GARATI v MUDZINGWA (MAU MAU) & ORS 2008 (2) ZLR 88 (S)

Flynote

Practice and procedure — condonation — application — when application must be made — failure to comply timeously with applicable rule — no need to apply for condonation when no rule breached ?

Practice and procedure — execution — sale — setting aside of — common law right to have sale set aside on good cause shown

Headnote

The appellant's property had been sold to the first respondent in a sale in execution at the instance of the second respondent, a building society. The sale took place in November 2001. In January 2002 the appellant wrote to the third respondent, the sheriff, protesting that the sale price was unreasonably low. In April 2002 the sheriff confirmed the sale in terms of r 359(7) of the High Court Rules 1971. The first respondent, however, did not pay the purchase price immediately. Six months later, the building society expressed its concern about the delay. In January 2003, the price still being unpaid, the appellant wrote to the building society asking it to cancel the sale. The building society in turn asked the sheriff to cancel the sale. On 31 January 2003 the purchase price was finally paid.

On 18 February, the appellant made application for an order setting aside the sale on the ground that there had been an inordinate delay in the payment of the purchase money by the first respondent. He said that because of the hyper-inflationary conditions obtaining in the country, he would lose considerably if the sale in favour of the first respondent were allowed to go through. He also alleged that by failing to take steps to cancel the sale on the ground that the first respondent had failed to pay the purchase price within a reasonable time, the sheriff aided and abetted the first respondent in delaying the payment.

The first respondent averred that the application was made in terms of r 359(8) and so had to have been made within one month after the appellant was notified of the decision of the sheriff. He contended that the application was not properly before the court as it was made outside the time limit. No condonation of non-compliance with r 359(8) had been applied for and granted. The appellant at first disputed that there was any need to apply for condonation, then accepted that he should apply for condonation. His application for condonation was rejected by the High Court.

Held, that an application for condonation is made when there has been failure to comply properly or timeously with a rule under which a party is bound to act in seeking relief from the court. The judge a quo proceeded on the basis that a question of condonation of non-compliance by the appellant with r 359(8) had arisen for determination. In fact, the appellant did not apply to have the sheriff's decision confirming the sale set aside. The main application was for an order setting aside the sale on the ground that the purchase money was paid by the first respondent after an unreasonably long period of time. The ground on which the relief was sought arose after the decision of the third respondent in terms of r 359(7) and was a consequence of the conduct of the first respondent. There was therefore no question of non-compliance for the purposes of founding an application for condonation with a rule the appellant was not bound to comply with in seeking the relief from the court.

Held, further, that under the common law an owner of property which has been sold in execution but not yet transferred may seek an order of restitutio in integrum setting aside the sale on good cause shown. When he applied to have the sale in execution of his property set aside on the ground that the purchase money had been raised and paid by the first respondent after an unreasonably long time, the appellant was exercising this common law right. The judge a quo should have heard and determined the main application.