Apex Pension Fund v Apex Holdings (Private) Limited & Anor (Venetian Blinds Specialists Limited) & The Deputy Sheriff Harare

### Preamble
1
HH
131/2013
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APEX PENSION FUND

versus

APEX HOLDINGS (PRIVATE) LIMITED

and

VENETIAN BLINDS SPECIALISTS LIMITED

and

THE DEPUTY SHERIFF HARARE

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 30 April 2013

Ms N. P. Timba, for the applicant

J. R. Tsivama, for the second respondent

No appearance for the first and third respondents

Urgent Chamber Application

ZHOU J:  After hearing submissions from counsel representing the applicant and second respondent I dismissed the urgent chamber application in casu with costs.  I gave brief reasons. I did indicate that my written reasons could be furnished upon request. The applicant through its legal practitioners has requested to be furnished with the written reasons. These are the reasons.

On 8 November 2012 the second respondent was granted a judgment against first respondent in Case No. HC 1658/08. The judgment was for payment of a sum of US$840 958.11 together with interest at the rate of 5% per annum and costs of suit. The second respondent caused to be issued a writ of execution on 19 December 2012. The third respondent duly attached immovable property owned by the first respondent.  The property attached in execution included three immovable properties which are the subject of this application. These are Stand 1724A Salisbury Township also known as 100 Simon Mazorodze Road, Harare, Stand 242 Norton Township also known as 15 Galloway Road, Norton, and Stand 3332 Salisbury Township also known as 25 Birmingham Road, Harare.

In response to the attachment the applicant wrote to the third respondent on 17 January 2013 asking him to institute interpleader proceedings in respect of the three properties.  The basis of the claim was that the properties were owned by the applicant and not by the judgment debtor. On 22 April 2013 an advertisement appeared in a local newspaper advertising the above properties for sale. The sale was to take place on 3 May 2013. The applicant approached the third respondent’s legal practitioners when they saw the advertisement.  Interpleader proceedings were then instituted on 24 April 2013.  On 25 April 2013 the applicant instituted the instant urgent chamber application for an order interdicting the third respondent from proceeding with the sale of the properties referred to above on 3 May 2013. The application is opposed by the second respondent.

The notice of opposition essentially raised two grounds of opposition. The first ground was an objection in limine that the matter was not urgent. The second ground of opposition is that the property is not owned by the applicant. I determined that the matter could be heard on an urgent basis given that the applicant had acted timeously by asking the third respondent’s office to institute interpleader proceedings through its letter of 17 January 2013.  The delay in instituting those proceedings is attributed to the reorganisation of the third respondent’s office which entailed the termination of the contracts of the Deputy Sheriffs. When the applicant became aware of the impending sale it acted promptly by instituting the instant application. Given those circumstances, I was prepared to entertain the application on an urgent basis.

On the merits, the application is founded upon the sole ground that the applicant is the owner of the properties in question.  In paragraph 8.5 of the affidavit filed in this application it is averred that the “properties are owned by the applicant but were mistakenly believed to be the property of the 1st Respondent (judgment debtor)”.  The applicant contends that the properties were sold to it by the first respondent on 26 January 2001. A copy of an agreement of sale is attached to support that fact.

Ms Timba who appeared for the applicant properly conceded that the applicant does not, in fact and at law, own the properties in question.  It is trite that ownership of immovable property is constituted by registration through a Deed of Transfer. That is the document which proves ownership.  Section 14 of the Deeds Registries Act (Chapter 20:05) provides as follows:

“Subject to this Act or any other law –

The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar.”

In the case of Takafuma v Takafuma 1994 (2) ZLR 103(S) at 105H-106A, McNALLY JA said:

“The registration of rights in immovable property in terms of the Deeds Registries Act [Cap 139] is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities.  It is a matter of substance.  It coveys 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 also Van der Merwe C.G. & M.J. de Waal, The Law of Things & Servitudes, p.150.

Registration is considered at law to be proof of ownership not only as far as the registered owner is concerned, but also with regard to third parties relying on the deeds registry. Van der Merwe& de Waal, The Law of Things & Servitudes, p. 168. An agreement of sale is not proof of ownership; neither does it confer the real right of ownership.  It merely creates personal rights as between the seller and the purchaser, the first respondent and the applicant in the instant case. That being the case the applicant’s case crumbled like a house of cards as it was founded upon the ground that the applicant is the owner of the property.

Although in the notice of opposition the second respondent had asked for costs on an attorney-client scale it did not insist on them at the hearing.

In the result, the application has no merit and must be dismissed with costs.

Kantor & Immerman, applicant’s legal practitioners

Sawyer & Mkushi, second respondent’s legal practitioners