Opposed
Matter
MATANDA-MOYO
J:
The
Judgment Creditor obtained judgment in its favour against Walter
Madziro in HC2110/12, for payment of the sum of $86,965-36 with
interest thereon at the rate of 36% per annum from 7 February 2012.
Subsequent
to that order the judgment creditor directed the applicant to attach
and take into execution the judgment debtor's immovable property
being stand 13594 Salisbury Township of Salisbury Township held by
the judgment debtor under Deed of Transfer number 503/2002. The
property is also known as number 28 MacGowan Road, Belvedere, Harare.
The applicant attached the above property and subsequent to such
attachment the claimant has laid a claim against the said property on
the basis that, such property was awarded to her and her children by
this court at the time of her divorce to the judgment debtor.
It
is common cause that during the divorce proceedings the claimants
were awarded the property in question, HC3431B/11 refers. Paragraph 4
of the consent paper which forms part of the order read:
“4.
The immovable property known as number 28 MacGowan Road, Belvedere,
Harare shall be transferred to and registered in the names of the
defendant (1st
claimant here-in), and the two minor children of the marriage namely
Anesuishe and Ruvarashe Madziro. Transfer shall be conducted within 6
months of the divorce order and the plaintiff (judgment debtor
herein) shall meet the costs of the transfer”.
To
date the property is still in the judgment debtor's name and no
reasons were advanced for that position.
The
question to be decided by this court is whether the claimants have
managed to prove that the property belongs to them and falls outside
the property which can be sold into execution to settle the judgment
debtor's obligations.
Counsel
for the judgment creditor argued that ownership of immovable property
is determined in terms of the Deeds Registries Act [Chapter
20:05].
Section 14 thereof provides that ownership of land maybe conveyed
from one person to another “only by means of a deed of transfer
executed or attested by a registrar”.
Counsel
argued that at the time of attachment the claimants had not taken
ownership of the property and therefore such ownership has never been
taken by the claimants. He argued therefore that the applicants have
failed to show that they own the property in question.
It
is trite that in terms of the Deeds Registries Act, the owner of an
immovable property is the registered owner.
In
Takafuma
v Takafuma
1994
(2) ZLR 103 (S) at pp105-106 the court said:
“The
registration of rights in immovable property in terms of the Deeds
Registries Act [Chapter
139]
is not a mere matter of form. Nor is it simply a device to confound
creditors or 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 rights' in section 2 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
Willie's
Principles of South African Law
8ed p255”.
No
doubt the property attached by the applicant in terms of the laws of
this country is the judgment debtor's property. Walter Madziro is
the owner of the property so attached.
This
brings me to claimants rights in the said property.
The
claimants have rights in the property conferred by this Honourable
Court. The court in granting those rights was aware that ownership
would only pass upon transfer of property to the claimants.
The
parties were also aware of the fact hence the inclusion of para 4 of
the consent order requiring the claimants to take transfer within 6
months of the order.
That
has not happened.
The
claimants have failed to comply with the court order they seek to
rely upon. No explanation has been given for such failure to comply
with the court order. Failure to take transfer means that the
judgment debtor remains the owner of the said property. It is only
the transfer of ownership of such property to the new owner that
brings about an end to the legal basis of the judgment debtor's
right to the use and ownership thereof.
I
am of the view that the court order granted the claimants the right
to transfer of property. Such right was not exercised by the
claimants. Such right remained a personal right which would convert
to a real right upon registration.
When
a court order provides a time limit within which to do something, I
am of the view that, such time limits ought to be followed. Failure
to comply with such time limits lead to lapsing of the rights
conferred therein.
The
law helps those who are awake and not the sluggard; “lex
subvernit vigilantibus nom dormientibus”.
The
claimant sought to claim ownership of immovable property based on an
order of this court, which order she has not complied with.
If
such application was made within the 6 months provided for in the
court order, I was going to be persuaded that the claimants have
discharged the onus on them of proving ownership of the attached
immovable property.
I
am of the view that without registration in title claimants cannot
succeed in proving that they own the said property. Such onus of
proving ownership rested with the claimants: See Bruce
N O v Josiah Parkes & Sons (Rhodesia) Ltd & Anor
1972
(1) 68 (R).
It
is trite that a claimant must show proof of ownership in order to
succeed in interpleader proceedings. The claimants have failed to
discharge such onus.
In
the result I order as follows:
1.
The claimants claim to Stand 13594 Salisbury Township of Salisbury
Township lands measuring 1543 square metres in extent and held under
Deed of Transfer Number 503/2002 dated 6 February 2002 also known as
number 28 MacGowan Road, Belvedere, Harare placed under attachment in
execution of judgment HC2110/12 is hereby dismissed.
2.
Stand 13594 Salisbury Township of Salisbury Township lands measuring
1543 square metres in extent and held under Deed of Transfer Number
503/2002 also known as Number 28 MacGowen Road, Belvedere, Harare as
set out in the Notice of Attachment of immovable property dated 19
November 2014 issued by the applicant is declared executable.
3.
The claimant to pay the costs of the Judgment Creditor and the
applicant.
Kantor
and Immerman,
Applicant's legal practitioners
Machekeche
and Partners,
Claimants legal practitioners
Danziger
and Partners,
Judgment Creditor's legal practitioners
