Maureen Clarisa Hakuramidzwe Chitewe v Charter Properties (Pvt) Ltd & 4 Ors

### Preamble
1
HH 546-18
HC 7774/18
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MAUREEN CLARISA HAKURAMIDZWE CHITEWE

versus

CHARTER PROPERTIES (PVT) LTD

and

GULA-NDEBELE & PARTNERS

and

SOBUSA GULA-NDEBELE

and

SHERIFF FOR ZIMBABWE N.O

and

REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 28 August 2018 and 18 September 2018

Urgent Chamber Application

C.C Mumba, for the applicant

R.L Zakeo, for the 1st respondent

A.M Murambiwa, for the 2nd & 3rd respondents

No appearance for the 4th and 5th respondents

CHIKOWERO J: After hearing submissions made for applicant and first respondent, I dismissed the application with costs on the higher scale. I gave brief oral reasons therefor.

Second and third respondents were not opposed to the application. They filed no papers, although they were represented at the hearing. On the 10th September 2018 the record was again placed before me by the Registrar.

It was accompanied by a request for reasons for the judgment for purposes of appeal. My decision had been appealed to the Supreme Court. The following are the reasons.

I will first of all state the brief facts of the matter. They are common cause. Applicant is the owner of an undivided half share in certain immovable property called Lot 1 of Lot 47 of Meyrick Park of Mabelreign situate in the district of Salisbury measuring 4 015 square metres.

The fourth respondent, on 19 June 2018, placed the other half share in the immovable property under judicial attachment. That half share was owned by the third respondent. This was pursuant to a judgment obtained by first respondent against second and third respondents under case number HC 267/14.

According to the applicant, what triggered the application was a notice in the Herald newspaper of 22 August 2018 wherein the entire property was advertised for public auction. The advertisement, attached as annexure “G” to the application, read:

“Sale no. 18 SS 123/18 in the matter between Charter Properties (Pvt) Ltd v Gula 	Ndebele and Partners & Sobusa Ndebele, certain piece of land situate in the District of 	Salisbury measuring 4 015sqm called Lot 1 of 47 of Meyrick Park Mabelreign, aka 7B 	Lachlan Avenue Meyrick Park, Mabelreign. Improvements: Access denied.”

The public auction of this and other immovable properties was advertised as set for 31st August, 2018 beginning at 10.00am. Consequently, it was my finding, hearing the application on 28 August 2018 at 3.30pm, that the matter was urgent.

That, obviously, was not the end of the matter.

The interim relief sought by the application was as follows:

“1. 	The fourth respondent be and is hereby interdicted from proceeding with the sale by public auction of certain piece of land situate in the District of Salisbury called Lot 1 of Lot 47 of Meyrick Park of Mabelreign measuring 4.015 square metres.”

She argued that her half share should not be sold because she was not a judgment debtor in the matter which resulted in the attachment of third respondent’s half share.

I was referred to the following cases: Batsirai Maphosa v Agricultural Bank of Zimbabwe Ltd & 2 Ors HH 382/16 as well as Kandai Chiswo v Sheriff of Zimbabwe N.O & 4 Ors HH 239/16.

I agreed with Mr Zakeo that those cases are distinguishable.

In the Maphosa matter there was simply no judgment or order of court on which the process of sale of execution could be founded. Put simply, the advertisement of the immovable property for sale was bereft of a legal foundation.

That matter was not decided on the basis that the applicant and his wife owned the immovable property in question in equal and undivided shares. That the property was owned in those terms was irrelevant to the question that the court was in that matter called upon to answer.

It is true that the immovable property in the matter of Kandai Chiswo (supra) was owned by the applicant in that case and her husband in equal undivided shares.

The judgment debtor was the husband and not Kandai.

At p 2 para 1 of that cyclostyled judgment MUREMBA J stated:

“Pursuant to the judgment the second respondent who is the judgment creditor proceeded to issue a writ of execution for the attachment of 50% share belongings to the third respondent in property No 41 Camberly Road, Ashdown Park, Harare. The other 50% share belongs to the applicant. The first respondent proceeded on the instruction of the second respondent to attach and sale (sic) the whole property at a public auction to the fourth respondent for US$67 000.00” (Underlining is mine for emphasis).

It is clear that in the Chiswo matter the instruction to attach and sell the whole property was unlawful, as was the sale itself. There ought not to have been an instruction to sell the whole property. There ought not to have been a sale of the whole property, but only the half share belonging to the judgment debtor.

Accordingly, that matter, too, is distinguishable from the present.

In the matter before me the applicant quite properly conceded that she was not challenging the attachment of third respondent’s half share in the property. Indeed she could not. The notice of attachment properly identified what was attached. It was third respondent’s half share in the immovable property.

The writ of execution on which the attachment was founded was, and could not, be impeached.

Its parent was the judgment granted in favour of first respondent against second and third respondents.

In letter dated 29 June 2018 the first respondent’s legal practitioners rejected a certain proposal made via the second respondent. That letter was addressed to the second respondent under case number HC 267/14. It concluded by stating:

“It is our instruction to proceed with the sale of the one-half share via public auction.”

The correspondence, attached to the application, was signed as received on 2 July 2018 by the second respondent.

Further, on 9 July 2018 the fourth respondent addressed a letter to Chitewe Law Practice, representing the applicant. This was before the filing of the present application.

The contents of the latter ran like this:

“1. We refer to your letter dated 4 July 2018.

2. We would like to advise that we have only attached half share of the defendant’s

immovable property. Therefore, there is no need for consent of your client, since we will 	     be proceeding with the sale of the half share of the defendant only once given instructions

by Instructing Attorney.”

In all the circumstances, therefore, what was due to be sold by public auction on 31 August 2018 was third defendant’s half share in the property, and not the whole property.

I was unable to shut my eyes to the manifest position that the advertisement contained nothing but an error in holding out the entire property, and not just third defendant’s half share, as being up for sale.

But it was clear from the instruction received by the fourth respondent from the first respondent’s legal practitioners what it was that was to be sold.

Hence the correct attachment by the fourth respondent.

If anything, the applicant’s remedy lay not in bringing the urgent chamber application. Instead, the relief was to simply point out to the fourth respondent that his advertisement contained an error in respect of that which was the subject of the auction.

Armed with the judgment, the writ of execution against immovable property and the Notice of Attachment in Execution, it hardly needs recording that the advertisement contained a bona fide error. In my view, that error cannot invalidate the advertisement itself nor can it justify granting of the interim relief sought. It is within the realms of human error.

Execution is a process. This court has the power to regulate its processes. The judgment giving rise to the process of execution, against the third respondents half share remains extant. In my view, it was dishonest for the applicant to fasten on the error in the advertisement to effectively seek a stay of execution against the third respondent’s half share.

I was bolstered in this finding by the applicant’s oral submissions that the law prohibits sale of an equal undivided share where the immovable property in question is not partitioned.  I have read the obita dictum to this effect in the Chiswo judgment. In my view, the position enunciated in the case of Xtreme Oils Private Limited v Shahadat HH 21/18 represents a correct statement of the law.

I adopt it. There is nothing stopping a co-owner from dealing with his share as he pleases. It necessarily follows that his share is liable to attachment and sale in execution.

It matters not that the immovable property in question is a house. It matters not also that the other co-owner, unaffected by the sale, may find herself saddled with a stranger by way of the new co-owner.

Before I conclude this judgment I wish to make a certain observation. It is this. In my view, the lot of the applicant is legally protected. Spouses who are not co-owners have and continue to be prejudiced in situations where the solely titled spouse incurs legal obligations leading to attachment and sale of the entire house.

In the circumstances of this matter, I found that the applicant did not have a prima facie right. She did not have a legal right. She did not have anything to protect. The right attached and liable to be sold was not hers but the third respondent. That was the end of the matter.

Her application was not only dishonest but frivolous and vexatious. It was designed to buy time for the third respondent by postponing the sale of his undivided half share for as long as possible. It was an abuse of court process. See NetOne Cellular (Private) Limited and Reward Kangai v Econet Wireless (Private) Limited and Zimbabwe Revenue Authority SC 47/18.

These, then, are the full reasons why, at the end of argument on 28 August 2018 I made the following order:

The application is dismissed.

The applicant shall pay the first respondent’s costs on a legal practitioner and client scale.

Chitewe Law Practice, applicant’s legal practitioners

Gill, Godlonton, and Gerrans, 1st respondent’s legal practitioners