Judgment record
Frank Humbe v Desmond Muchina & 4 Ors
SC 81/21SC 81/212021
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Judgment No. SC 81/21
1
Civil Appeal No. SC 373/20
REPORTABLE (78)
FRANK HUMBE
V
(1) DESMOND MUCHINA (2) SPARKLES SERVICES (PRIVATE)
LIMITED (3) GODFREY MUNYAMANA (4) THE SHERIFF
OF ZIMBABWE (5) FADZAYI MUNYAMANA
SUPREME COURT OF ZIMBABWE
BHUNU JA, MATHONSI JA & KUDYA AJA
HARARE: 10 MAY 2021 & 01 JULY 2021.
T. S. T. Dzvetero with Ms T. M. Dzvetero, for the appellant.
E. K. Muhlekiwa, for the second, third and fifth respondents.
MATHONSI JA: The appellant brought an urgent chamber application in the
High Court for a stay of the execution of a judgment obtained by the first respondent against
the second and third respondents on 12 February 2018 in the sum of US$352 851,30 together
with interest and costs of suit.
By judgment delivered on 21 August 2020, the High Court dismissed the
application with costs. This appeal is against that judgment dismissing the appellant’s urgent
application.
THE FACTS
The third and fifth respondents, who are husband and wife, hold title to Stand 67
Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known
as No 67 Guildford Crescent, Borrowdale Harare, (the house) by Deed of
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Transfer Number 1447/2009. On 15 November 2013 they entered into a deed of sale in terms
of which they sold the house to the appellant for US$380 000.00 payable in certain
instalments from 30 November 2013 to 30 June 2014.
There is no convergence between them as to whether the full purchase price was
paid. The appellant alleges having paid part of the purchase price through the sale of his own
neighbouring house through the agency of the second respondent and part of it through the
sale to the third respondent of his Mercedes Benz S Class motor vehicle.
The appellant alleges further that although he failed to pay the cash balance of the
purchase price in accordance with the agreement, he has however paid it in full. On the other
hand the third and fifth respondents’ position is that the appellant defaulted in his payments
and after giving him the requisite 30 days notice in terms of the deed of sale, they duly
cancelled the agreement.
Notwithstanding such cancellation the appellant still sued the second, third and
fifth respondents in case number HC 11367/15, which was filed on 20 November 2015, for
an order compelling transfer of the house to himself and for their eviction from it. The
summons action in question was defended and does not appear to have been prosecuted with
any zeal thereafter.
Meanwhile the second and third respondents were sued by the first respondent in
case number HC 11601/17 which summons action was filed on 14 December 2017. He
obtained judgment against them on 12 February 2018 in the sum of US$352 851.30 plus
interest and costs of suit aforesaid. A writ was thereafter issued which the fourth respondent
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was instructed to execute. In pursuance whereof the house in dispute was placed under
judicial attachment.
Following the attachment, the appellant lay a claim to the house motivating the
fourth respondent to institute interpleader proceedings under case number HC 7525/19. By
judgment delivered on 9 June 2020 in The Sheriff for Zimbabwe v Humbe & Anor
HH 378/20, CHINAMORA J dismissed the appellant’s interpleader claim and declared the
house executable. The judgment remains extant and has not been appealed against.
Instead, the appellant filed a further application on 21 July 2020 under case
number HC 3805/20. He sought an order setting aside the writ of execution in terms of
which the house was attached. The basis of the application was that the Sheriff was enjoined
by r 326 of the High Court Rules to first diligently pursue the attachment of a debtor’s
movable property before going against immovable property. In addition, the appellant took
the view that the house could not be the subject of execution as it was res litigiosa having
been the subject of litigation in HC 11367/15.
In the same application the appellant also sought a declaration that his rights in
the house “preceded” those of the first respondent. He also sought an order that the house be
transferred to him. This, the appellant sought, in spite of the judgment of CHINAMORA J
issued on 9 June 2020 which, as I have said, remains extant.
At the same time that the appellant filed the court application in case number
HC 3805/20, he also filed the urgent chamber application for interim relief of a stay of
execution which is the subject of the present appeal. The application was opposed by the
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first, second, third and fifth respondents. The stay of execution was sought pending the
finalisation of his claim in HC 11367/15 and his application for a declaratory order and the
setting aside of the writ which is case number HC 3805/20.
DECISION A QUO
The court a quo found that the appellant had failed to pay the full purchase price
for the house in terms of the deed of sale. In doing so the court a quo was fortified by the
fact that the deed of settlement signed by the appellant and the third respondent on
12 December 2017 which, although later repudiated by the third respondent as having been
procured by duress, acknowledged that there was still an outstanding sum of US$50 000.00.
The court a quo recognised that both rules 326 and 327 of the High Court Rules
provide for options to a party which applied for the issuance of a writ. They do not provide a
remedy to the appellant. After criticizing the interim relief sought by the appellant which was
the same as the final order sought, the court a quo wondered how the appellant could have
filed further applications in the face of the judgment of CHINAMORA J which I have
alluded to above.
It was the court a quo’s finding that given that the house was registered in the
names of the third and fifth respondents they hold real rights over the house. The appellant
never acquired any real rights over it. The attachment of the house by the Sheriff in
pursuance of a writ of execution gave the first respondent, as the judgment creditor in whose
favour the writ was issued, a pignus judiciale on it created by the attachment. That is to say
an attachment creates a judicial mortgage on the property so attached.
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The conclusion of the court a quo was that the appellant failed to establish a
prima facie right over the house as would entitle him to a stay of execution. His claim
through interpleader proceedings having failed and the house declared executable, the
appellant was seeking “to mount a second bid based on essentially the same facts.” He was
precluded from doing so because the court a quo had already pronounced itself on the issue.
Overcome by grief as a result, the appellant launched this appeal on grounds set
out below:
GROUNDS OF APPEAL
1. The court a quo erred in fact and grossly misdirected itself in finding that the
appellant breached the contract of sale by failing to pay the full purchase price by the
date that the price was due.
2. The court a quo erred in fact and grossly misdirected itself in finding that the
appellant caused the arrest and prosecution of the fifth respondent on fabricated
allegations of fraud and coerced the third respondent to sign the deed of settlement
using the fifth respondent’s arrest.
3. The court a quo erred at law and grossly misdirected itself in finding that the dispute
between the parties in the instant matter is res judicata.
4. The court a quo erred at law and grossly misdirected itself in disregarding that the
property in dispute is res litigiosa and in further failing to give any reasons for such
discount.
5. The court a quo erred at law and grossly misdirected itself in disregarding that the
application was an application for stay of execution pending a court application in
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terms of r 340 of the Rules of the High Court and in failing to give any reasons for
such discount.
6. The court a quo erred at law and grossly misdirected itself in determining that the
interim relief was the same as the final relief and as such the relief could not be
granted when in fact the interim and final reliefs were different and even if the reliefs
were the same, the court could and it ought to have granted it either way even if it
were to be found to be the same.
7. The court a quo erred at law and grossly misdirected itself in exercising its discretion
without addressing the requirements of and purpose for proceedings for stay of
execution.
8. The court a quo erred at law and grossly misdirected itself in finding that r 326 of the
High Court Rules can only be invoked by a person who applied for the writ of
execution.
ISSUE FOR DETERMINATION
Clearly the grounds of appeal stray from the field of discourse. They seem to
attack every pronouncement in the judgment a quo without identifying the ratio
decidendi. The court a quo dismissed the application because it made a finding that the
appellant failed to prove a prima facie right over the house. This was more so regard
being had that the same court had already pronounced itself when it declared the house
executable.
In that regard, only one issue commends itself for determination in this appeal. It
is whether the court a quo erred in dismissing the application for stay of execution.
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THE LAW
The appellant approached the court a quo for a stay of execution pending the
prosecution of a summons claim to compel transfer of the house to himself, which by then
had been pending for 5 years, and a court application which seeks both a declaratory
order that he possesses superior rights in the house and that the house be transferred to
him. The court application also seeks the setting aside of a writ issued in favour of the
first respondent against a house not registered in the appellant’s name but those of the
judgment debtors in that suit.
The execution of a judgment is a process of the court. The court therefore retains
an inherent power to manage that process having regard to the applicable rules of
procedure. What is required for a litigant to persuade the court to exercise its discretion
in favour of granting a stay in the execution of the court’s judgment has been stated in a
number of cases.
In Mupini v Makoni 1993 (1) ZLR 80(S) at 83 B–D this Court stated the position
of the law quite clearly:
“In the exercise of a wide discretion the court may, therefore, set aside or suspend a
writ of execution or, for that matter, cancel the grant of a provisional stay. It will
act where real and substantial justice so demands. The onus rests on the party
seeking a stay to satisfy the court that special circumstances exist. The general rule
is that a party who has obtained an order against another is entitled to execute upon
it. Such special reasons against execution issuing can be more readily found where,
as in casu, the judgment is for ejectment or the transfer of property, for in such
instances the carrying of it into operation could render the restitution of the original
position difficult. See Cohen v Cohen (1) 1979 ZLR 184(G) at 187C, Santam Ins
Company Limited v Paget (2) 1981 ZLR 132(G) at 134 G–135B; Chibanda v King
1983(1) ZLR 116(H) at 119 C-H; Strime v Strime 1983 (4) SA 850(C) at 852 A.”
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It is settled in this jurisdiction that a judgment creditor is entitled to attach and
have sold in execution the property belonging to the judgment debtor. This is so even in a
situation where a third party has a personal right against such a debtor in respect of the same
property. The position is the same even where the personal right of the third party preceded
the attachment of the property. See Herbstein and Van Winsen, Civil Practice of The
Superior Courts in South Africa 3 Ed at p 597 (quoted with approval in Maphosa & Anor v
Cook & Ors 1997 (2) ZLR 314 (H) at p 316 G).
To that should be added the hallowed principle of our law that the conveyance of
ownership in immovable property from person to person is achieved through the registration
of transfer at the deeds registry. Real rights in an immovable property are held only by
registration at the deeds registry. This was underscored by this Court in the seminal remarks
made in Takafuma v Takafuma 1994 (2) ZLR 103(S) at 105 G-106A;
“The registration of rights in immovable property in terms of the Deeds Registries Act
[Chapter 20:05] is not a mere matter of form. Nor is it simply a devise to confound
creditors or the tax authorities. It is a matter of substance. It conveys real rights upon
those in whose name the property is registered. See the definition of ‘real right’ in s 2
of the Act. The real right of ownership, or jus in re propria, is ‘the sum total of all the
possible rights in a thing’ – see Wille’s Principles of South African Law 8 ed p 255.”
A party which lays a claim to property which has been placed under judicial
attachment by the Sheriff in the discharge of his or her duties as the executive of the court,
has remedies provided for in the rules of court. Such a party is required to submit a claim to
the Sheriff in order to trigger the institution by the latter of interpleader proceedings in terms
of Order 30 of the High Court Rules.
The court resolves the conflicting claims of parties in interpleader proceedings by
either upholding the claimant’s claim or dismissing it. Where it finds the claimant’s claim to
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be without merit, the court, in addition to dismissing the claim, ordinarily declares the
property under attachment executable. The result is the opposite where the claim is upheld.
In the present case, after raising essentially the same arguments as in the urgent
chamber application the subject of this appeal, the appellants’ interpleader claim was
dismissed by the court a quo. It declared the house executable at the instance of the
first respondent.
APPLICATION OF THE LAW TO THE FACTS
The first respondent has an extant judgment in his favour issued against the
second and third respondents. The judgment is sounding in money and it was in pursuance of
it that a writ of execution was issued against the house.
The house is registered at the Deeds Registry in the name of one of the judgment
debtors. It is the same house which the appellant lays a claim to by virtue of a deed of sale
which ran into turbulence. The dispute between the appellant and those of the respondents
who sold the house to him had not been resolved by the courts at the time that the
first respondent instructed the Sheriff to attach the house for sale in execution.
On the authorities that I have made reference to above the judgment creditor, who is the
first respondent, was entitled at law to have attached and sold in execution, the house which
is registered in the name of his debtor. The appellant is a third party who only has personal
rights exercisable against the debtor in respect of the ownership and possession of the house.
As much as those personal rights came about prior to the attachment, or may have arisen
prior to the first respondent’s cause of action that is of no moment in law.
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The court a quo cannot be faulted for its finding that the attachment of the house
in execution created a judicial mortgage or pignus judiciale. The appellant’s situation is
exacerbated by the failure of his interpleader claim and the prior declaration made by the
court a quo, that the house was executable in favour of the first respondent.
In dismissing the appellant’s claim to the same house CHINAMORA J, who
determined the interpleader, relied on a line of authorities to the effect that where the house is
registered in the name of the judgment debtor, he or she remains the owner of the property.
For that reason it is susceptible to execution. The learned Judge concluded:
“In casu, the judgment debtor has title to the property. It is indeed immovable
property. However I propose to equate possession in the case of movable goods to title
in respect of immovable property. To the extent that possession and title raise a
rebuttable presumption of ownership, the principle in Zandberg v Van Zyl (1910 AD
258 at 272) applies to immovable property. The starting point is to examine the legal
implication of title. Title confers real rights in immovable property. It cannot be gain
said that a title deed is prima facie proof that a person enjoys real rights over the
immovable property defined in the deed.”
(The Sheriff for Zimbabwe v Humbe and Another, supra).
It is against the foregoing background that the appellant approached the court
a quo for the second time, seeking a stay of execution to enable him to pursue the
determination of the parties’ rights in the house all over again. Those rights had already been
determined by the same court in a judgment that was not impugned and remains extant.
In my view the court a quo cannot be faulted for coming to the conclusion that
after the appellant had chosen to pursue interpleader proceedings, which failed, he could not
mount a second bid in the same court based, essentially, on the same facts. It is true that the
court a quo had already pronounced itself on the status of the house having declared it
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executable. It is not the number of times that a litigant approaches the court seeking recourse
which determines a matter in the litigant’s favour, but the existence of a sustainable cause of
action. In this case there was none.
DISPOSITION
I have set out what an applicant for a stay of execution is required to establish in
order to motivate the exercise of the court’s discretion in his or her favour, namely that
special circumstances exist for the court to halt its own execution process.
The appellant dismally failed to discharge that onus. This is a case in which the
same property had been declared executable by judgment of the same court. He had not
appealed that judgment leaving it binding against the parties. It would have been extremely
incompetent for the court a quo to grant a stay of two judgments of its own definitively
settling the rights of the parties.
In addition, the house lawfully registered in the name of a judgment debtor had
been placed under attachment in execution of a valid judgment. The appellant only possessed
personal rights against the debtor which could not override real rights in law. There was no
legal basis for a stay and certainly no special circumstances as would invite the court to grant
it.
I do not agree with Mr Muhlekiwa’s submissions that the appropriate order
should have been the striking off of the application from the roll. The reasons advanced for
that proposition are clearly wrong. The application was determined on the merits, the court
having found that it lacked merit. It could only be disposed of by its dismissal.
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Regarding the question of costs, this is an ill-conceived appeal, wholly without
merit and predicated on extraneous grounds. I see no reason why costs should not follow the
result.
In the result it be and is hereby ordered as follows:
1. That the appeal is dismissed.
2. That the appellant shall bear the costs.
BHUNU JA: I agree
KUDYA AJA: I agree
Antonio & Dzvetero, the appellant’s legal practitioners.
Muhlekiwa Legal Practitioners, the 2nd, 3rd and 5th respondent’s legal practitioners.