DAVID TENDAYI MATIPANO
GOLD DRIVEN INVESTMENTS (PRIVATE) LIMITED
SUPREME COURT OF ZIMBABWE
MALABA DCJ, ZIYAMBI JA & GOWORA JA
HARARE, NOVEMBER 29, 2012 & MARCH 24, 2014
Mrs J B Wood, for the appellant
C Muchenga, for the respondent
GOWORA JA: On 9 March 2011 the High Court granted an order of provisional sentence in the sum of USD 2 322 089.52 against the respondent in favour of Metropolitan Bank Zimbabwe (Pvt) Ltd. The respondent, who was cited as the defendant, was in default of entry of appearance to defend. Pursuant to that judgment, the judgment creditor caused a writ to be issued on 14 April 2011 for the payment of the debt.
David Tendayi Matipano, the appellant, was the Deputy Sheriff for Harare. Acting on instructions from the lawyers of the judgment creditor, on 14 April 2011 the Deputy Sheriff attached 634 600 tonnes of tobacco at the premises of the respondent. On 29 April 2011 the Deputy Sheriff conducted a sale in execution of the tobacco stocks. However, the proceeds of the sale were insufficient to settle the judgment debt. Consequently, on 3 May 2011 the Deputy Sheriff attached more tobacco stocks in a bid to raise the sum of USD 2 322 089. 52. A sale by public auction of the attached stocks was scheduled for 20 May 2011. Prior to the scheduled date of the sale, the respondent and the judgment creditor agreed that the stocks were to be sold by private treaty in order to realise a better price. On 30 May 2011 a sale by private treaty of the stocks was concluded by the respondent and the buyer and payment was effected.
On 19 May, in anticipation of the successful conclusion of the sale, the judgment creditor instructed the Deputy Sheriff to cancel the sale scheduled for 20 May 2011 and the sale was cancelled. Subsequently, in June 2011 the Deputy Sheriff, in letters addressed to the respondent’s legal practitioners, demanded payment of commission in the sum of USD226 297.25. The respondent queried the amount being demanded for commission. When the amount remained unpaid the Deputy Sheriff gave instructions to an auctioneer to sell tobacco stocks in its possession for recovery of the alleged commission. The respondent then paid.