notwithstanding the prior death of the deceased (the appellant);

3. in finding that this was a case in which to exercise its discretion by ordering specific performance; and

4. by failing to hold that this was a proper case in terms of rule 359 of the Rules (of the High Court, 1971) (in which to hold) that the sale in execution should be set aside.”

I shall consider the four grounds of criticism in turn.

The first ground, i.e. that the learned judge failed to take into account the fact that Wintertons had instructed the Sheriff to cancel the sale, has no merit. That is so because the appellant did not adduce any evidence to show that the letter purportedly written on 9 April 2001 and instructing the Sheriff to cancel the sale was received by the Sheriff. The Sheriff denied receiving it, and nothing indicated that he had in fact received it.

In addition, what happened after 9 April 2001 is inconsistent with the letter having been sent to the Sheriff.

In the first place, as already stated, on 8 June 2001 the Sheriff wrote to Wintertons advising them that he had, on 4 June 2001, declared Marufu the purchaser of the property, and that if no objections were made to him in writing within fifteen days from the date of the declaration of the purchaser he would confirm the sale. Wintertons did not object to the confirmation of the sale.

Secondly, on 6 July 2001 the Sheriff wrote to Wintertons informing them that, having received no objection, he had confirmed the sale of the property to Marufu on 4 July 2001. Again, there was no protest from Wintertons.

Thirdly, on 25 July 2001 Wintertons sent to Marufu a pro forma account calling upon him to pay the transfer fee of $222 622.50, which was subsequently paid on 31 July 2001. If Wintertons had instructed the Sheriff to cancel the sale, they should not have called upon Marufu to pay the fee.

Fourthly, on 27 July 2001 Wintertons submitted the documents relating to the transfer of the property to the Sheriff for his signature. Again, if they had instructed the Sheriff to cancel the sale, they should not have sent the transfer documents to him requesting him to sign them.

In my view, the events set out above are inconsistent with the allegation that the letter instructing the Sheriff to cancel the sale was sent to him. The explanation by Mahlunge that she had forgotten that she had sent the letter to the Sheriff instructing him to cancel the sale is unacceptable.

I now wish to deal with the second ground relied upon by counsel for the appellant. It was submitted that the learned judge in the court a quo erred in holding that the sale was valid notwithstanding the fact that the appellant died before the sale was conducted.

What is in issue here is the interpretation of s 44 of the Administration of Estates Act [Chapter 6:01] (“the Act”). The section reads:

“44. Suspension of execution against deceased estate

(1) No person who has obtained the judgment of any court against any deceased person in his lifetime, or against his executor in any suit or action commenced against such executor, or which, having been pending against the deceased at the time of his death, has thereafter been continued against the executor of such person, may sue out or obtain any process in execution of any such judgment before the expiration of the period notified in the Gazette in manner in this Act provided.

(2) No such person as aforesaid shall sue out and obtain any process in execution of any such judgment as aforesaid within six months from the time when letters of administration have been granted to the executor against whom execution of such judgment is sought without first obtaining an order from the Court or some Judge thereof for the issue of such process."

Mr Girach, who appeared for the appellant, submitted that the section affects not only the issuing of a writ of execution after the death of a judgment debtor, but also the continuation of the process of execution where the writ of execution was issued before the death of the judgment debtor, as in the present case. In other words, he submitted that the appellant’s death stopped the execution of the judgment granted in favour of Beverley. I respectfully disagree.

In my view, the section is clear and unambiguous. Subsection (1), in relevant part, reads:

“No person who has obtained the judgment of any court against any deceased person in his lifetime … may sue out or obtain any process in execution of any such judgment …”. (emphasis added)

Clearly, what is prohibited is suing out or obtaining a writ of execution after the death of the judgment debtor.

Subsection (2), in relevant part, reads:

“No such person … shall sue out and obtain any process in execution of any such judgment … without first obtaining an order from the Court or some Judge thereof for the issue of such process.” (emphasis added)

Again, subs (2) makes it clear beyond doubt that what is affected is suing out and obtaining any process in execution of the judgment after the judgment debtor’s death. In other words, what is affected is applying for and obtaining the writ of execution after the debtor’s death.

Neither subs (1) nor subs (2) affects the continuation of the process of execution where the writ was issued before the debtor’s death, as was the position in the present case.

In this case, it was common cause that the writ of execution was issued on 15 July 1999. The appellant (the judgment debtor) died on 20 February 2000. The property in question was sold by public auction on 4 May 2001 and the letters of administration were granted on 12 June 2001.

In the circumstances, there is no merit in the second ground relied upon by counsel for the appellant.

I will now deal with the third and fourth grounds relied upon by counsel. These were that the learned judge should not have exercised his discretion and ordered specific performance, and that the sale ought to have been set aside in terms of rule 359 of the High Court Rules, 1971.

In my view, the submission that the learned judge should not have ordered specific performance has no validity. Counsel for the appellant did not indicate in what way the learned judge had improperly exercised his discretion. The fact that the amount owed by the appellant was small when compared to the value of the property sold by public auction is irrelevant.

Finally, rule 359 of the High Court Rules, 1971, in relevant part, reads as follows:

“359. Confirmation or setting aside of sale

(1) Subject to this rule, any person who has an interest in a sale in terms of this Order may request the Sheriff to set it aside on the ground that –

(a) the sale was improperly conducted; or

(b) the property was sold for an unreasonably low price;

or on any other ground.

(2) A request in terms of subrule (1) shall be in writing and lodged with the Sheriff within fifteen days from the date on which the highest bidder was declared to be the purchaser …

Provided that the Sheriff may accept a request made after that fifteen day period but before the sale is confirmed, if he is satisfied that there is good cause for the request being made late.” (emphasis added)

In this case, the sale was properly conducted and there is no allegation that the property was sold for an unreasonably low price. The sale was conducted on 4 May 2001 and Marufu was the highest bidder. On 4 June 2001 the Sheriff declared Marufu the purchaser of the property.

Subsequently, when the Sheriff did not receive any objection to the confirmation of the sale he confirmed it on 4 July 2001. Thereafter, Marufu paid the purchase price of $3 000 000.00 and the transfer fee of $222 622.50. And on 26 October 2001 the Sheriff signed the transfer documents. No request to set aside the sale had been made in terms of rule 359.

In the circumstances, there are no equities in favour of the appellant which would warrant the setting aside of the sale.

The appeal is, therefore, dismissed with costs.

CHEDA JA: I agree.

ZIYAMBI JA: I agree.

Scanlen & Holderness, appellant's legal practitioners

Gutu & Chikowero, first respondent's legal practitioners