The applicant owned an undivided half share of the remainder of Lot 417 Highlands Estate of Welmoed (the property), with the other half owned by the third respondent (Kunyetu Lambert Family Trust), a trust created by the applicant and her husband Joseph Kanyeta Lambert. The first respondent (Kingdom Bank Africa Ltd) advanced a credit facility to Real Distributors (Pvt) Ltd, with the third respondent standing as surety. When Real Distributors defaulted, the first respondent issued summons in HC 3630/11 against Real Distributors, the third respondent, and others. On 29 October 2013, the third respondent entered into a deed of settlement accepting liability, and when it failed to meet the terms, judgment was obtained by consent against the third respondent. On 24 July 2014, the Deputy Sheriff attached the third respondent's undivided half share pursuant to a writ of execution. The applicant, who was not a party to HC 3630/11 and did not consent to the judgment, sought to stay execution, claiming the disposal would affect her real rights in the property which she considered the matrimonial home.
The application was dismissed with costs.
A co-owner has the right to freely alienate his or her undivided share in immovable property without reference to or consent from other co-owners. This right is a fundamental characteristic distinguishing co-ownership per se from other forms of co-ownership. Where a judgment and writ of execution are limited to one co-owner's undivided share, that share may be lawfully attached and sold in execution to satisfy a debt without the consent of the other co-owners, and such execution does not infringe upon the real rights of the non-debtor co-owners.
The court noted that while a co-owner may alienate their share, they cannot grant a usufruct over or usus or habitatio of part of the property without the consent of other co-owners, as this would infringe on the rights of the other co-owners. The court also observed that the exercise of the right to alienate one's share may lead to friction as it enables one co-owner to force others into a legal relationship with parties they do not desire, but this does not negate the legal right to do so.
This case affirms the fundamental principle of co-ownership in Zimbabwean property law that each co-owner has an independent right to alienate their undivided share without the consent of other co-owners. This distinguishes co-ownership per se from other forms of co-ownership such as partnerships. The case clarifies that execution against one co-owner's share does not infringe on the real rights of other co-owners, provided the execution is limited to the debtor co-owner's share only. It provides important guidance on the extent of autonomy each co-owner possesses over their share and the limits of protection available to non-debtor co-owners in execution proceedings.