Godfrey Zacharia Nyahonzo v Onias Gasela and The City of Bulawayo

The applicant obtained a judgment against the 1st respondent in the Magistrates' Court (Case No. 261/2021) for USD12,000.00. When the Messenger of Court made a nulla bona return, the applicant sought to execute against Stand 25259 Pumula South, Bulawayo. The applicant alleged that although the property was registered in the name of Valencia Gumbo (a third party), it actually belonged to the 1st respondent who had purchased it from Valencia Gumbo in 2010 or 2011 as an undeveloped piece of land, developed it, and was in occupation. Valencia Gumbo had died in 2020. The 1st respondent had never taken transfer of the property. The application was unopposed as neither the 1st nor 2nd respondents filed opposing papers.

• Whether property registered in the name of a third party can be declared executable in respect of a judgment debt against a person who allegedly purchased but never registered transfer of that property
• Whether a judgment creditor can execute against property where the judgment debtor has only a personal right (jus ad rem) and not real rights (jus in re)
• The effect of registration of immovable property in determining ownership under Zimbabwean law

The application was dismissed with no order as to costs.

A judgment creditor cannot execute against immovable property that is registered in the name of a third party, even where the judgment debtor has purchased the property and is in occupation, but has not taken transfer. Registration of title at the Deeds Registry Office is the sole determinant of ownership of immovable property. A purchaser who has not taken transfer has only a personal right (jus ad rem) to claim transfer from the seller, not real rights (jus in re) in the property. Under common law, where a debtor has bought but not taken transfer of property and has only a jus ad rem, creditors cannot execute against that property. Delivery of immovable property is achieved only through registration in the Deeds Office; actual possession has no legal effect in transferring dominium.

The court made procedural observations that when a judge raises queries or directs filing of heads of argument in motion court, the matter does not have to be dealt with only by that judge; any other judge sitting in motion court can subsequently hear the matter. The court noted that the applicant's contention that the 1st respondent had not taken transfer in order to shield the property from creditors was "of no moment" - suggesting that even if such improper motive existed, it would not change the legal position regarding registration as the basis for ownership.

This case reaffirms the fundamental principle in Zimbabwean property law (derived from Roman-Dutch law) that ownership of immovable property is determined solely by registration of title in the Deeds Registry, not by possession or agreements of sale. It protects judgment debtors from execution against property they have purchased but not yet registered, clarifying that creditors can only execute against property in which the debtor has real rights, not merely personal rights. The judgment reinforces the distinction between jus in re (real rights) and jus ad rem (personal rights) in the context of execution proceedings.