Trevorson Ndlovu v Josiah Rutsvara & 31 Others

### Preamble
1
HB 279/20
HC 1852/18
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TREVORSON NDLOVU

Versus

JOSIAH RUTSVARA & 31 OTHERS

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 22 OCTOBER 2019 & 26 NOVEMBER 2020

Opposed Application

Advocate G. Nyoni for the applicant

G. Sengweni for the respondents

TAKUVA J:	Applicant is the son of Tapson Ndlovu (Tapson) and Maria Ndlpovu (nee Tapera).  Maria Ndlovu obtained a decree of divorce and ancillary relief against Tapson Ndlovu by order of this court in HC 788/17.  This order was ganted on the 27th of July 2017 and per clause 4(1), the names of Trvor Ndlovu and Talent Ndlovu.

Meanwhile and unknown to applicant, 1st to 31st respondents who are members of a burial society obtained judgment against Tapson on the 11th of May 2017.  This judgment was obtained on default of appearance of Tapson.  The order directed Tapson to pay the sum of US$13 025,00 plus 50% interest thereon and costs of suit on an attorney and client scale.  Respondents alleged that Tapson had misappropriated funds belonging to the burial society for which he was its treasurer.

The 1st to 32nd respondents then caused the judicial attachment of Tapson Ndlovu’s immovable property known as stand number 12456 Pumula South.  The property was supposed to be sold in execution on the 13th July 2018 by the 23rd respondent.  However, the applicant obtained a provisional order which temporarily interdicted the 33rd respondent from selling stand number 12456 Pumula South.

The applicant claims ownership of stand number 12456 Pumula South on the basis of the divorce order and as such heis seeking a final order which will permanently interdict 33rd respondent from selling the said property in execution of the judgment obtained by the respondents against Tapson.  Respondents are opposed to the application.

The provisional order was issued in the following terms:

“Interim relief granted

That 33rd respondent’s impending sale in execution of stand number 12456 Pumula South, Bulawayo on the instruction of 1st to 32nd respondents set for 13th July 2018 towards satisfaction of judgment granted under HC 621/17 be stayed pending full determination of this matter.

Terms of the final order sought

It is ordered that:

The 33rd respondent be and is hereby permanently interdicted from proceeding with the sale in execution of stand number 12456 Pumula South, Bulawayo at the behest of 1st to 32nd respondent towards satisfaction of judgment granted by this court under HC 621/17.

That each party bears its own costs.”

It is well settled at law that an applicant who seeks a final interdict must satisfy the court that the following requirements have been met;

A clear right;

Irreparable harm actually commited or is reasonabkly apprehended;

The absence of similar protection by any other means;

The balance of convenience- see Setloger\lo v Setlogelo 1914 AD 221;Flame Lily Investments Co. (Pvt) Ltd v Zim Salvage (Pvt) Ltd and Anor 1998; Airfield Investments (Pvt) Ltd v Min of Lands 2004 (1) ZLR 571.

The core issue in casu is whether or not the requirements for final interdict have been satisfied.  Put differently, whether or not the 33rd respondent should be permanently interdicted from selling stand number 12456 Pumula South in execution of the judgment obtained by the 1st to 32nd respondents against Tapson.

Applicant contended that the agreement of sale between Tapson and the City of Bulawayo did not confer “ownership” rights to the purchaser.  It simply granted Tapson a personal right to convey the dominium to him by transfer.  Accordingly the domium over the property rested in the local authority and could only pass on to Tapson upon registration in the Deeds Rgistry – see Diogeves Alexandra Chauke vs Esrelac Investments (Pvt) Ltd HH-333-17; Takafuma v Takafuma 1974 (2) ZLR 103 (S) 105-6A-H; Moyo v Fraser & Ors SC 520/16.

Applicant further argued that it follows to reason that respondents cannot attach and sale in execution property belonging to the Municipality of Bulawayo to satisfy Tapson’s debt.  Since a  judgment creditor has the right to have attached and sold in execution immovable proprerty registered in the name of the judgment debtor only.  Reliance was placed on Moyo v Mwadi SC-147-03; Deputy Sheriff v Moyo & Anor HH-640-15.

It was also contended that perhaps the situation would have been different had respondents taken into attachment Tapson’s rights and interests in the property rather than the property itself.  Applicant argued that his rights in the property arose from the divorce order and supercede those of the respondents since the divorce order preceded the issueing out of the writ of execution against the immovable property.

Finally, it was argued that applicant has no other remedy and that the balance of convenience favours the granting of the relief in that applicant is an innocent acquisition of property a donation to him and his siblings by his divorcing parents.  No collusion has been shown between Tapson and the applicant.

On the other hand respondents submitted that the applicant has failed to establish that he has a clear right in respect of the property.  It was contended that this arises from the fact that the property has not yet been registered in the names of the applicant and his sibling dispite the court order.  The property is still registered in Tapson’s name.  Consequently, so the argument went it belongs to Tapson.  Applicant should have transferred the immovable property into his name.  He lacked vigilance and as it  was pointed out in Ndebele v ncube 1992 (1) ZLR 288 at 290;

“The law helps the vigilant and not the sluggard.”

Respondents attached the divorce order arguing that it was obtained on “falsehoods” and therefore not genuine.  Rather it was designed to frustrate the recovery of what Tapson stole from the respondents.  Respondents alleged without attaching any shred of evidence that applicant’s parents were living together as husband and wife in South Africa.

Finally, it was submitted that since the applicant has no clear right he certainly cannot talk about having a reasonable apprehension of irreparable injury to a right he does not have.  Therefrre the sale in execution of the property cannot be permanently stayed as doing so would effectively mean that respondents will kiss goodbye to their money.

This matter pits five processes of this court.  On one hand is the order granted in the divorce proceedings between Ms Maria Ndlovu (nee Tapera) and Tapson.  This order is pitted against the resoindents’ prima facie, nt absolute right to ask that the rights, title or interest in that  stand be seized in execution equally a process of this court.

The applicable law contracts of this nature

An attachment of property registered in the debtor’s name creates a pignus judiciale over the property – namely the creditor’s right to have the attached property registered in the debtor sold in execution.

However this  right is prima facie not absolute – per ROTZE J in Van Neiker v Fortuin 1913 CAD 457 at 458-459;

“It seems to me that the plaintiff being a judgment creditor and the property being still registered in the name of the defendant, prima facie, the plaintiff has a right to ask that the property shall be seized in execution, unless the party interested can show that there are party interested can show that there are special circumstances why such an order should not be granted …”

See also Raymond Dokotela Moyo v Timothy Grasiano Mawandi SC-47-03 at p5 of the cyclostyled judgment; The Sheriff for Zimbabwe & Ors v Eve Christine Gahadzikwa HH-272-18; Deputy Sheriff in Harare v David Moyo and CBZ Bank Ltd HH-640-…….

In the Eve Christine Gahadzikwa case supra MAKONI J (as she then was) stated that;

“The parties also agreed that in circumstances where the claimants lay claim to property where there is a piugnus judicial they must establish special circumstances that will warrant the courts allowing the property under pignus judiciale to be released from attachment.”

What constitutes special circumstances is a question of fact, determined by the circumstances of each case.  The issue for the court to decide  is whether or not in the circumstances of the case there exists special circumstances which merit that the court exercises a judicious discretion to set aside the attachment.  Put differently, the striking point is to accept that the court has a discretion to set aside the execution of a property registered in the name of a judgment debtor in special circumstances.  What amounts to special circumstances depends on the facts of each case and the court gives a value judgment after considering the facts palced before it.  The onus to show the existence of special circumstances on a balance of bprobabilities is on the claimant.

In the present matter, there are special circumstances in that the judgment debtor was divested of his right, title or interest in stand number 12456 Pumula South and the same rights, title or interest invested on applicant and his sister through an order of this court.  Section 7 of the Matrimonial Causes Act, grants this court very wide powers to divide, apportion or distribute matrimonial property of the parties upon divorce.

These powers were aptly described  in Goney v Goney 68/86 [2009] ZWSC 13 per MALABA JA (as he then was) in the following words;

:It is important to note that a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apprortionment or distribution  of the assets of the spouses in divorce proceedings.  Section 7 (1) of the Act provides that the court may make an order with regard to the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other.  The rights claimed by the spouses under s7 (1) of the Act are depedent upon the exercise by the court of the broad discretion.”

In casu, maria Ndlovu’s declaration in the divorce proceedings in paragraph 4 (1) thereof shows that she claimed that  it would be just and equitable if the rights, title or interest in the matrimonial home namely stand number 12456 Pumula South Bulawayo was transferred and registered in favour of the children of the marriage, Trevorson Ndlovu and his sister Talent.  The court applied its discretion and transferred the rights, title or interest in that stand to applicant and his sister Talent.

Quite clearly, the effect of that order is that the court denied Tapson of the right, title or interest in that stand and transferred it to applicant and his stister Talent.  Effectively what this meant was that from the 27th July 2017 Tapson was stripped of any right, title or interest in the aforesaid property by operation of law in the nature of an order of this court.  He retained nothing that could be available for attachment and sale or transfer in any way whatsoever.

It is trite that an order granted in a divorce action is andiputably a process of this court and so is the process of execution.  In the Sheriff for Zimbabwe v Parklane Butchery 1973 (Pvt) Ltd CHITAPI J said;

“The process of execution is a process of this court.  In terms of s176 of the Constitution, this court has inherent powers to protect and regulate its process.  The writ of execution issued in this matter is an example of a process of this court.  Its regulation entails inter alia that the court can order whether in relation to a pignus judiciale arising from the act of attachment, such judicial order should be carried into execution or discharge.”  (my emphasis)

As regards registration I take the view that the ownership of the right, title or interest derives from the authority of this court through its order as empowered by law.