The Sheriff of Zimbabwe v Yolander Chipo Hlombe and Simba Gorden Nyamarezi and Tafadzwa Solomon Kaitano

The judgment creditor obtained a court order against Evidence Shepherd Murambiwa and Hayes Construction (Private) Limited in HCH5875/21. Pursuant to this order, the Sheriff was instructed to attach certain immovable property - Stand 18016 Tynwald Township Lot 12, measuring 634 square metres, held under deed of transfer number 7890/22. The 1st and 2nd claimants laid claim to the attached property. The claimants had purchased the property in 2020 from the judgment debtor through a sale in execution sanctioned by the court in HCH5182/15. At the time of purchase, the property was vacant and underdeveloped. The claimants paid the full purchase price, developed the property into a five-bedroom house, paid conveyancing fees, and had been in occupation since 2020. The property remained registered in the judgment debtor's name. The certificate of compliance was only issued on 16 May 2022, and the deed of transfer in favour of the judgment debtor was dated 15 December 2022, while the judgment creditor obtained judgment on 20 December 2022. The claimants instituted interpleader proceedings in terms of Rule 63 of the High Court Rules, 2021.

• Whether there were special circumstances warranting the upliftment of attachment despite the property remaining registered in the judgment debtor's name
• Whether a purchaser who has not yet obtained transfer of property into their name can resist execution against the property
• Whether improvements made to property and occupation constitute special circumstances
• Whether the claimants took reasonable steps to effect transfer of the property
• The application of Section 11 of the Deeds Registries Act [Chapter 20:05] requiring transfers to follow sequence

1. The 1st and 2nd claimants' claim to Stand 18016 Tynwald Township Lot 12 of Tynwald measuring 634 square metres held under deed of transfer number 7890/22 attached pursuant to execution of judgment in HCH5875/21 is granted. 2. The immovable property attached and described in the 1st and 2nd claimants' interpleader affidavit is declared not executable. 3. The judgment creditor shall pay storage costs and all costs associated with the attachment of the property. 4. The judgment creditor shall pay the claimants' and applicant's costs of suit on an ordinary scale.

Special circumstances warranting the upliftment of attachment exist where: (1) a purchaser has failed to have property registered in their name but has demonstrated clear intention to effect transfer through payment of purchase price, payment of transfer fees, and follow-ups with conveyancers; (2) the purchaser has made substantial improvements to the property (such as constructing a five-bedroom house on previously vacant land); (3) the purchaser has been in occupation of the property; (4) delays in effecting transfer are attributable to legal impediments beyond the purchaser's control, including statutory requirements that transfers follow sequence under Section 11 of the Deeds Registries Act; and (5) allowing execution would result in unjust enrichment of the judgment debtor at the purchaser's expense and leave the purchaser without remedy. The court retains inherent discretion to control execution of its judgments and may suspend or set aside execution where real and substantial justice demands.

The court made observations about procedural matters, noting that Rule 63 does not explicitly provide for filing of answering affidavits but that Rule 7 may be invoked in the interests of justice to allow supplementary evidence. The court also observed that a title deed is not conclusive proof of ownership but merely establishes a prima facie right and not a real or absolute right, citing CBZ v Moyo. The court noted that allowing execution in HCH5875/21 would prevent execution in HCH5182/15, which would amount to the court giving conflicting orders - giving with one hand and taking with another. The court rejected the judgment creditor's suggested remedies (obtaining a compelling order, engaging or changing conveyancers, or complaining to the Law Society), noting that a compelling order would not have been available where the agreement of sale was silent on timing of transfer, and that approaching the Law Society was not appropriate where no misconduct occurred and the agreement was silent on timeframes. The court emphasized that purchasers do not facilitate transfer - that is the purview of conveyancers.

This case is significant in Zimbabwean jurisprudence (though this appears to be a Zimbabwean case rather than South African) as it establishes that special circumstances can exist to prevent execution against property not yet registered in a claimant's name where: (1) the purchaser has demonstrated clear intention to effect transfer; (2) substantial improvements have been made to the property; (3) the purchaser has been in occupation; (4) the full purchase price has been paid; and (5) delays in transfer are attributable to legal impediments beyond the purchaser's control rather than sluggishness. The case reinforces the court's inherent discretion to control execution processes to prevent unjust enrichment and promote substantial justice. It also clarifies the operation of Section 11 of the Deeds Registries Act requiring transfers to follow sequence. The case demonstrates that courts will protect bona fide purchasers who have acted diligently even where formal registration has not yet occurred.