The Sheriff for Zimbabwe v Tanaka Sithole & 8 Ors

### Preamble
1
HH 195-21
HC 11422/17
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THE SHERIFF FOR ZIMBABWE

versus

TANAKA SITHOLE

and

CYNTHIA SITHOLE

and

TIMOTHY NYANZIRA

and

RICHARD CHAPARIRA

and

TATENDA CAROL MOYO

and

NYARADZO CHEZA

and

KLENJIE GWANZURA

and

MAUDE MUSARURWA

and

NEVER PAVARI

and

MELODY MANGORO

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 11 July 2019 and 22 April 2021

Opposed Matter - Interpleader

Ms T Phiri, for the applicant

G Bumhira, for the 1st to 3rd claimants

C Shonhiwa, for the 4th claimants

Ms A Chatsama, for the 5th to 8th claimants

S Nyengera, for the judgment creditors

CHIWESHE JP: Under case number HC 3895/15 the judgment creditors obtained judgment against Tritravel Services (Pvt) Ltd and Editha (Pvt) Ltd, the first and second judgment debtors respectively, in the sum of US$89 500.00.  A warrant of execution was issued instructing the Sheriff to attach and take into execution the judgment debtor’s immovable property described as Lot 1 of Subdivision G of Subdivision D of Ntaba of Glen Lorne Township, Harare.  The notice of seizure and attachment is dated 9 June 2016.

Unbeknown to the Sheriff the judgment debtors had as far back as 6 August 1998 obtained a permit to consolidate and subdivide Lot 1 of Subdivision G of subdivision D of Ntaba of Glen Lorne and Subdivision A of Subdivision H of Ntaba of Glen Lorne, the property now subject of attachment and execution.  On the strength of that City of Harare permit, the judgment debtors had proceeded to subdivide the property into individual plots and residential stands which they offered for sale to members of the public.  Written agreements of sale were entered into with various persons including the claimants.  The claimants had each paid the full purchase price of their respective stands and proceeded to take vacant possession of the same.  At the time the notice of seizure and attachment of the property was issued, the claimants and others not before the court were at various stages of construction of their dwelling houses.  The stands sold to the claimants respectively are described thus:

In order to safeguard their rights and interests the claimants informed the sheriff that they lay claim to their respective stands within the attached property.  The claims of the claimants and the judgment creditors being adverse and mutually exclusive, the sheriff has filed these interpleader proceedings calling upon this court to determine the validity of the respective claims.

The claimants’ prayer is that the execution process be set aside and that they be allowed to register title in their respective stands.  It is trite that this court has inherent jurisdiction to regulate its own processes.  The claimants have correctly submitted that the right of a judgment creditor to attach property that is registered in the name of the judgment debtor is merely a prima facie right.  In Deputy Sheriff v Moyo and Anor HH 640/15 it was stated thus:

“Whilst it is correct that a creditor has the right to have attached and sold in execution property registered in the name of the judgment debtor that right is merely prima facie.  The claimant may show that there are special circumstances why such an order should not be granted.”

See also Moyo v Muwandi SC 47/2003, CBZ Bank v David Moyo and the Deputy Sheriff SC 17/18 and Van Niekerk v Fortuin 1913 CPD 457.

Thus where a claimant has established special circumstances as to why the attached property should not be sold in execution, the court may find in favour of such a claimant.  The claimants submit that such special circumstances arise from the facts of this case.  The undisputed facts of the matter are as follows.  The judgment debtors are the owners of the consolidated main property.  They applied for and were granted a permit to subdivide this property into residential stands.  They proceeded to so subdivide the property and offered the resultant stands for sale to the public.  The claimants among others entered into written agreements of sale for their respective stands.  Each one of them paid the full purchase price for his or her stand.  The claimants then took vacant possession of their stands and commenced development thereon.  At the time the property was attached, the claimants were at various stages of construction of their houses.  The claimants had been assured by the judgment debtor that development of the main property was ongoing and would be completed soon.  Transfer of the stands would be effected on completion of these developments on the main property. Whilst pursuing the judgment debtor to update them on progress towards completion of developments and transfer of the stands, the claimants were informed that a caveat had been placed on the main property and that their stands being part of the main property, may be sold in execution.  It is at that stage that the claimants approached the sheriff to initiate the present interpleader proceedings.

The claimants concede that they do not have real rights in the stands as transfer of the stands to them had not been effected.  For that reason, they concede that real rights to the property vest with the judgment debtors as owner.  The claimants contend that the judgment debtors had initiated the process of alienating their rights in the property as evidenced by the agreements of sale entered into between them and the claimants.  Further, the claimants had issued summons to compel the judgment debtors to effect transfer to them.  It is because of these facts that the claimants submit that there are special circumstances that justify the setting aside of the writ issued in execution of the main property.

The issue presented by the claimants is whether in the circumstances of this case it is just and equitable that the sale of the attached property proceeds in satisfaction of the judgment obtained against the judgment debtor and whether or not public policy dictates that the sale be aborted in view of the above facts.  There is the additional consideration of the value of the property compared to the debt to be recovered.  The land is valued at US$1 000 000.00 whilst the debt for which it is intended to be sold is only US$89 000.00!  It has also been established that there are other stands on this property which are yet to be sold.  These could be offered to satisfy the judgment debt of US$89 000.00 thereby saving the stands already sold to the claimants.

In my view, given the facts of this matter, the balance of convenience favours the claimants.  They purchased land on the strength of a subdivision permit issued by a competent authority.  Their legitimate expectation was that the land would be transferred to them once it had been fully serviced by the judgment debtors.  Indeed, that was what the judgment debtors undertook to do.  The claimants paid for their stands in full and took vacant possession.  When the judgment debtors delayed in the fulfilment of their obligations they issued summons to compel transfer.  Unbeknown to them the property had become the subject of execution having been attached by the sheriff for purposes of sale in satisfaction of a judgment obtained against the judgment debtors.  The value of the attached property is far higher than the value of the judgment debt.  Is it then prudent to proceed with execution against that property?  Moreover, it has not been disputed that the judgment debtor is in possession of other stands on this land whose sale could extinguish the judgment debt.  The balance of convenience is in favour of the claimants.

In terms of s2 of the Deeds Registration Act [Chapter 20:05] ownership of immovable property is conferred upon registration of title at the Deeds Office.  It is also settled law that a pignus judiciale accords to the judgment creditor real rights over property that belongs to a judgment debtor for purposes of satisfying a judgment debt.  See Industrial Development Corporation of Zimbabwe v Saruchera HH 21/06.  The question that has arisen is whether at law the set of facts and circumstances that have been averred by the claimants are such as would allow this court to set aside the attachment of the land in question in order to allow the claimants to register title.  The Supreme Court has ruled that property that has been subdivided as is the case here transforms into a different entity.  In the case of Hativagone & Anor  v CAG Farms (Pvt) Ltd & Anor SC 42/15 it was stated thus:

“….   a whole piece of land is a different entity to subdivided portions of the same.    The subdivision of land is not a matter of form, it is one of substance. Once the appellants obtained a subdivision permit in respect of the farm, the merx as it originally stood and offered to the respondent had ceased to exist.”

In casu therefore it follows that the land attached, Lot 1 of subdivision G of subdivision D of Nthaba of Glen Lorne, measuring 2, 98,90 hectares, is a different entity to the subdivisions made in terms of the subdivision permit which were sold to the claimants.  The Sheriff cannot therefore attach the whole piece of land since the merx as it originally stood has ceased to exist.  It has been replaced by the subdivision plots, each of which is now a distinct entity in its own right.

In my view the claimants have set out a case for the setting aside of the judicial attachment in order that they register title to their respective stands.  It is trite that this court has inherent powers to regulate its own processes.  A writ of execution is such process as would fall to be regulated.  In the circumstances of this case justice cannot be served if the notice of attachment of immovable property is allowed to stand.  It must be set aside.

I am unable to agree with the judgment creditor’s assertion that the claimants have raised no special circumstances to warrant property in pignus judiciale to be spared from execution.  The facts canvassed above, taken together, do constitute exceptional circumstances.  Once a subdivision permit is at hand and the original land is then subdivided, it ceases to be the same merx that the notice of attachment and seizure speaks to.  It is also not true that the land was being developed without a permit – the permit was issued by City of Harare’s Department of Works as far back as 6 August 1998.  The claimants were shown this permit and each one of them was furnished with his own copy.  It is also not correct to say that the claimants have idly waited since 2013 to take transfer.  Transfer was delayed because the judgment debtors needed to satisfy all the conditions required in terms of the permit.  These conditions related to the property as a whole, not just the claimants’ stands.  No transfer was permissible until all the permit requirements were met.  The delay in transfer is therefore not attributable to the claimants.   On the contrary, the claimants pursued the judgment debtor for transfer without success.  Under case number HC 9336/17 the claimants actually filed summons to compel the judgment debtors to effect transfer of their stands.  Further, the claimants state that at the time of purchasing the stands there were no encumbrances on the property.  When the judgment creditors obtained judgment against the judgment debtors under case HC 3895/1, given on 20 November 2015, neither the judgment creditors nor the judgment debtors informed the claimants of this development.  There is no evidence to refute the claimants’ assertions to that effect.  The claimants only got to know of this development when the property had been attached in execution.  The judgment creditors did not persist with any points they may have raised in limine.   I assume that these have been abandoned for lack of merit.

For these reasons I must find for the claimants.  Accordingly, it is ordered as follows:

The first and second claimants’ claim to the properties known as stand number 2635 of Lot 1 of Subdivision G of Subdivision D of Nthaba of Glen Lorne Township measuring 2155 m2 , and stand number 2636 of Lot 1 of Subdivision G of Subdivision D of Nthaba of Glen Lorne Township measuring 2155 m2, which were placed under attachment in execution of the order in HC 3895/15, be and is hereby granted.

The third claimant’s claim to stand number 2633 of Lot 1 of Subdivision G of Subdivision D of Nthaba of Glen Lorne Township measuring 2191 m2, which was placed under attachment in execution of the order in HC 3895/15, be and is hereby granted.

The fourth claimant’s claim to stand number 2632 of Lot 1 of Subdivision G of Subdivision D of Nthaba of Glen Lorne Township measuring 2220 m2, which was placed under attachment in execution of the order in HC 3895/15, be and is hereby granted.

The fifth claimant’s claim to stand number 2629 of Lot 1 Subdivision G of Subdivision D of Nthaba of Glen Lorne Township measuring 3325 m2, which was placed under attachment in execution of the order in HC 3895/15, be and is hereby granted.

The sixth claimant’s claim to stand number 2636 of Lot 1 of Subdivision G of Subdivision D of Nthaba of Glen Lorne Township measuring 1698 m2, which was placed under attachment in execution of the order in HC 3895/15, be and is hereby granted.

The seventh and eighth claimants’ claim to stand number 2634 of Lot 1 of Subdivision G of Subdivision D of Nthaba of Glen Lorne Township, which was placed under attachment in execution of the order in HC 3895/15, be and is hereby granted.

The above mentioned properties attached by the applicant in terms of the Notice of Attachment of Immovable Property dated 9 June 2016 are hereby declared not executable.

The judgment creditors are to pay the claimants’ and the applicant’s costs on a legal practitioner and client scale.

Kantor & Immerman applicant’s Legal Practitioners

J Mambara & Partners, 1st to 3rd claimants’ Legal Practitioners

I.E.G. & Partners, 4th claimant’s Legal Practitioners

Chatsama & Partners, 5th, 6th, 7th , & 8th respondents’ Legal Practitioners