The Sheriff for Zimbabwe and Brighton Bako v Willdale Limited t/a Willdale Bricks

Willdale Limited obtained judgment against Freewin Investments (Pvt) Ltd on 25 February 2015 in case HC 11096/14. In execution of this judgment, the Sheriff attached an undivided 10% share in immovable property known as Stand 4056 Glen Lorne Township (certificate of Registered Title No. 1043/2016). Brighton Bako (the claimant) then laid a claim to the property, alleging he had purchased it from the judgment debtor under a memorandum of agreement of sale dated 17 July 2015. The claimant took occupation of the property only after attachment and obtained a Capital Gains Tax Clearance Certificate on 24 January 2017 and Rates Clearance Certificate on 30 January 2017. The property was sold in execution on 7 October 2016. The claimant sought to have his rights recognized through interpleader proceedings and sought to set aside the sale in execution.

• Whether the claimant established ownership of the attached property sufficient to succeed in interpleader proceedings
• Whether the claimant held real rights or merely personal rights in the property
• Whether judicial attachment creates a pignus judiciale (judicial mortgage) that takes precedence over unregistered personal rights
• Whether special circumstances existed to justify releasing the property from attachment
• Whether interpleader proceedings were the appropriate remedy after the property had already been sold in execution

1. The claimant's claim to the 10% undivided share in Stand 4056 Glen Lorne Township (certificate of Registered Title No. 1043/2016) is dismissed. 2. The property attached in terms of the Notice of Attachment dated 26 July 2016 is declared executable. 3. The claimant is ordered to pay costs to both the judgment creditor and the applicant.

The binding legal principles established are: (1) In interpleader proceedings, the claimant bears the onus of proving ownership of the attached property on a balance of probabilities. (2) Under the Deeds Registries Act, ownership of immovable property can only be acquired by registration in the Deeds Registry; until registration occurs, a purchaser acquires only personal rights, not real rights. (3) Judicial attachment of property in execution creates a pignus judiciale (judicial mortgage), which is a real right enforceable against the whole world. (4) Real rights created by judicial attachment take precedence over personal rights arising from unregistered agreements of sale. (5) Personal rights are only enforceable against the contracting party (the judgment debtor), not against third parties holding real rights. (6) Property subject to judicial attachment can only be released if special circumstances are established by the claimant.

MAKONI J observed that interpleader proceedings are instituted upon attachment and before sale of the property. Once a sale in execution has been conducted, the appropriate remedy for an aggrieved party is to apply for setting aside of the sale in terms of Order 40 r 359 of the High Court Rules, as other parties such as the purchaser would have an interest in the matter. The claimant should not have instituted interpleader proceedings after the sale had already occurred but should have sought to set aside the sale through the proper procedural mechanism. This observation provides important procedural guidance on the timing and appropriate remedies in execution proceedings.

This case reinforces fundamental principles of Zimbabwean property law regarding the distinction between real and personal rights in immovable property. It confirms that: (1) only registered ownership in the Deeds Registry conveys real rights in immovable property; (2) unregistered purchasers hold only personal rights enforceable against the seller; (3) judicial attachment creates a pignus judiciale that constitutes a real right superior to unregistered personal rights; and (4) interpleader proceedings are the appropriate remedy before sale in execution, not after. The judgment emphasizes the critical importance of registration under the Deeds Registries Act and the public policy reasons for maintaining this system. It provides guidance on what may constitute 'special circumstances' to release property from attachment, requiring prompt action by claimants to secure their interests.