MATHONSI
JA: The
appellant brought an urgent chamber application in the High Court for
a stay of the execution of a judgment obtained by the first
respondent against the second and third respondents on 12 February
2018 in the sum of US$352,851,30 together with interest and costs of
suit.
By
judgment delivered on 21 August 2020, the High Court dismissed the
application with costs. This appeal is against that judgment
dismissing the appellant's urgent application.
THE
FACTS
The
third and fifth respondents, who are husband and wife, hold title to
Stand 67 Guildford Estate Township of Subdivision H of Guildford of
Borrowdale Estate, also known as No.67 Guildford Crescent, Borrowdale
Harare, (the house) by Deed of Transfer Number 1447/2009. On 15
November 2013 they entered into a deed of sale in terms of which they
sold the house to the appellant for US$380,000.00 payable in certain
instalments from 30 November 2013 to 30 June 2014.
There
is no convergence between them as to whether the full purchase price
was paid.
The
appellant alleges having paid part of the purchase price through the
sale of his own neighbouring house through the agency of the second
respondent and part of it through the sale to the third respondent of
his Mercedes Benz S Class motor vehicle.
The
appellant alleges further that although he failed to pay the cash
balance of the purchase price in accordance with the agreement, he
has however paid it in full.
On
the other hand the third and fifth respondents' position is that
the appellant defaulted in his payments and after giving him the
requisite 30 days notice in terms of the deed of sale, they duly
cancelled the agreement.
Notwithstanding
such cancellation the appellant still sued the second, third and
fifth respondents in case number HC11367/15, which was filed on 20
November 2015, for an order compelling transfer of the house to
himself and for their eviction from it.
The
summons action in question was defended and does not appear to have
been prosecuted with any zeal thereafter.
Meanwhile
the second and third respondents were sued by the first respondent in
case number HC11601/17 which summons action was filed on 14 December
2017. He obtained judgment against them on 12 February 2018 in the
sum of US$352,851.30 plus interest and costs of suit aforesaid. A
writ was thereafter issued which the fourth respondent was instructed
to execute. In pursuance whereof the house in dispute was placed
under judicial attachment.
Following
the attachment, the appellant lay a claim to the house motivating the
fourth respondent to institute interpleader proceedings under case
number HC7525/19.
By
judgment delivered on 9 June 2020 in The
Sheriff for Zimbabwe v Humbe & Anor
HH378/20, CHINAMORA J dismissed the appellant's interpleader claim
and declared the house executable.
The
judgment remains extant and has not been appealed against.
Instead,
the appellant filed a further application on 21 July 2020 under case
number HC3805/20. He sought an order setting aside the writ of
execution in terms of which the house was attached. The basis of the
application was that the Sheriff was enjoined by r326 of the High
Court Rules to first diligently pursue the attachment of a debtor's
movable property before going against immovable property.
In
addition, the appellant took the view that the house could not be the
subject of execution as it was res
litigiosa
having been the subject of litigation in HC11367/15.
In
the same application the appellant also sought a declaration that his
rights in the house “preceded” those of the first respondent. He
also sought an order that the house be transferred to him.
This,
the appellant sought, in spite of the judgment of CHINAMORA J issued
on 9 June 2020 which, as I have said, remains extant.
At
the same time that the appellant filed the court application in case
number HC3805/20, he also filed the urgent chamber application for
interim relief of a stay of execution which is the subject of the
present appeal.
The
application was opposed by the first, second, third and fifth
respondents.
The
stay of execution was sought pending the finalisation of his claim in
HC11367/15 and his application for a declaratory order and the
setting aside of the writ which is case number HC3805/20.
DECISION
A
QUO
The
court a
quo
found that the appellant had failed to pay the full purchase price
for the house in terms of the deed of sale. In doing so the court a
quo
was fortified by the fact that the deed of settlement signed by the
appellant and the third respondent on 12 December 2017 which,
although later repudiated by the third respondent as having been
procured by duress, acknowledged that there was still an outstanding
sum of US$50,000.00.
The
court a
quo
recognised that both rules 326 and 327 of the High Court Rules
provide for options to a party which applied for the issuance of a
writ. They do not provide a remedy to the appellant.
After
criticizing the interim relief sought by the appellant which was the
same as the final order sought, the court a
quo
wondered how the appellant could have filed further applications in
the face of the judgment of CHINAMORA J which I have alluded to
above.
It
was the court a
quo's
finding that given that the house was registered in the names of the
third and fifth respondents they hold real rights over the house.
The
appellant never acquired any real rights over it.
The
attachment of the house by the Sheriff in pursuance of a writ of
execution gave the first respondent, as the judgment creditor in
whose favour the writ was issued, a pignus
judiciale
on
it created by the attachment. That is to say an attachment creates a
judicial mortgage on the property so attached.
The
conclusion of the court a
quo
was that the appellant failed to establish a prima
facie
right over the house as would entitle him to a stay of execution.
His
claim through interpleader proceedings having failed and the house
declared executable, the appellant was seeking “to mount a second
bid based on essentially the same facts.” He was precluded from
doing so because the court a
quo
had already pronounced itself on the issue.
Overcome
by grief as a result, the appellant launched this appeal on grounds
set out below:
GROUNDS
OF APPEAL
1.
The court a
quo
erred in fact and grossly misdirected itself in finding that the
appellant breached the contract of sale by failing to pay the full
purchase price by the date that the price was due.
2.
The court a
quo
erred in fact and grossly misdirected itself in finding that the
appellant caused the arrest and prosecution of the fifth respondent
on fabricated allegations of fraud and coerced the third respondent
to sign the deed of settlement using the fifth respondent's arrest.
3.
The court a
quo
erred at law and grossly misdirected itself in finding that the
dispute between the parties in the instant matter is res
judicata.
4.
The court a
quo
erred at law and grossly misdirected itself in disregarding that the
property in dispute is res
litigiosa
and in further failing to give any reasons for such discount.
5.
The court a
quo
erred at law and grossly misdirected itself in disregarding that the
application was an application for stay of execution pending a court
application in terms of r340 of the Rules of the High Court and in
failing to give any reasons for such discount.
6.
The court a
quo
erred at law and grossly misdirected itself in determining that the
interim relief was the same as the final relief and as such the
relief could not be granted when in fact the interim and final
reliefs were different and even if the reliefs were the same, the
court could and it ought to have granted it either way even if it
were to be found to be the same.
7.
The court a
quo
erred at law and grossly misdirected itself in exercising its
discretion without addressing the requirements of and purpose for
proceedings for stay of execution.
8.
The court a
quo
erred at law and grossly misdirected itself in finding that r326 of
the High Court Rules can only be invoked by a person who applied for
the writ of execution.
ISSUE
FOR DETERMINATION
Clearly
the grounds of appeal stray from the field of discourse. They seem to
attack every pronouncement in the judgment a
quo
without identifying the ratio
decidendi.
The
court a
quo
dismissed the application because it made a finding that the
appellant failed to prove a prima
facie
right over the house. This was more so regard being had that the same
court had already pronounced itself when it declared the house
executable.
In
that regard, only one issue commends itself for determination in this
appeal. It is whether the court a
quo
erred in dismissing the application for stay of execution.
THE
LAW
The
appellant approached the court a
quo
for a stay of execution pending the prosecution of a summons claim to
compel transfer of the house to himself, which by then had been
pending for 5 years, and a court application which seeks both a
declaratory order that he possesses superior rights in the house and
that the house be transferred to him.
The
court application also seeks the setting aside of a writ issued in
favour of the first respondent against a house not registered in the
appellant's name but those of the judgment debtors in that suit.
The
execution of a judgment is a process of the court.
The
court therefore retains an inherent power to manage that process
having regard to the applicable rules of procedure.
What
is required for a litigant to persuade the court to exercise its
discretion in favour of granting a stay in the execution of the
court's judgment has been stated in a number of cases.
In
Mupini
v Makoni
1993 (1) ZLR 80 (S) at 83B–D this Court stated the position of the
law quite clearly:
“In
the exercise of a wide discretion the court may, therefore, set aside
or suspend a writ of execution or, for that matter, cancel the grant
of a provisional stay. It will act where real and substantial justice
so demands. The onus rests on the party seeking a stay to satisfy the
court that special circumstances exist. The general rule is that a
party who has obtained an order against another is entitled to
execute upon it. Such special reasons against execution issuing can
be more readily found where, as in casu, the judgment is for
ejectment or the transfer of property, for in such instances the
carrying of it into operation could render the restitution of the
original position difficult. See Cohen
v Cohen
(1) 1979 ZLR 184(G) at 187C; Santam
Ins Company Limited v Paget
(2)
1981 ZLR 132(G) at 134G–135B; Chibanda
v King
1983 (1) ZLR 116 (H) at 119C-H; Strime
v Strime
1983 (4) SA 850 (C) at 852A.”
It
is settled in this jurisdiction that a judgment creditor is entitled
to attach and have sold in execution the property belonging to the
judgment debtor. This is so even in a situation where a third party
has a personal right against such a debtor in respect of the same
property. The position is the same even where the personal right of
the third party preceded the attachment of the property. See
Herbstein and Van Winsen, Civil
Practice of The Superior Courts in South Africa
3Ed at p597 (quoted with approval in Maphosa
& Anor v Cook & Ors
1997
(2) ZLR 314 (H) at p316G).
To
that should be added the hallowed principle of our law that the
conveyance of ownership in immovable property from person to person
is achieved through the registration of transfer at the deeds
registry. Real rights in an immovable property are held only by
registration at the deeds registry. This was underscored by this
Court in the seminal remarks made in Takafuma
v Takafuma
1994 (2) ZLR 103 (S) at 105G-106A;
“The
registration of rights in immovable property in terms of the Deeds
Registries Act [Chapter
20:05]
is not a mere matter of form. Nor is it simply a devise to confound
creditors or the tax authorities. It is a matter of substance. It
conveys real rights upon those in whose name the property is
registered. See the definition of 'real right' in s2 of the Act.
The real right of ownership, or jus
in re propria,
is 'the sum total of all the possible rights in a thing' – see
Wille's Principles
of South African Law
8ed
p255.”
A
party which lays a claim to property which has been placed under
judicial attachment by the Sheriff in the discharge of his or her
duties as the executive of the court, has remedies provided for in
the rules of court.
Such
a party is required to submit a claim to the Sheriff in order to
trigger the institution by the latter of interpleader proceedings in
terms of Order 30 of the High Court Rules.
The
court resolves the conflicting claims of parties in interpleader
proceedings by either upholding the claimant's claim or dismissing
it.
Where
it finds the claimant's claim to be without merit, the court, in
addition to dismissing the claim, ordinarily declares the property
under attachment executable. The result is the opposite where the
claim is upheld.
In
the present case, after raising essentially the same arguments as in
the urgent chamber application the subject of this appeal, the
appellants' interpleader claim was dismissed by the court a
quo.
It declared the house executable at the instance of the first
respondent.
APPLICATION
OF THE LAW TO THE FACTS
The
first respondent has an extant judgment in his favour issued against
the second and third respondents. The judgment is sounding in money
and it was in pursuance of it that a writ of execution was issued
against the house.
The
house is registered at the Deeds Registry in the name of one of the
judgment debtors. It is the same house which the appellant lays a
claim to by virtue of a deed of sale which ran into turbulence.
The
dispute between the appellant and those of the respondents who sold
the house to him had not been resolved by the courts at the time that
the first respondent instructed the Sheriff to attach the house for
sale in execution.
On
the authorities that I have made reference to above the judgment
creditor, who is the first respondent, was entitled at law to have
attached and sold in execution, the house which is registered in the
name of his debtor.
The
appellant is a third party who only has personal rights exercisable
against the debtor in respect of the ownership and possession of the
house.
As
much as those personal rights came about prior to the attachment, or
may have arisen prior to the first respondent's cause of action
that is of no moment in law.
The
court a
quo
cannot be faulted for its finding that the attachment of the house in
execution created a judicial mortgage or pignus
judiciale.
The
appellant's situation is exacerbated by the failure of his
interpleader claim and the prior declaration made by the court a
quo,
that the house was executable in favour of the first respondent.
In
dismissing the appellant's claim to the same house CHINAMORA J, who
determined the interpleader, relied on a line of authorities to the
effect that where the house is registered in the name of the judgment
debtor, he or she remains the owner of the property. For that reason
it is susceptible to execution. The learned Judge concluded:
“In
casu,
the judgment debtor has title to the property. It is indeed immovable
property. However I propose to equate possession in the case of
movable goods to title in respect of immovable property. To the
extent that possession and title raise a rebuttable presumption of
ownership, the principle in Zandberg
v Van Zyl
(1910 AD 258 at 272) applies to immovable property. The starting
point is to examine the legal implication of title. Title confers
real rights in immovable property. It cannot be gain said that a
title deed is prima
facie
proof that a person enjoys real rights over the immovable property
defined in the deed.”
(The
Sheriff for Zimbabwe v Humbe and Another, supra).
It
is against the foregoing background that the appellant approached the
court a
quo
for the second time, seeking a stay of execution to enable him to
pursue the determination of the parties' rights in the house all
over again.
Those
rights had already been determined by the same court in a judgment
that was not impugned and remains extant.
In
my view the court a
quo
cannot be faulted for coming to the conclusion that after the
appellant had chosen to pursue interpleader proceedings, which
failed, he could not mount a second bid in the same court based,
essentially, on the same facts.
It
is true that the court a
quo
had already pronounced itself on the status of the house having
declared it executable.
It
is not the number of times that a litigant approaches the court
seeking recourse which determines a matter in the litigant's
favour, but the existence of a sustainable cause of action.
In
this case there was none.
DISPOSITION
I
have set out what an applicant for a stay of execution is required to
establish in order to motivate the exercise of the court's
discretion in his or her favour, namely that special circumstances
exist for the court to halt its own execution process.
The
appellant dismally failed to discharge that onus.
This
is a case in which the same property had been declared executable by
judgment of the same court. He had not appealed that judgment leaving
it binding against the parties.
It
would have been extremely incompetent for the court a
quo
to grant a stay of two judgments of its own definitively settling the
rights of the parties.
In
addition, the house lawfully registered in the name of a judgment
debtor had been placed under attachment in execution of a valid
judgment.
The
appellant only possessed personal rights against the debtor which
could not override real rights in law.
There
was no legal basis for a stay and certainly no special circumstances
as would invite the court to grant it.
I
do not agree with Mr Muhlekiwa's
submissions that the appropriate order should have been the striking
off of the application from the roll.
The
reasons advanced for that proposition are clearly wrong.
The
application was determined on the merits, the court having found that
it lacked merit. It could only be disposed of by its dismissal.
Regarding
the question of costs, this is an ill-conceived appeal, wholly
without merit and predicated on extraneous grounds. I see no reason
why costs should not follow the result.
In
the result it be and is hereby ordered as follows:
1.
That the appeal is dismissed.
2.
That the appellant shall bear the costs.
BHUNU
JA: I
agree
KUDYA
AJA: I
agree
Antonio
& Dzvetero,
the
appellant's legal practitioners
Muhlekiwa
Legal Practitioners,
the
2nd,
3rd
and 5th
respondent's legal practitioners
