RAMWIDE INVESTMENTS (PVT) LTD v RONDEBUILD ZIMBABWE (PVT) LTD & ORS 2016 (2) ZLR 166 (H)

Flynote

Practice and procedure: " C application " urgent " matter struck off as not being urgent " whether matter requires to be re-enrolled

Practice and procedure: " execution " sale " setting aside of " grounds " purchase by third party who is not bona fide " failure to advertise " need to show that such irregularities resulted in a lower price if sale is to be set aside

Practice and procedure: " striking off roll " urgent application " matter struck off as not being urgent " whether matter requires to be re-enrolled

Headnote

The applicant sought to set aside a sale in execution of movable goods. Before the main matter could be heard a point in limine was raised by the respondent, claiming that the matter had been struck off the roll previously and hence it was necessary for the applicant to re-apply to place it on the roll. The applicant argued that the matter had been struck off as urgent but remained on the normal roll, hence there was no need to apply to re-enrol the matter.

On the main issue, the applicant sought to set aside a sale in execution on the grounds that the purchaser of the property was an interested party, the property was not properly valued by the messenger, the auctioneer did not adequately advertise the property and hence a low price had been obtained.

Held, that there is no High Court rule covering this situation. There is a distinction between striking a matter off because it is defective and the present situation. Since the matter had been struck off the urgent roll, but had not been deemed defective, it was simply transferred to the normal roll, and as there was no prejudice to anyone, the hearing could proceed.

Held, further, that on the facts the purchaser was not a bona fide third party, hence was not protected by vindication. The property had not been adequately advertised. However, valuation does not necessarily have to be done formally in writing, and the respondent had not brought any evidence to show that the interested nature of the purchaser and the failure to advertise had affected the sale price. Hence the sale could not be set aside.