REPORTABLE (112)

Judgment No. SC 132/02

Civil Appeal No. 216/02

BOBBY MAPARANYANGA v

(1) THE SHERIFF OF THE HIGH COURT

(2) DEAN PERNELL VAN SCHALKWYK

(3) THE REGISTRAR OF DEEDS

(4) STANBIC BANK (ZIMBABWE) LIMITED

(5) ZIMBABWE BANKING CORPORATION LIMITED

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & GWAUNZA AJA

HARARE, NOVEMBER 11, 2002 & MARCH 18, 2003

M Chiwunda, for the appellant

E T Matinenga, for the first respondent

A Chinake, for the second respondent

No appearance for the third, fourth and fifth respondents

GWAUNZA AJA: At the centre of this longstanding and acrimonious dispute is immovable property and land known as Lot 14 of subdivision A of Tynwald South of Fountainbleau, just outside Harare. The appellant and the second respondent each claim rightful title to the property. In doing this, and in challenging the other’s claim, the parties have filed with the High Court and Supreme Court numerous applications and counter-applications, and no less than six different judges have adjudicated upon these applications. The dispute dates back to April 1995, when the property, then registered in the appellant’s name, was attached and sold in execution.

The background to the dispute is as follows –

The appellant, who took title of the property in 1987, borrowed money from, or incurred certain debts with, among others, the fourth and fifth respondents. He defaulted in his repayments, resulting in the property being attached and sold in execution. This was done in terms of a private treaty following an unsuccessful sale by public auction. The second respondent was the buyer.

Pursuant to the sale, the first respondent, who was the Sheriff of the High Court (“the Sheriff”), and the second respondent entered into and signed a standard agreement of sale dated 24 April 1995, the first condition of which read:

“1. That the seller hereby sells to the purchaser who buys the property mentioned above together with all the improvements thereon at a price of $650 000.00, payable on the signing of this agreement.” (my emphasis)

Contrary to this condition, the second respondent paid a deposit of $110 000.00 on 25 April 1995 and $69 900 on 16 May 1995, making a total of $180 000.00. He hoped to raise the balance through a mortgage bond. At the time that the matter was heard in the court a quo no other payments had been effected. The second respondent, however, proceeded to take occupation of the property.

The appellant challenged the validity of this sale, and filed the first application to have it set aside in April 1995. He argued that the price at which the property had been sold was unreasonably low. The application was dismissed by GIBSON J in December of that year. The appellant filed an appeal to this Court, resulting in the suspension of transfer of the property to the purchaser. This appeal was withdrawn in February 1998.

Before the judgment of GIBSON J could be enforced, the appellant filed the present application. Although the propriety of the appellant having done so was raised in the court a quo (given the fact that the appellant could have included the ground upon which he made the present application in the grounds for the first application), the learned trial judge noted that the Rules of the court did not enact a time limit for bringing such an application. He decided to hear the matter in full and decide its merits.

As correctly noted by the learned trial judge, the prosecution of this application has by no means been uneventful. It was first set down before CHIDYAUSIKU  JP (as he then was) on 20 July 1998, but was postponed upon the JUDGE PRESIDENT’S order for a further report from the Sheriff clarifying certain issues, the main one having to do with the fact that, contrary to the agreement of sale concluded between the Sheriff and the second respondent, the latter had not paid the purchase price in full upon signing the agreement. When the matter resumed on 26 November 1998, MUBAKO J postponed it until it was set down again on 1 April 1999. A further postponement was ordered on that day and the appellant was put on certain terms. He failed to comply, whereupon default judgment was entered against him on 4 June 1999. He thereafter successfully applied for rescission of this judgment before ZIYAMBI J (as she then was). The learned judge was satisfied the appellant had, on the merits of the case, shown good and proper cause for the setting aside of the default judgment. It is pertinent to set out ZIYAMBI J’S assessment of the matter at that stage:

“Whatever the correct procedure may be adjudged to be, the applicant does raise issues which could result in the application being determined in his favour – the main observation being that, contrary to the terms of the agreement of sale, the purchase price was not paid at the time of signature of the agreement and before instructions were given to legal practitioners for the transfer of the property to the second respondent.

It is also noteworthy that although this was a sale in execution and the proceeds were to be applied to the liquidation of the applicant’s debts to the judgment creditor as well as other participating creditors, it has not been possible to make payment to the said creditors out of the proceeds of the sale, since the purchase price has not been paid by the respondent.”¹

The application was finally heard in the court a quo on 10 May 2000. The appellant advanced two main grounds for challenging the sale of the property to the second respondent.

The first ground was that the sale was invalid for want of consent given by the appellant, as required by subrule 358(1) of the Rules of the High Court. After citing the relevant rule and determining that the sale had in effect been conducted in terms of subrule 358(2), the learned trial judge, in my view quite correctly, rejected this contention.

The second ground raised by the appellant was that the failure by the second respondent to pay the purchase price of the property in full upon the signing of the agreement of sale with the Sheriff was fatal. This ground fell under the ambit of “any other good ground” under rule 359. The learned trial judge, after examining a number of features and developments in the case, rejected this ground too.

The learned trial judge then dismissed the application and ordered the appellant to surrender the title deeds to the property to the Sheriff, failing which the Sheriff was authorised to sign all such documents in place of the appellant as may be necessary to effect transfer into the name of the second respondent. The latter was also ordered to pay $450 000.00, being the balance of the purchase price, such price being tendered as against transfer of title, failing which the sale in execution would be deemed to have been cancelled. The appellant was ordered to pay costs on the higher scale.

The appellant then filed this appeal. Before it could be heard, the second respondent, presumably having complied with the part of the High Court order requiring him to pay the balance of the purchase price and not having received the original title deeds from the appellant, took transfer of the property in question. The first respondent, also in compliance with the High Court order, had signed the relevant transfer documents. Both actions amounted, effectively, to the enforcement, pending appeal, of the judgment now being appealed against. More on that later.

The case attracted considerable media publicity. Pressure groups advancing a position in support of the appellant’s case were drawn into the fray. At one point, neither the second respondent nor the appellant were in occupation of the property, such privilege having been taken by members of one of the pressure groups. The second respondent successfully applied for a spoliation order against the pressure group. Each party accused the other of threats to and against the other’s life. The second respondent was forced to leave the country, while the appellant was compelled to seek an order from the court to allow him back into the house in order to “preserve it” in the light of reports of vandalism. This application was not pursued since the date of hearing of the matter was imminent.

Mr Charles Nyatanga (“Nyatanga”), in his capacity as the Acting Sheriff of the High Court, was vilified for his part in the sale, which was perceived to have been biased against the appellant, if not criminal. He was even threatened with prosecution for fraud. This, and the points that the former Sheriff had raised in his supplementary report, prompted the judge in the court a quo to call Nyatanga to give oral evidence on his rôle in the matter. After hearing Nyatanga, the learned trial judge noted he was satisfied that the former had acted throughout:

“in the impartial and professional manner required of his office and had taken all decisions in good faith and in accordance with his reasonable view of the rights of the matter”.

Having read the evidence before the court, I agree with the learned trial judge that Nyatanga acted in good faith and genuinely believed he was acting in the interest of all the parties.

Despite the tensions generated in this dispute, and the many other aspects of it that exercised the learned trial judge’s mind, the matter in the final analysis fell, and falls, to be determined on one issue. This is whether the failure of the Sheriff and the second respondent to adhere strictly to the terms of the agreement of sale entered into between themselves, in particular the requirement that the full purchase price be paid upon signing of the agreement of sale, constitutes a ground for setting aside the sale in question in terms of rule 359 of the Rules of the High Court.

I will digress at this juncture to consider the application made by the appellant to adduce fresh evidence on appeal. The application was opposed by the first and second respondents, and judgment on it was reserved until this judgment.

The fresh evidence sought to be adduced by the appellant on appeal was correspondence meant to prove that he had since paid off all his creditors, with the exception of the Commercial Bank of Zimbabwe, with which he had entered into an agreement for payments in instalments. It was also meant to show that, contrary to the first respondent’s evidence, no creditors had been paid from the proceeds of the sale of the property to the second respondent. The appellant averred that he had not placed the evidence in question before the court a quo because he had failed to locate the relevant receipts, since they had been left behind in the disputed property.

The opposition to the application was raised primarily on the ground that in none of the documents filed as proof of payment was it indicated when the creditors in question had actually been paid. The time of payment of the debts said to have been paid by the appellant was, of course, relevant. The second respondent submitted, correctly, that if the payment had been effected after the sale in execution and the preparation of a plan of distribution, then such payment did not constitute a basis for setting aside the sale.

The application was also opposed on the ground that the evidence sought to be adduced on appeal could have been obtained before the application was heard in the court a quo. Also, that the issue of whether or not the creditors had been paid was not relevant to the determination of whether or not the failure by the first and second respondents to adhere strictly to the terms of the signed agreement of sale justified the setting aside of the sale of the property.

While I am not entirely satisfied that the evidence sought to be adduced could not have been obtained earlier, I am greatly persuaded by this latter argument. The relief sought in the court a quo and in this appeal is that the sale in execution be set aside, not because the appellant has paid all the debts owed, but because the first and second respondents breached the terms of their agreement of sale, resulting in the objective for conducting the sale in the first place – i.e. settlement of the judgment debts – being defeated. While proof of payment of the appellant’s debts might in other circumstances serve to bolster his case for the setting aside of the sale, and perhaps serve to confirm that the purpose of the sale in execution had indeed been defeated, it is not a necessary consideration in the determination of the issue at hand. This finding finds support in Herbstein and Van Winsen’s The Civil Practice of The Supreme Court of South Africa², where it is noted that among the principles applied in deciding whether to allow a party to adduce further evidence on appeal are – (i) that the evidence must be weighty, material and presumably worthy of belief, and must be such that, if adduced, it will be practically conclusive; and (ii) that justice requires such a course. These two principles are not met in casu considering the issue that has to be determined.

For these reasons, the application by the appellant to adduce fresh evidence on appeal is dismissed.

To go back to the matter at hand. The appellant submits, while the first and second respondents deny, that the failure of the first and second respondents to adhere strictly to the terms of the agreement of sale they signed constituted a ground for setting aside the sale. The learned trial judge was persuaded by the arguments advanced on behalf of the first and second respondents. He noted at p 20 of the cyclostyled judgment that:

“It is unfortunate that the agreement was recorded on a standard form of contract which did not accurately record the terms of sale agreed upon. Had the dispute arisen between the Sheriff and the purchaser, this failure may have been extremely damaging. It is not, however, a circumstance affecting the regularity of the sale nor the validity of the contract.

It is, nevertheless, necessary to comment critically upon this aspect. By using the pro forma contract, and not producing a written memorandum that accurately records the terms agreed, the Sheriff’s office has laid itself open to charges of irregularity and to the perception of collusion. It has been to an extent responsible for the prolongation of this litigation and the consequent delay in distribution. Upon examination, I am satisfied that there was no intention to conceal the true terms; nor to favour the purchaser; nor to act wrongfully in any way. I accept the explanation that the standard form was used as a matter of course and that the terms agreed are quite normal. Yet I must hasten to add, that being the case, that in future standard forms should not be used unamended where they do not reflect the actual agreement. In future, the written contract must reflect the precise terms of the sale.”

As indicated later in this judgment, I do not agree that the breach did not affect the regularity of the sale in question. I also do not regard the standard agreement of sale as inferior to, nor less binding than, any other contract properly entered into by the contracting parties. Consequently I am satisfied the consequences of disregarding a material term of such contract are a lot more drastic than those suggested by the learned trial judge. Because of the nature of the contract in question, the consequences are not, in my view, mitigated by the fact that the dispute did not arise between the signatories to the contract.

The evidence of Nyatanga, which the learned trial judge accepted, was that despite signing the agreement of sale, he and the second respondent nevertheless considered themselves, in effect, to be bound by the terms of payment outlined in the second respondent’s offer of purchase. In other words, the signing of the standard contract of sale was regarded as a mere formality, devoid of the binding force that the signing of any other contract would normally have.

That this should not have been the case is, ironically, suggested by Nyatanga himself in his viva voce evidence in the court a quo. He stated:

My lord, it is a standard practice in the Sheriff’s office that if you are proceeding in terms of Rule 358(2), the Sheriff has to have some form of agreement and that is a standard agreement which has been there, is there and still continues to be used for the disposal of properties under private treaty.” (my emphasis)

It is not in dispute that despite this acknowledged practice in his office, Nyatanga went outside this practice and sought to dispose of the property according to terms he said were negotiated separately with the buyer, i.e. the second respondent.

However, a closer analysis of these other terms reveals that they, too, fell outside what Nyatanga and the second respondent averred was understood between them. This was that payments would be effected according to the terms outlined in the second respondent’s offer of purchase. According to that offer, a deposit of $180 000.00 was to be paid as follows –

$110 000.00 on 5 April 1995; and

$70 000.00 on 11 April 1995.

The balance of $450 000.00 was to be paid against registration of transfer. Contrary to this offer, the first instalment of $110 000.00 was, according to the receipt, paid on 25 April 1995; while $69 900 was paid on 16 May 1995. The balance of $450 000.00 was still to be paid at the time this matter was heard in the court a quo.

The departure from the terms offered by the second respondent disproved his evidence and that of Nyatanga that they had, despite signing the standard contract of sale, continued to regard themselves as bound by the terms of his offer of purchase. More significantly, however, this departure suggests that the office of the Sheriff set out to dispose of the immovable property in question without reference to any written terms of agreement since, in reality, neither the standard agreement of sale nor the second respondent’s offer of purchase (whatever its merits) were followed.

While no explanations were tendered in respect of the failure to follow the offer of purchase, much, as already indicated, was said as explanation for not adhering to the terms of the standard contract of sale. This was, in effect, that cash buyers of immovable property were rare, that mortgage finance, normally paid upon transfer, was consequently the norm and that the Sheriff had been satisfied that payment of the balance of the purchase price had been adequately guaranteed.

These explanations must be considered against the background that the Sheriff’s office, as a matter of administrative expediency, required not only that the Sheriff and the purchaser in circumstances such as those at hand, sign a standard contract of sale, but that both parties observe the terms thereof. From a contractual point of view, having signed such contract, both parties were bound by and obliged to adhere to its terms. The second respondent must have fully understood the terms of the contract before he signed it. In the absence of any of the defences available to a signatory who wishes to escape liability under a contract – misrepresentation, fraud, illegality, duress, mistake – he cannot now be heard to say he is was not bound by the contract. That the contract was in the form of a standard agreement of sale in no way detracts from its validity as a binding contract. It can hardly have been in the contemplation of the drafters of the standard contract that it would be signed as a mere formality, nor that after signing it the parties would proceed with impunity to contravene its provisions. It is not, in my view, unreasonable to suppose that the standard contract, and the requirement for signing it, were designed with the purpose of preventing, among others, the very action (and its consequences) that the Sheriff and the second respondent took in this case. No doubt the standard contracts were conceived out of the recognition that sales of immovable property, involving as they generally do, huge amounts of money and complex conditions, needed to be handled in such a manner as to minimise disputes related to such conditions. As correctly pointed out by the learned trial judge, the failure by the Sheriff, as the author of the pro forma contract, to enforce its terms has led to that office being accused of irregular conduct and collusion with the second respondent. That conduct, it hardly needs mentioning, forms the basis of the appellant’s claim in these proceedings.

If the wish of the Sheriff was to negotiate terms of sale based on the prevailing downturn in market demands, he should have considered amending the standard contract so that it responded to the situation obtaining on the ground, rather than leave the parties to sign the contract as a formality.

The learned trial judge was satisfied that there was no breach of the contract by the purchaser when he failed to pay the full purchase price on signature of the contract. He observed as follows at p 18 of the cyclostyled judgment:

“Payment of the first part of the deposit, according to a report by the former Sheriff, was made on signing of the sale agreement but only receipted thereafter. Thus no material breach by the purchaser is there disclosed. Payment of the second part of the deposit was delayed and it may be that the Sheriff could have cancelled the sale for this apparent breach. It was perfectly proper not to do so, however, given the difficulty encountered in selling the property and given that the fundings for the mortgage had been secured.”

I do not agree. Firstly, the agreement signed by the parties provided that the full purchase price, not only part of it, was to be paid upon the signing of the agreement. By not paying the full amount as envisaged by the contract, the second respondent clearly breached a material term of the agreement. Secondly, the Sheriff, according to the contract, would have been perfectly within his rights to cancel the agreement at the time the first partial payment was made. The agreement envisaged neither a deposit nor subsequent payments, so the question of delayed payment of part of the deposit did not arise. Thirdly, the provision of the contract requiring transfer against payment of the full purchase price was explicit in its terms and did not admit of payment through a mortgage.

The learned trial judge was also satisfied no blame attached to the purchaser and that he had performed his obligations under the contract with the Sheriff.

Again, I do not agree. The second respondent, who cannot have been mistaken as to the contents of the contract that he signed, undertook to pay the full purchase price upon signing. He did not do so, but offered, instead, delayed, staggered and insufficient payments. The fact that the Sheriff condoned and even abetted this departure by the second respondent from the terms of the contract does not in any way alter the fact that breach the contract he did.

The situation that then presents itself is one where two parties signed a contract providing for one thing, but, with one condoning the other’s material breach thereof, they proceeded to do the opposite of what the contract provided. They sought to persuade the court a quo to condone this departure from the signed contract, and accept that they had all along been ad idem as to the other terms they wished to be bound by. This was despite the fact that an analysis of what was tendered as written proof of such other terms revealed that these, too, were not complied with.

It is argued for the second respondent, despite this background, that it does not lie in the “mouth of a third party, unconnected to the contract,” to claim that the contract was breached, when the very parties to the contract express their consensus ad idem and both consider themselves bound by the contract.

I am not persuaded by this argument. Had the contract in question not been one in which other people had vested interests, the mutual departure from its material terms by the parties thereto might not have been of any moment. Such, however, is not the case in casu. Unlike in normal contracts of sale, where the seller is synonymous with the owner of the asset being sold, or his duly authorised agent, the first respondent was neither the owner of the property nor his duly authorised agent. He was, in effect, an agent of the court in the process of execution. His rôle in signing the contract of sale was a facilitative one. The money that was to be paid as the purchase price was to be promptly paid to the judgment creditors concerned, in order to settle the debts owed to them by the judgment debtor, in this case, the appellant. To the extent that the judgment creditors expected to be paid in this manner, hopefully in full, and the judgment debtor, by that token, expected, finally, to be freed from his debts, all clearly had a vested interest in the contract of sale in question. This interest is what “connected” them to the contract in question.

That the judgment creditor and debtor have an interest in this type of sale is very aptly highlighted in the following passage from Mackeurtan’s Sale of Goods in South Africa,³ which appears under the heading “Common law duties of officers conducting judicial sales”:

“… The officers of execution must take due care of the articles to be sold, and it is their duty to obtain as high a price as possible. Their responsibility is first to the judgment creditor and secondly, to the debtor. … They must pay over the price to the creditors to the extent of their debts and the balance to the debtor. … If they deliver goods to the purchaser without getting payment, the risk of his default is theirs, for they are under obligation to exact the price on the spot.” (my emphasis)

While such interest normally relates to the price offered for the property, it is not, in my view, unreasonable (and this is confirmed in the passage cited above, by the words “on the spot”) for either party to seek to protect their interest by demanding that the mode of payment agreed between the Sheriff and the buyer is such as would result in the immediate fulfilment of their expectations as outlined above.

The interest of the judgment creditor and debtor is put beyond doubt by rule 359 of the High Court Rules, which gives a person with such an interest in the sale the right to challenge it on, among others, any good ground shown.

It hardly needs emphasising that in negotiating a sale of immovable property by private treaty in circumstances such as those obtaining in casu the Sheriff must always be conscious of the vested interest and rights that other people have in the property that he sells in execution, including that sold in a private treaty. As evidenced by the standard agreement of sale, the Sheriff’s office was, indeed, alive to the peculiar and sensitive dynamics surrounding sales of this nature. The standard agreement was clearly meant to minimise controversy. By embodying the common law duties of officers conducting judicial sales, it was designed also to facilitate the smooth transfer of the property in question to the buyer, while at the same time ensuring that the interests of the judgment creditor and debtor, as already outlined, were protected.

No matter how well intentioned Nyatanga was (and I agree with the learned trial judge that he did mean well), the fact remains that the various actions he took in this case amounted to a serious breach of both the rules his office had specifically prescribed for the conduct of sales of this nature, and the common law duties of officers of judicial sales. His actions also resulted in a material breach of the contract that he entered into in his official capacity, with the buyer, i.e. the second respondent.

What the Court has to decide in the light of this breach or omission is whether it constitutes a good ground for the setting aside of the sale in question, as prayed by the appellant. In determining this issue, I find the following passage from Mackeurtan’s Sale of Goods in South Africa⁴, to be instructive:

“… it is not every formality the omission of which will give rise to the right under discussion (to set aside a judicial sale), for as Matthaeus observes, although the formalities of a judicial sale must be observed to a nicety (ad unguem), if only an unessential or unimportant formality has been omitted, the sale will not thereby be vitiated. The reasons for this, he says, are the maxim minima praetor non curat and the fact that it is not consonant with good faith to wrangle over infinitesimal points of law (de apicibus finis) (Ex parte Roberts 3 SC 208).”

This rule can be applied with equal force to situations, like the present, where rather than an omission, there was breach of formalities to be followed. As indicated, the breach was neither unessential nor unimportant. It was material. Unlike the learned trial judge who in his discretion ruled otherwise, I am satisfied the ground on which the appellant’s claim is premised is a good ground.

The second respondent failed to comply strictly with the condition that the purchase price was to be paid upon the signing of the contract. Instead, he offered an alternative mode of payment. The learned trial judge was satisfied no material breach of the contract was thereby committed. Without spelling it out in so many words, he was, effectively, also satisfied that under the circumstances of this case, the alternative mode of payment offered and guaranteed was equivalent and equally effective to the one stipulated in the contract. I am not satisfied, on the facts presented, that this conclusion was based on a correct interpretation of the law.

Christie, in his book The Law of Contract in South Africa,⁵ refers to performance effected in exactly the manner specified in the contract as being in forma specifica and that effected in some equivalent manner that is equally effective as being per aequipollens. Asserting that the distinction between the two is not always easy to make, the learned author offered, among others, the following guidelines (as per CLAASEN J in Van Diggelen v De Bruin)⁶ for determining the issue –

(i) if the circumstances (surrounding the case) afford no clue, then there is a presumption that the condition must be performed in forma specifica (Wessels para 1337; Pothier Oblig. 206). This presumption is rebuttable by the promissor, but it cannot be rebutted where it is clear from the terms of the contract and the surrounding circumstances that performance in forma specifica was stipulated in the contract (Wessels paras 2638-9) (my emphasis); and

(ii) the act or performance tendered per aequipollens, where such is permissible, must in the first instance be an equivalent act to that mentioned in the contract or be of such a nature that it can make no material difference to the promissee.

Applying this test to the case at hand, it is evident that the second respondent could not have rebutted the presumption that the condition in the contract concerning immediate payment of the purchase price, had to be performed in forma specifica. The nature of, and circumstances surrounding, a sale in execution are such that, in the absence of agreement to the contrary, full, and not staggered, payment is required. Nor, on the same authority cited above, can it be said that the payments effected by the second respondent were equivalent to the full payment stipulated in the contract. There can also be no doubt that such mode of payment as was offered and effected by the second respondent made a material difference to the parties concerned. In addition to whatever else may have contributed to it, this failure to implement the condition to the letter resulted in a situation where the creditors were not paid and remained unpaid five years later when the matter was argued in the court a quo. Conversely, and by the same token, the appellant’s debts were not paid and, on the evidence before the court a quo, he had to raise funds to pay some of the debts himself.

I am thus satisfied, on a proper consideration of the evidence before the court, that the second respondent failed to satisfy both of the tests outlined above.

There is one argument advanced on behalf of the second respondent that calls for comment. It is contented for him that for public policy reasons a result allowing the sale in casu to be set aside would bring the entire system of judicial sales in execution into disrepute. It is submitted further in this regard that the public at large would lose “entirely” the confidence which it has had up to now in this well established device which “for decades” facilitated the recouping of debts owed to banks and the like.

I am not persuaded, given the facts and circumstances of this case, that setting aside this sale would have the undesirable outcome described in the second respondent’s heads of argument.

The Court is concerned with interpreting the law and dispensing justice. That being the case, and in relation to the subject of this case, a situation resulting in the system of judicial sales being brought into disrepute would clearly not be desirable. The purpose of sales in execution is, in law, quite clear. The common law duties of officers involved in judicial sales are also trite. The rules of the court and certain administrative measures, like the standard contract of sale in casu, are formulated with the object of ensuring that the purpose of such sales is achieved. In the case where the common law, the rules of the Court and the administrative requirements of an office responsible for enforcing judgments are flouted, the Court would be failing in its duty if it condoned such disregard of the law and rules. It would be doing exactly that were it to allow the sale in question to stand.

It is crucial, for the proper performance of their work, that officers of the law comply with, rather than pay lip service to, the procedures designed to guide them in the performance of their duties. Needless to say, strict adherence to such rules and procedures would enhance public confidence in the system of judicial sales.

When all is said and done, I am satisfied that the appellant proved his case and was entitled to judgment in his favour. The order of punitive costs against him was unwarranted, even taking into account the actions attributed to him that resulted in the final determination of this matter being so inordinately delayed. The second respondent is entitled to a refund of all the money that he paid as the purchase price of the property. The transfer of the property into his name should not have been effected in the light of the appeal then pending before this Court. Title to the property should have stayed with the appellant. The effect of the judgment in this appeal is therefore to nullify such transfer and restore the status quo prevailing before that transfer.

In the premises, it is ordered as follows –

1. The appeal is allowed with costs.

2. The Deed of Transfer No. 6184/2001 registered in favour of the second respondent on 28 June 2001 be and is hereby cancelled.

3. The Deed of Transfer No. 255/87 registered in the name of the appellant on 16 January 1987 be and is hereby revived.

4. The third respondent be and is hereby directed, in respect of the relevant documents, to make the endorsements and entries necessary to give effect to paragraph 3 of this order.

5. The order of the court a quo is set aside and is substituted with the following –

“(a) The sale by private treaty concluded between the first and second respondents on 24 April 1995 and in respect of Lot 14 of Subdivision A of Tynwald South of Fontainbleau, be and is hereby set aside;

(b) The second respondent shall pay the costs of this application.“

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

Mapfumo & Partners, appellant's legal practitioners (In forma pauperis)

Kantor & Immerman, first respondent's legal practitioners

Atherstone & Cook, second respondent's legal practitioners