The Sheriff for Zimbabwe v Maurice Gandawa and Barbara Gandawa and Dairiboard Zimbabwe (Private) Limited

The Sheriff attached a piece of land (Lot 29 Rusike Estate) registered in the name of Leonard Chingandu (the judgment debtor) at the instance of Dairiboard Zimbabwe (the judgment creditor), which held a judgment against Damdew Investments (Pvt) Ltd and Leonard Chingandu. The first and second respondents (the Gandawas - the claimants) claimed ownership of the property, alleging they had purchased it from Mr. and Mrs. Chingandu in February 2013. The claimants paid the full purchase price in instalments and took vacant possession of the property, on which they effected developments. Their conveyancers facilitated interviews with ZIMRA for Capital Gains Tax Clearance Certificate purposes. The sellers initially applied for a rollover of Capital Gains Tax but deferred this application in October 2013. Transfer could not be effected allegedly because ZIMRA misplaced the file and failed to assess the Capital Gains Tax timeously, and possibly because of a caveat placed by the judgment creditor (caveat No. 321/18). The judgment creditor obtained its order against the judgment debtor in October 2016.

• Whether the claimants established special circumstances to vitiate the presumption of ownership arising from the judgment debtor's registered title
• Whether the claimants did all that was required of them to effect transfer of the property
• Whether the impediment to transfer was of the claimants' making or attributable to a third party
• Whether the claimants' personal rights as purchasers should prevail over the judgment creditor's right to execute against property registered in the judgment debtor's name
• The relative priority between personal rights acquired through an agreement of sale versus personal rights acquired through registration of a caveat

1. The Claimants' claim to Lot 29 Rusike Estate measuring 1,3776 hectares held under Deed of Transfer 2162/2006 was granted. 2. The property was declared not executable. 3. The Judgment Creditor was ordered to pay the Claimants' and applicant's costs.

Special circumstances exist to protect an unregistered purchaser of immovable property against execution by a judgment creditor where: (1) the purchaser and seller demonstrated clear intention to effect transfer; (2) the purchaser did all that was required to receive transfer (paid purchase price, paid transfer fees, completed requisite processes); (3) the impediment to registration was not of the purchaser's making but was attributable to a third party beyond the purchaser's control; and (4) the purchaser was an innocent purchaser who acquired the property when it was free from any right of preference. In such circumstances, although the judgment debtor retains registered title, this is 'title on paper only' where the debtor has relinquished all rights in the property, and it would be unjust to allow execution to proceed. Personal rights acquired through an agreement of sale by an innocent purchaser are not inferior to personal rights acquired through registration of a caveat by a subsequent judgment creditor. Courts will protect the equitable interest of such purchasers to prevent the judgment debtor from benefiting twice from the same property and to avoid imposing double loss on an innocent purchaser.

The court made obiter observations that while information about the claimants selling their dwelling place to purchase the property and effecting improvements is not determinative in establishing special circumstances, such facts help the court achieve 'simple justice between man and man.' The court also noted that it is not a requirement that claimants prove every effort they made to follow up on delays in the transfer process - what matters is showing they did all that was required of them to receive transfer. The court made favourable reference to the principle from CBZ v Moyo that failure to protect a good faith purchaser would expose them to double loss (losing both purchase price and property) while enabling the judgment debtor to benefit twice from the same property, creating hardships that should not be allowed against an innocent purchaser. The court observed that there is no superior right as between personal rights acquired through agreement of sale versus caveat registration.

This case is significant in Zimbabwean property law (which shares similar principles with South African law) as it clarifies the doctrine of 'special circumstances' that allows a court to protect an unregistered purchaser's rights against execution by a judgment creditor. The case establishes that where a purchaser has done everything required to effect transfer and the impediment to registration is attributable to a third party (in this case, ZIMRA's administrative delay) rather than the purchaser's own conduct, the court will protect the purchaser's equitable interest. The judgment reinforces the principle that while registration confers real rights, a deed of transfer is not conclusive proof of ownership and courts will look to substance over form to achieve justice. It also confirms that an innocent purchaser who acquires property before a judgment creditor's rights crystallize should be protected, even where formal transfer has not been effected, to prevent unjust enrichment of the judgment debtor and double loss to the purchaser.