The
applicant owns an un-divided half share of the remainder of Lot 417
Highlands Estate of Welmoed (herein referred to as “the property”).
The other undivided half share was owned by the third respondent.
The third respondent is a Trust created by the applicant and her
husband, one Joseph Kanyeta Lambert.
The
first
respondent, a Bank,
advanced a credit facility to a company called Real Distributors
(Pvt) Ltd. The third respondent bound itself as surety for all
amounts drawn down by Real Distributors (Pvt) Ltd. On 12 April 2011,
the first respondent issued summons in case no HC3630/11 against Real
Distributors (Pvt) Ltd, the third respondent, the applicant's
husband and three others for the recovery of amounts owing under the
credit facility. On 29 October 2013, the third respondent entered
into a Deed
of Settlement
with the first respondent accepting liability. Upon failing to meet
the terms of the deed of settlement, the first respondent obtained
judgment on 29 October 2013 against the third respondent. The
judgment was by consent of the third respondent.
The
third respondent was duly represented by Messrs Bherebhende Law
Chambers. The fourth respondent attached the third respondent's
undivided half share in the property on 24 July 2014, in pursuance of
a writ of execution, and has instructions to dispose of the
un-divided half share.
It
is this attachment and intended disposal of the share that prompted
the applicant to file the present application. The application is for
stay of execution of the judgment in HC3630/11 pending a
determination of the applicant's rights and extent thereof in the
property.
The
applicant contends that she was not aware of and is not a party to
the proceedings in HC3630/11. She did not consent to the granting of
that judgment. The third respondent intends to dispose of the entire
property. Such disposal will affect her real rights in the property.
She is not willing to dispose of her undivided half share as she
resides in the property with her family and considers the property to
be the matrimonial home. Counsel for the applicant referred to the
case of Gonyora v Zenith
Distributors (Pvt) Ltd
2004 (1) ZLR 195 in support of the above proposition.
The
first respondent responded that it does not intend
to dispose of the entire property. The order in HC3630/11 is clear
that it was awarded the third respondent's undivided half share. It
is that share that has been attached and that it wishes to dispose of
in satisfaction of the judgment. It is not required to secure the
applicant's consent.
Counsel
for the first respondent
submitted that Gonyora
v Zenith Distributors (Pvt) Ltd
2004 (1) ZLR 195 is distinguishable from the present case in that the
entire property, including the applicant's undivided share had been
sold at a sale in execution. The applicant had not been a party to
the proceedings and had not consented to the sale….,.
Mr
Chivhinga
submitted that the third respondent was consenting to the relief
sought. No further submissions were made for the third respondent.
The
issue for determination is, in my view, whether a co-owner cannot
alienate his or her undivided share in an immovable property. Put in
the context of the present case, the issue is whether or not the
first respondent is precluded, at law, to dispose of the third
respondent's un-divided half share.
The
law is set out in SILBERBERG and
SCHOEMAN's
The Law of Property 5th ed…,. It is stated
that:
“Every
co-owner has the right, freely and without reference to co-owners, to
alienate his or her share, or even part of his or her share subject
of course to the provision of the subdivision of Agricultural Land
Act. It is this right which is probably the most important
characteristic which distinguishes a co-owner per se from all other
forms of co-ownership such as partnerships and associations. It is
clear that the exercise of this right may lead to friction in that it
enables one co-owner to force the others into a legal relationship
with a party or parties which they do not desire.”
This
pronouncement has been made in a number of cases.
In
Masubey v Masubey 1993 (2)
ZLR 36 (HC) the court was confronted with an issue whether or not a
deceased was, during his lifetime, entitled to grant a usufruct over
or usus or
habitatio of part of
immovable property co-owned without the consent of a co-owner (the
applicant in that matter). SMITH J…, observed..., that:
“From
the above, it seems clear to me that whilst the deceased was
entitled, prior to his death, to dispose of his half share of the
property to the respondent, either by donation inter
vivos or by testamentary disposition, he was not entitled to
grant a usufruct over or usus
or habitatio of
part of the property without the consent of the applicant. The rights
of the applicant would clearly be infringed by any such right being
granted to a third person.”
As
rightly noted by counsel for the first respondent, Gonyora
v Zenith Distributors (Pvt) Ltd
2004 (1) ZLR 195 is clearly distinguishable from the present.
The
facts of that case were that the applicant and the fourth respondent
were husband and wife. They co-owned the property in issue. The first
respondent obtained an order against the fourth respondent for the
discharge of a debt owed to it by the fourth respondent. The Deputy
Sheriff attached and sold the property by auction. The applicant had
not been a party to the proceedings and had not consented to the
sale. In holding that the sale was irregular, GOWORA J observed…,
as follows:
“From
the circumstances of this sale, it is not in doubt that the Messenger
did not ask the fourth respondent to deliver documents in proof of
ownership of the immovable property, as such documents would have
shown that the property sought to be attached was jointly owned with
the applicant who could not, by any stretch of the imagination, be
described as an execution debtor thereby entitling the Messenger to
attach and sell in execution her half share in the immovable
property. The applicant, as a joint owner to the Stand would be
entitled to deal with her property in a manner she found appropriate.
This includes alienation of her share. It is inconceivable and
legally impossible that her share could be lawfully attached and sold
in execution without causa.
As there was no attachment in respect of the applicant's half
share of the immovable Stand it could not be sold in execution to
satisfy the first respondent's claim against the fourth
respondent.”
The
above does not, therefore, support the applicant's proposition.
The
judgment and the writ of execution only refer to the third
respondent's undivided share. It is clear from the above that there
is nothing to prevent the alienation of the third respondent's
un-divided share. The first respondent can alienate, as it wishes,
the undivided half share of the property.
In
the result, the application is dismissed with costs.
