No. SC 47/03
Appeal No. 79/02
DOKOTELA MOYO v
COURT OF ZIMBABWE
ZIYAMBI JA & GWAUNZA JA
DECEMBER 1, 2003 & JANUARY 15, 2004
for the appellant
for the respondent
This is an appeal against a judgment of the High Court which
confirmed a provisional order granted on 24 May
upon the appellant (Moyo) to show cause why the sale to him by
public auction of house no. 11542 Thorngrove
(the property) should not be set aside and the respondent
(Muwandi) declared the sole owner of the
right, title or
factual background is as follows. The property belonged to the City
of Bulawayo and Ernest Peters (Peters) occupied
his family on a lease-to-buy scheme. On 17 August 1999 Peters
and Muwandi concluded an agreement of sale in terms
of which Peters
sold his right, title or interest in the property to Muwandi for
sale agreement provided that the full purchase price was to be paid
on the date of the signing of the agreement, that the transfer
property to Muwandi was to be effected immediately after the signing
of the agreement, and that Muwandi was to be given vacant
of the property on 30 September 1999.
19 August 1999 Peters and Muwandi took the written agreement of
sale to the offices of the City of Bulawayo and requested
officials there to transfer Peters right, title or interest in the
property to Muwandi. However, as the officials were too
attend to the transfer, they advised the parties to leave the
agreement of sale with them on the understanding that the transfer
would be effected in due course.
Muwandi was granted vacant possession of the property on 30 September
1999 as agreed. However, in December 1999
Peters right, title or
interest in the property was attached by the Deputy Sheriff at the
instance of Nancy Joyce Van Heerden
(the judgment creditor),
who was owed some money by Peters. It was attached because it had
not been transferred to Muwandi
as the Council officials had been too
busy to attend to the transfer. It was, therefore, still registered
in Peters name.
on 16 March 2000 Peters right, title or interest in the
property was sold by public auction to Moyo for $225 000.00.
It was only after the conclusion of that sale that Moyo discovered
that Peters had earlier sold the same right, title or interest
surprisingly, when Moyo sought the transfer to him of Peters
right, title or interest in the property, Muwandi filed an urgent
chamber application in the High Court seeking an order restraining
the transfer of the right, title or interest to Moyo, setting
the sale in execution, and declaring Muwandi the sole owner of the
right, title or interest. As already indicated, a provisional
was granted on 24 May 2000 and was thereafter confirmed on
16 November 2001. Aggrieved by that decision, Moyo appealed
dealing with the issues arising in this appeal, I wish to point out
that the legal practitioners in this matter have erroneously
word sale to describe what in fact is a cession of rights.
That is so because the property belonged to the City
of Bulawayo and
not to Peters.
McNALLY JA stated in Gomba
1992 (2) ZLR 26 (S) at 27G-28B:
so often happens, the parties have used the word sale to
what is in reality a cession of rights, since the house actually
belongs to the Chitungwiza Town Council.
. It is unfortunate
legal practitioners persist in ignoring the distinctions between sale
and cession of rights in these cases, both because there
such cases and because there are many such distinctions.
this case the respondent was not the owner of the disputed immovable
property but merely a lessee-to-buy. The contract
in terms of
which the respondent acquired and held her rights in the property,
and which defined her rights in the property, was
not before the
Court. Nor was the owner cited as a party.
although in the court a quo
the owner of the property was cited, Peters, the lessee-to-buy, was
not cited as one of the respondents. In addition, the contract
terms of which Peters acquired and held his rights in the property,
and which defined his rights in that property, was not placed
the court. It should have been.
said that, I would like to state the issues which arise in this
appeal. There are two main issues. The first is whether
time the right, title or interest in the property was attached by the
Deputy Sheriff it had already been transferred to Muwandi;
second is whether, if it had not yet been transferred, there was any
basis for setting aside the sale in execution. I shall
the two issues in turn.
With regard to the first issue,
there can be no doubt that when the right, title or interest in the
property was attached and subsequently
sold by public auction on
16 March 2000 it had not yet been transferred to Muwandi. That
is quite clear from Muwandis founding
affidavit, the relevant part
of which reads as follows:
of August 1999 I purchased house number 11542 Redthorn Road,
in terms of a written agreement of sale
which was given to the Housing Officer at Mzilikazi. I
was in the process of transferring the property to my name
as appears from the letter from the Director of Housing and Community
Services dated the 7th April
2000 and attached as A. (emphasis added).
relevant part of the letter referred to reads as follows:
write to confirm that the sale of the above house
communicated to my Housing Officer Mzilikazi on 19th August
1999, with a copy of the Memorandum of Agreement of Sale made and
signed by the two parties, who were seeking transfer
of the property.
workload, the transfer has not yet been effected.
already indicated, the letter was dated 7 April 2000, about
three weeks after the right, title or interest in the property
been sold by public auction.
It is clear,
therefore, that when the right, title or interest was sold by public
auction it belonged to Peters and not to Muwandi
because it had not
yet been transferred to Muwandi. Prima
therefore, the judgment creditor was entitled to have it attached and
being the case, I now consider the second issue, which is whether
there was any basis for setting aside the sale in execution.
think there was.
Whilst it is
correct that a judgment creditor has the right to have attached and
sold in execution property registered in the name
of the judgment
debtor, that right is merely a prima
one. As KOTZÉ J said in Van Niekerk
1913 CPD 457 at 458-459:
seems to me that the plaintiff being a judgment creditor, and the
property being still registered in the name of the defendant,
the plaintiff has the right to ask that the property shall be seized
in execution, unless the party interested can show that there
special circumstances why such an order should not be granted. Here
there was an alleged donation prior to the debt, and there
to lead me to consider that it was not bona
but under the circumstances of the case that does not seem sufficient
to deprive the judgment creditor of his right to seize the
in execution. Had the son acted a little more promptly transfer
could have passed to him.
was a case in which a debtor had donated but not transferred the
property in question to his son, and the son had not acted
to secure the transfer of the property to him.
question which now arises is whether Muwandi showed that there were
special circumstances why Peters right, title or interest
property should not have been attached and sold. I think he did.
In my view,
the facts of the present case are different from those in
In the present case, after the conclusion of the written agreement
of sale on 17 August 1999, Muwandi acted promptly.
Peters took the document to the Council Offices on 19 August
1999 in order to have the cession of Peters right,
interest in the property effected. Regrettably, as the officials
at the Council Offices were too busy to attend to the
cession on that
day they advised Muwandi and Peters to leave the document with them
and indicated that the cession would be effected
in due course. The
cession was not attended to for at least eight months thereafter, and
the only reason given for that unacceptable
situation was that the
officials concerned were too busy to attend to the cession.
apart from the fact that Muwandi acted promptly and was not to blame,
there is the additional fact that Muwandi took occupation
property on 30 September 1999 as agreed by the parties. This
was long before the attachment and sale in execution.
am therefore satisfied that Muwandi proved that special circumstances
existed which justified the setting aside of the attachment
in execution of Peters right, title or interest in the property,
notwithstanding the fact that it was still registered
name. On that basis alone, Muwandi was entitled to succeed.
the circumstances, the appeal is dismissed with costs.
appellant's legal practitioners
Moyo-Majwabu & Nyoni,
respondent's legal practitioners