NOT FOR DISTRIBUTION Judgment No. HB 20/2002
Case No. HC 2538/2001
REGINA GUMBO N.O. Applicant
REWARD SIBANDA Claimant
DAVIE DUBE Judgment Creditor
HIGH COURT OF ZIMBABWE
BULAWAYO 7 MARCH 2002
CHIWESHE J:In this interpleader application the facts are as follows:
The claimant purchased stand 1381 Emganwini Township, Bulawayo from
one Bekezela Danisa in terms of a written agreement of sale. The agreement was
signed on 17 February 2000. He duly paid the purchase price by way of instalments.
On 28 February, 2002 the judgment creditor obtained judgment against
Bekezela Danisa (the seller) in another matter (case No. HC 4781/99). Pursuant to
that judgment a writ of execution was issued on 5 July 2000. The applicant was
instructed to attach and execute the seller’s immovable property, the subject of an
agreement of sale between the seller and the claimant. At that juncture claimant
lodged a claim with the applicant leading to the present inter pleader application. The
question to be decided is whether the claimant has a better right to the immovable
property in question than the judgment creditor.
It is trite that delivery is essential in a sale of immovable property. Where a
contract of sale has been concluded and the purchase price paid, the purchaser only
acquires a personal right against the seller. No real right accrues until transfer of the
property has been effected.
In the present case the necessary transfer or registration of cession of rights in
the property had not been effected. The property therefore at all relevant times
belonged to the seller. Claimant has no case against the creditors of the seller before
transfer. Mere possession of the property does not give him better rights than those
enjoyed by the seller’s creditors. All he has at this juncture are personal rights against
the seller. He cannot enforce those personal rights against the seller’s creditors and
the world at large. The property is thus executable at the instance of the judgment
Accordingly, the claimant’s claim is dismissed with costs.