The Sheriff for Zimbabwe v Hersel (Private) Limited and Estrelac Investments (Private) Limited t/a Exim Freight and Hunyani Paper & Packaging 1997 (Private) Limited

These were interpleader proceedings concerning an immovable property (an undivided 5% share in land) registered in the name of the second respondent (judgment debtor). The first respondent (claimant) claimed to have purchased the property, along with several other properties, more than a year prior to the attachment by the Sheriff. The claimant alleged it had paid the full purchase price and all transfer costs but had not yet registered transfer, allegedly due to delays at ZIMRA in obtaining a clearance certificate. The third respondent (judgment creditor) obtained a judgment against the judgment debtor and caused the Sheriff to attach the property in December 2014. The property was still registered in the judgment debtor's name at the time of attachment. The claimant sought to have the attachment set aside to enable it to take transfer, arguing there were special circumstances relying on the Supreme Court case of Moyo v Muwandi.

• Whether a purchaser of immovable property who has not yet registered transfer can claim the property to the extent of having a judicial attachment set aside
• Whether personal rights of a purchaser can supersede the real rights recorded in the deeds registry
• Whether special circumstances existed to justify setting aside the attachment in favor of the claimant's unregistered rights
• The extent to which a judgment creditor can rely on deeds office records when attaching property in execution

1. The claim by the first respondent/claimant to the property (an undivided 5% share, being Share No. 3 in the Remainder of Stand 1652 Salisbury Township, measuring 1 316 m2, held under Deed of Transfer No. 10324/05) which had been attached in execution in HC 1662/14 is dismissed. 2. The property is declared executable. 3. The costs of the applicant/Sheriff and of the third respondent/judgment creditor shall be borne by the first respondent/claimant and the second respondent/judgment debtor, jointly and severally.

Where immovable property is still registered in the name of a judgment debtor at the time of attachment, a judgment creditor is entitled to attach and sell that property in execution, notwithstanding any prior unregistered sale to a third party. The purchaser's rights under an unregistered sale are merely personal rights which are subservient to the real rights evidenced by registration in the deeds office. While a court has discretion to set aside an attachment where special circumstances exist, the mere fact of a prior purchase and payment of the purchase price, without more, and particularly where there is an unexplained delay in registering transfer, does not constitute special circumstances sufficient to justify setting aside a judicial attachment. The attachment creates a pignus praetorium in favor of the judgment creditor who is entitled to rely on the deeds office records. The efficacy and integrity of the deeds registration system should not be compromised by readily allowing unregistered personal rights to prevail over registered real rights.

The court observed that the evils of allowing unregistered agreements with reference to landed property to have the same effect as registered rights would work far greater injustice in the long run. The court noted that it is impractical and undesirable to prescribe exhaustively what may constitute special circumstances, as every case will depend on its own facts, but suggested that fraud, sinister reasons, or inaccuracies in deeds office records might constitute special circumstances. The court also commented that it is irregular for facts germane to an issue to be adduced for the first time in heads of argument rather than in properly sworn affidavits - all relevant facts should be stated in affidavits in application proceedings. The court emphasized that any person should be able to rely on the rights as recorded in the deeds office and act on them without fear of subsequent surprises, and that deeds office records should be taken as fact for all time and purposes absent fraud or similar special circumstances.

This case reinforces the fundamental principle in property law that real rights registered in the deeds office take precedence over unregistered personal rights. It emphasizes the central importance of the deeds registry system and the doctrine of constructive notice in Zimbabwe (and by extension South African law which shares the same Roman-Dutch law foundation). The judgment clarifies the test for "special circumstances" that might justify setting aside an attachment in favor of an unregistered purchaser, distinguishing cases involving personal rights from those involving registration of immovable property. It serves as a warning to purchasers of immovable property to act promptly in registering transfer and provides guidance on what does not constitute special circumstances (mere purchase, payment, and unexplained delay). The case protects judgment creditors' ability to rely on deeds office records and reinforces the integrity of the land registration system.