MATANDA-MOYO
J:
The
applicant obtained default judgment against the first respondent in
case No. HC12599/11 on 7 March 2012 in the sum of $4,000-00, delivery
of 1,120m3 of sawn timber or alternatively $392,000-00 together with
interest at the prescribed rate plus costs of suit.
The
applicant has not executed on the judgment to date.
Initially
the applicant brought this application against the first and second
respondent. Third respondent sought to be joined in the matter
claiming she had interest therein. Such joinder was granted.
This
is an application for an interdict barring first respondent from
disposing of a certain piece of property namely Stand 13552 Salisbury
Township of Salisbury Township Lands measuring 1569m2
held by first respondent under deed of transfer number 5750/94 dated
21 September 1994.
The
applicant also seeks an order declaring the above property specially
executable in order to satisfy the judgment debt owed to the
applicant under case No HC12599/11.
Applicant
also sought costs of suit from the first respondent.
First
respondent opposed the application.
In
his opposition first respondent sought an order for rescission of
judgment in HC case number 12599/11.
First
respondent has failed to meaningfully respond to the present
application.
The
first respondent seeks to rescind a default judgment via filing of
opposition. Such procedure is irregular and not in compliance with
the rules of this court.
Rule
63 and r449 of the High Court Rules 1971 deals with applications for
rescissions of judgment.
Such
application will take the format prescribed in r230, that is, must be
in form No. 29.
Rule
229A provides for counter applications which are the equivalent of a
counter claim in an action matter. It provides:
“(1)
where a respondent files a notice of opposition and opposing
affidavit, he may file, together with those documents a
counter–application against the applicant in the form, mutatis
mutandis, of a court application or a chamber application whichever
is appropriate.”
From
the above it follows therefore that a counter relief can be sought
against an applicant by a respondent under a separate heading than
the notice of opposition and opposing affidavit.
It
is a standalone claim made against an applicant.
Even
if the applicant later withdraws his application the counter
application could be proceeded with.
In
the matter in casu the purported counter claim by the first
respondent is not in terms of the rules of this court and is
therefore invalid. The purported counter application for rescission
of judgment is therefore improperly before the court and cannot be
entertained.
Since
the first respondent has not opposed the relief sought by the
applicant the first paragraph of the order stands unopposed.
This
was also confirmed by the counsel for the third respondent.
The
only issue which falls for determination is whether I should declare
the property in question specially executable.
The
third respondent has opposed the granting of the relief sought on the
basis that she has an interest in the property.
The
third respondent was customarily married to the first respondent and
the two have one minor child.
It
is common cause that the third respondent and the minor child reside
at the property in question. The respondent opposed the attachment of
the immovable property on the basis that she owns 50% share of the
value therein.
The
third respondent relied on a provisional order granted in her favour
on 20 March 2001 by ORMERJEE J (as he then was) in HC2784/01. The
order was granted against the first respondent. The order was in the
following;
“PROVISIONAL
ORDER TERMS OF ORDER MADE:
That
you show cause to this Honourable Court why a final order should not
be made in the following terms;
1.
That the first respondent be and is hereby interdicted from selling
the matrimonial home, namely, Stand No. 13552 Salisbury Township of
Salisbury Township lands situated in the District of Salisbury also
known as No.48 Don Judson Road, Milton park, Harare, registered in
the name of the first respondent under Deed of Transfer No. 5750/9
pending determination in the appropriate court by the applicant of a
claim for her share in the matrimonial home and pending the
finalisation of that suit.
2.
That alternatively in the event that the transfer has been done the
first respondent is hereby interdicted from receiving any proceeds
from the sale of the property without paying the applicant the sum of
$1,000,000-00 being the applicant's half share of the value of the
property or failing agreement thereon pending determination as the
applicant's claim in the appropriate.
3.
That second respondent be and is hereby interdicted from transferring
or registering the transfer of Stand No 13552 ------- to any third
party pending the finalisation of applicant's claim for a share in
the matrimonial property in a, and competent count as stipulated in
para1 above.
INTERIM
RELIEF GRANTED
That
pending the determination of this matter the applicant is granted the
following relief:
1.
The first respondent be and is hereby interdicted from selling the
matrimonial home namely Stand 13552 ---- known as No.48 Don Judson
Road, Milton Park, Belvedere, Harare ----- pending the filing in the
appropriate court by the applicant of a claim for her share in the
matrimonial home within 7 days of the granting of this order. (my own
underlining).
2.
That the second respondent be and is hereby interdicted from
transferring or registering the transfer of Stand 13552------
registered under Deed of transfer No. 5750/94 to any third party
pending the finalisation of the applicant's claim for a share in
the matrimonial property in a, and by competent court stipulated in
para 1 above.
3.
That alternatively in the event that the transfer has been effected,
the first respondent is hereby interdicted from receiving any
proceeds from the sale of the property without paying the applicant
the sum of $1,000,000-00 or failing agreement on the value of
applicant's share, pending the determination of the applicant's
claim in the appropriate court as set out in para 1 above.”
The
above provisional order was never confirmed.
I
also did not hear the third respondent to be saying she brought a
claim for the share of the matrimonial home in compliance with para 1
of the interim order granted. Such action was to be brought within 7
day of the order. Such period has since lapsed.
In
any case a provisional order simply grants prima facie rights. A
provisional order should be real rights.
What
the above order did was to bar the first respondent herein from
selling the matrimonial property. Such order did not extend to
banning sale by execution.
Counsel
for the applicant referred to Herbstein and Van Winsen 3ed in Civil
Practice of the Superior Courts in South Africa where the author
says:
“A
judgment creditor is entitled to attach and have sold in execution
the property of his debtor notwithstanding that a third party has a
personal right against such a debtor to the ownership or possession
of such property, which might arose prior to the attachment or even
the judgment creditors's cause of action, and of which the judgment
creditor had notice when the attachment was made. An attachment in
execution creates a judicial mortgage or pignus judiciale.”
Counsel
for the applicant argued that the third respondent's rights in the
immovable property are of a personal nature. She does not have real
rights in the property as her name does not appear in the deed
registry as co-owner of the property.
He
argued that the third respondent's rights even if accepted, are not
such as to result in a situation where property is excluded from
execution.
What
are the third respondent's rights in the property?
It
is common cause that no competent court of law has declared the
rights of third respondent in the immovable property. The third
respondent attempted to rely on the interim order granted above in
her favour, in a matter between her and the first respondent.
As
I reiterated above, the third respondent has failed to persue the
interim relief to finality. It remains a prima facie right.
The
third respondent submitted that she has been staying in the house
together with a son she had with the first respondent. The third
respondent wants the applicant to respect her 50% share in the
property.
I
am of the view that the third respondent has personal rights in the
property but such rights are as against the first respondent. Such
rights cannot stop a judgment creditor from selling the property in
execution.
BUNNS–WORD
J in ABSA Bank Ltd v Peterson (934/2011) (2012) ZA WCHC 18 at para 33
said:
“It
is only when the exercise of the mortgage's right (to realise the
security) is in bad faith that effect should not be given to the
right. An indication of bad faith would be provided if the mortgage
seeks to proceed with execution against the defendant's home when
it is evident that the judgment debt can probably be satisfied in a
reasonable manner, without involving the drastic consequences of the
loss of the mortgaged home.”
The
above can be applied with equal force in this scenario where a
judgment creditor intends to execute on a home.
The
respondents did not argue that they are capable of settling the debt
using other means. The first respondent has not been making payment
towards the debt. There is therefore, no evidence of malice on the
part of the judgment creditor that has been placed before me.
I
am satisfied that this is a case where execution against the first
respondent's property should be ordered.
The
first respondent has not shown any intention nor capacity to pay the
judgment debt in reasonable instalments. There has been no evidence
placed before me that the first respondent has movables which could
be executed upon to satisfy the debt. The third respondent has not
acted with diligence in protecting her rights in the above property.
As
was reiterated in Mavhunduse v UDC Ltd & Ors 2001 (2) ZLR 337
that:
“Until
such time as title deeds are issued in respect of plot 216, and
ownership thereof is registered in the Deeds Registry in the name of
a particular planter, all that the applicant and the purchaser can
acquire are rights and interests in the plot. Such rights are
personal to the holder thereof. They are not real rights.”
I
am in the result satisfied that the applicant has met the rest for
the granting of the interdict sought. Accordingly, it is ordered as
follows:
(1)
That the application for a mandament, restraining the first
respondent from disposing or otherwise alienating the immovable
property be and is hereby granted.
(2)
That the immovable property known as stand 13552 Salisbury Township
of Salisbury Township lands held by the first respondent under deed
of transfer number 5750/94 dated 21 September 1994 be and is hereby
declared specially executable.
(3)
That the first respondent shall pay costs of suit.
Scanlen
& Holderness, Applicant's Legal Practitioners
Mandizha
& Company, 3rd Respondent's Legal Practitioners
