The judgment creditor is Kreamorn Investments (Pvt) Ltd. On
5 March 2013, the judgment creditor obtained judgment by consent against the
judgment debtors and three others for US$57,579=22 in case No. HC12609/12.
Pursuant to that judgment, the judgment creditor, through the applicant,
attached Stand No.4716 Prospect Township, also known as No.4716 Mainway
Meadows, Prospect, Waterfalls.
The property awaits execution.
The first and second claimants wrote to the applicant,
alleging that Stand No.4716 Mainway Meadows, Prospect, Waterfalls was wrongly
attached because it did not belong to the judgment debtors.
On 18 February 2014, the applicant instituted inter-pleader
proceedings in view of the conflicting claims inviting all three parties to
file their claims.
On 28 February 2014, the first and second claimants filed
opposing papers, giving their reasons why they contended that Stand No.4716
Mainway Meadows, Prospect, Waterfalls was wrongly attached. In paragraphs
7,8,9,10,11,16,17,18,19, 22,23 and 24 of their opposing affidavit, the
claimants argued that the attachment was wrong because the judgment debtors did
not obtain the first claimant's consent to encumber Stand No.4716 Mainway
Meadows, Prospect, Waterfalls before they tendered it in the Consent Order of 5
March 2013.
The Consent Order of 5 March 2013 read as follows:
“1. The defendants shall jointly and severally, the one
paying the other to be absolved, pay the plaintiff the sum of US$57,579=22.
2. The defendants shall pay the amount in 1 above as
follows:
2.1. US$10,000= on or before 30 March 2013;
2.2. US$20,000= on or before 30 April 2013;
2.3. US$14,000= on or before 31 May 2013; and
2.4. US$13,922= on or before 30 June 2013.
3. The defendants shall jointly and severally, the one
paying the other to be absolved, pay the plaintiff's costs of suit on an
attorney and client scale.
4. The fourth defendant shall tender his property in Park
Meadowlands as additional security for the due performance of the defendants'
obligations in terms of this Consent Order and shall hand over all necessary
documents to the plaintiff's legal practitioners to perfect the security.”
The third and fourth defendants in Case No. HC12609/12 were
Lucia Marimo and Bernard Marimo. They are the ones in possession of Stand
No.4716 Mainway Meadows, Prospect, Waterfalls.
The first claimant is taking issue with paragraph 4 of the Consent
Order in case HC12609/12 wherein the fourth defendant, Bernard Marimo, tendered
“his property in Park Meadowlands.” The first claimant is saying in terms of
its own agreement with Bernard Marimo, the judgment debtor, Stand No.4716
Mainway Meadows, Prospect, Waterfalls could not be encumbered without the first
claimant's consent. The first claimant referred to the relevant clause in its
agreement with the judgment debtor which reads as follows:
“Until the Stand is transferred by the Society (FBC) to the
purchasers, the purchasers shall not cede or assign their rights and
obligations under this agreement nor otherwise alienate or encumber their
rights hereunder without the written consent of the Society.”
The claimants argued that because the attachment has been
brought about by a Consent Order which encumbered Stand No.4716 Mainway
Meadows, Prospect, Waterfalls without the claimant's written consent, the Consent
Order is not valid, and, consequently, the attachment is null and void and the
applicant should release the property to the claimants.
Unfortunately, the claimants' argument, though spirited, is
based on a wrong factual basis. What was tendered in paragraph 4 of the Consent
Order was 'his property in Park Meadowlands,' not Stand No.4716 which is in
Mainway Meadows in the Waterfalls area. So the property which was attached by
the applicant is not the property which was tendered in the Consent Order. So
the factual basis for the argument raised in the first claimant's opposing
affidavit is wrong. If the factual basis is wrong; the conclusion also becomes
wrong.
Indeed, the judgment creditor responded to that effect,
that it did not attach the property in the Consent Order; it simply looked for
a property in which the judgment debtor had real rights and attached it.
During the oral hearing in court, first claimants' counsel
conceded that the property referred to in the Consent Order is not the same
property which was attached. This means that the basis for the claimants'
opposition, as given in the opposing affidavit, that the judgment debtor had no
authority to encumber Stand No.4716 Mainway Meadows, Prospect, Waterfalls falls
away.
In addition, the claimants claimed to be the owners of Stand
No.4716 Mainway Meadows, Prospect, Waterfalls.
The second claimant has a certificate of registered title
for a larger piece of land measuring 7,6793 hectares in Subdivision M of
Prospect. The Stand is called Stand 2491 Prospect Township of Subdivision M of
Prospect. In April 2010, the second claimant sold Stand No.4716 Prospect
Township of Stand 2491, measuring 540 square metres to first claimant. In
September 2010, the first claimant sold Stand No. 4716 Prospect Township of
Stand 3202 measuring 540 square metres in the District of Salisbury.
You will note that the second claimant owned Stand 2491,
albeit a larger portion, and that is what it sold to the first claimant. But in
the sale between the first claimant and the judgment debtors, namely Bernard
Marimo and Lucia Marimo, the Stand Number suddenly changed from 2491 to Stand
3202. No explanation is given for the appearance of this different Stand Number
by the claimants either in their opposing affidavit or their Heads of Argument
or during oral submissions. The judgment creditor raised this issue in its
opposing affidavit, but still there was no explanation why the Stand Number,
which was 2491 in the certificate of registered title has now changed to Stand
No. 3202. This creates doubt on whether the Stand which is owned by the second
claimant and was sold to the first claimant is the one which was sold to the
judgment debtors.
So, the second claimant has failed to adduce proof that it
is the owner of the judgment debtors' property which was attached by the
applicant.
To add to the confusion, the preamble to the agreement
between the first claimant and the judgment debtors…, paragraph 1 says the
first claimant obtained right, title and interest in;
Stand 4716 Prospect Township of Stand 3202 measuring 540
Square Metres in the District of Salisbury…, in terms of an Agreement of Sale
entered into on the 25th of April 2007 with Costains Africa
Limited.”
Yet, the Agreement of Sale for Stand No.4716 Prospect
Township of Stand 2491 was with Waymark Investments, the second claimant, on 9
April 2010.
This issue was raised by the judgment creditor in its
opposing papers yet it was not responded to or canvassed during oral
submissions. This tends to confirm that the property which was attached is not
the one which is owned by the second claimant. The second claimant does not
feature at all in the sale agreement between the first claimant and the
judgment debtors.
The second claimant has therefore failed to prove that it
owns the property which was attached.
The first claimant alleges it bought Stand 4716 through an Agreement
of Sale. We are no longer sure whether it bought the Stand from the second
claimant or from Costains Africa Limited but the fact of the matter is that it
admits that all it has is an Agreement of Sale.
It has no registered title.
Then, it entered into an Agreement of Sale with the
judgment debtors and advanced certain sums of money to the judgment debtors,
but it did not process a mortgage bond on the property as required by law.
So, on its own admission, the first claimant has no legal
basis to stop the attachment of Stand 4716. The judgment debtors' rights and
interest in Stand 4716 is what has been attached and this is permissible in
terms of Rule 343 and the first claimant has no legal basis to stop such
attachment. Previously decided cases have also accepted that such rights can be
attached and lawfully sold in execution. The case of Mavhundise v UDC Ltd &
Ors 2001 (2) ZLR…, confirmed that the
rights and interests in land can be lawfully sold in execution….,.
Accordingly, the first and second claimants'
claims to the attached property are hereby dismissed. Stand No.4716, Prospect
Township, also known as No.4716 Mainway Meadows, Prospect, Waterfalls is hereby
declared executable. The first and second claimants shall pay the applicant's
and judgment creditor's costs.
