Grownet Investments (Private) Limited v Ruwa Local Board and The Messenger of Court Harare

The first respondent (Ruwa Local Board) obtained a judgment against Ranganai Chinhamo for rates and service fees on 10 September 2007. On 18 February 2008, a writ of execution was issued against Stand Number 653 Ruwa Township, believed to be property of the judgment debtor. The property was sold by public auction to the applicant on 30 May 2008. After the sale, when legal practitioners attempted to effect transfer, a deeds search revealed that Ranganai Chinhamo had already transferred the immovable property to TA Holdings Limited in 2004. Therefore, at the time of the auction, the judgment debtor no longer owned the property, and there was nothing lawfully capable of being auctioned under the writ of execution.

• Whether the court should grant an order for specific performance compelling the respondents to transfer property that belonged to a third party (TA Holdings Limited) to the applicant
• Whether the court should order the first respondent to allocate alternative land of equivalent value to the applicant
• Whether it is appropriate to grant specific performance where it is impossible for the defendant to comply with the order

The application was dismissed. Each party was ordered to bear its own costs.

An order for specific performance shall not be issued where it is impossible for the defendant to comply with it. Where property sold at an execution sale belonged to a third party and not to the judgment debtor, the court cannot compel transfer of that property to the purchaser at the auction, as the respondents are unable to transfer property they do not own. The court's discretion in granting specific performance must be exercised to deny such relief where compliance is impossible, regardless of whether the purchaser acted in good faith.

The court observed that there was no evidence that the first respondent owned any stands that could be used to provide alternative relief to the applicant. This suggests that even if the court were inclined to grant the alternative relief, there would be no factual basis upon which to do so. The court's reference to the general principle that "justice between the parties can be fully and conveniently done by an award of damages" in some cases (though not applied here) suggests that damages might be an alternative remedy in appropriate circumstances, though this was not pursued in the present case.

This case reinforces the principle in Zimbabwean law that courts will not grant orders for specific performance where it is impossible for the defendant to comply with such orders. It demonstrates the limits of specific performance as a remedy, particularly in execution proceedings where the property subject to execution does not belong to the judgment debtor. The case serves as a reminder of the importance of conducting proper searches before execution sales and highlights that purchasers at execution sales bear the risk where the judgment debtor does not have valid title to the property being sold.