The Sheriff of Zimbabwe v Margaret Chidede and Others

The judgment creditor (Dinah Gukuta) obtained a default judgment against the judgment debtor (Charity Boka) for US$42,000.00 under HC 2039/23 on 13 June 2023. The judgment declared executable the judgment debtor's rights in Stand 22871 Ruwa Township held under Deed of Transfer No. 4138/28, registered in the name of Charible Enterprises (Pvt) Ltd. The judgment creditor had previously registered a mortgage bond (Number 2294/20) over the property as security for a loan of US$30,000.00 advanced to the judgment debtor under a Restructure Loan Agreement dated 30 November 2020. The claimants (Margaret Chidede, Sofia Chidede, and Immaculata Chidede) had purchased the same property from Charible Enterprises through an agreement of sale dated 24 July 2020 for US$60,000.00, paid the full purchase price by February 2021, and took occupation in August 2021. The claimants believed they were purchasing property without title deeds subject to cession arrangements and did not register title in their names. When the Sheriff attached the property in execution, the claimants filed an interpleader claim asserting ownership. The claimants had also instituted separate proceedings (HC 1895/24) seeking cancellation of the title deed in favour of Charible Enterprises, which was dismissed on 27 February 2025.

• Whether a legal secretary employed by a legal practitioner has capacity to depose to an affidavit on behalf of a client under Rule 58(4) of the High Court Rules, 2021
• Whether personal rights derived from an unregistered agreement of sale can prevail over real rights created by a registered mortgage bond
• Whether the claimants acquired real rights in the property in the absence of registration of title under section 14 of the Deeds Registries Act
• Whether the property should be released from attachment in favour of the claimants or remain executable in favour of the judgment creditor

1. The claimants' claim to the property listed in the Notice of Seizure dated 8 March 2024 attached in execution of the order in Case No. HC 2039/21 is dismissed. 2. The property attached by the applicant is declared executable. 3. The claimants shall pay the judgment creditor's and the applicant's costs of suit on the ordinary scale.

Under Rule 58(4) of the High Court Rules, 2021, any person who can swear to the facts or averments in an affidavit is competent to depose to it; the qualification depends on personal knowledge of the facts, not the deponent's status or relationship to the party. Real rights created by a registered mortgage bond are superior to personal rights arising from an unregistered agreement of sale. In the absence of registration of title under section 14 of the Deeds Registries Act, a purchaser acquires only personal rights against the seller, not real rights in the property that can be asserted against third parties holding registered real rights. Personal rights do not offer protection against claims by holders of superior real rights such as registered mortgagees. A purchaser's remedy in such circumstances lies against the seller who fraudulently disposed of the property, not against the holder of the registered real rights.

The court expressed sympathy for the claimants' precarious position, observing that they were clearly deceived by the judgment debtor who fraudulently manipulated her relationship with the seller and mortgaged the property to a third party despite knowing the claimants had purchased it. The court noted that the judgment debtor "conducted herself in a fraudulent manner" by making the claimants purchase the property on the understanding that it had no title deeds when in fact it had. The court acknowledged that the claimants were "duped" and exposed to "this massive loss" through the judgment debtor's fraudulent conduct. The court also explained the procedural history, noting that it had deferred judgment pending the outcome of HC 1895/24 (the claimants' application to cancel the title deed) because if successful, the mortgage bond would have become ineffectual and the claimants' interpleader claim would have been unassailable.

This case is significant in Zimbabwean property and execution law for clarifying: (1) the broad scope of Rule 58(4) regarding who may depose to affidavits in application proceedings, extending beyond parties and their legal practitioners to anyone with personal knowledge of the facts; (2) the fundamental principle that real rights created by registered mortgage bonds are superior to personal rights arising from unregistered agreements of sale; (3) the critical importance of registering title under the Deeds Registries Act to acquire real rights in immovable property that can be asserted against third parties; and (4) that purchasers who pay the full purchase price but fail to register title remain vulnerable to claims by holders of registered real rights, with their remedy lying against the seller rather than the holder of superior rights. The case demonstrates the risks faced by purchasers in informal property transactions and underscores the protective function of the deeds registration system.