Opposed
Application
MAKONESE
J:
The
applicant purchased the immovable property known as stand 4022
Khumalo Township of stand 4125 Bulawayo (commonly referred to as 36
Ellington Avenue, Khumalo, Bulawayo) at a public auction conducted by
second respondent on 19 July 2013.
The
property is registered in the name of Raphael Masuku (first
respondent's husband).
The
sale was confirmed by the second respondent on 17 October 2013.
The
applicant complied with all the terms and conditions of the sale and
duly paid the purchase price.
The
transfer of the property cannot, however, be effected into the names
of applicant as first respondent obtained a Provisional order against
her husband, Raphael Masuku, on 20 September 2000 under case number
HC3089/2000. The interim order provides in paragraph 4 that pending
an order of this court, third respondent be and is hereby interdicted
from transferring the property to a third party.
A
caveat was registered against the title deed of the property in terms
of that interim order.
The
applicant has filed this application seeking an order for the
discharge of paragraph 4 of the provisional order under case number
3089/2000 and for the upliftment of caveat number 808/2000 registered
in pursuance of the interim order.
This
is to enable third respondent to effect transfer of the property from
Raphael Masuku into the applicant's names.
In
essence, the relief being sought by applicant is to give effect to
the judicial sale which has been stalled by the terms of the interim
order granted by this court on 20 September 2000.
First
respondent has opposed the relief sought by applicant primarily on
the grounds that the judgment/order under case number HC1938/12 which
led to the attachment and subsequent sale of the property in dispute
is being challenged in court by her husband Raphael Masuku.
In
that matter Raphael Masuku has filed an application for condonation
for leave to apply for rescission of judgment under case number
HC1938/12 which led to the attachment and auctioning of the property
by second respondent.
Point
in
Limine
The
applicant raised a point in
limine
arguing that the first respondent was barred by reason of failure to
file heads of argument in terms of Order 32 Rule 238(2a) of the High
Court Rules, 1971.
First
respondent contended, correctly, in my view that, regard being had to
Rule 238(2a)(ii), first respondent filed the heads of argument within
the time limits as set out the rules.
I
accordingly find no merit in the point in
limine
and accordingly dismiss it.
I
shall proceeded to deal with the merits of the application.
Background
First
respondent is married to Raphael Masuku and there is a divorce action
which is pending under case number 3089/2000. On 20 September 2000,
first respondent obtained against her husband interim relief
interdicting the sale of the property in dispute to a third party,
pending an order of this court. First respondent duly registered a
caveat against the title deed bearing number 808/2000.
The
divorce action instituted some 15 years ago has not been finalized.
No proper explanation for the delay in finalization of this matter
has not been proferred by first respondent.
Sometime
in May 2012, Raphael Masuku was served with summons under case number
HC1645/12.
At
that time Raphael Masuku was at Khami Prison on charges of theft of
motor vehicle.
The
plaintiff in that matter obtained judgment and subsequently this led
to the sale of the property known as 36 Ellington Road, Khumalo,
Bulawayo, in satisfaction of the judgment debt.
Under
case number 1398/12 Raphael Masuku has attempted to seek a rescission
of judgment.
Once
again, as in the divorce matter, there seems to be no urgency in
having that matter brought to finality. No sensible and plausible
explanation has been advanced to explain the failure to have the
application for condonation, and for rescission of judgment resolved.
First
Respondent and her husband seem content with maintaining the status
quo.
It
suits the first respondent to cling to the caveat registered in the
year 2000. This is so because the property cannot be transferred to
the applicant for as long as the caveat is not uplifted. As things
stand, the first respondent is not proceeding with the divorce action
and Raphael Masuku is not pursuing the application to rescind the
default judgment that led to the sale of the immovable property.
Established
Facts
It
is not in dispute that the applicant purchased the property through a
public auction conducted by second respondent. The applicant complied
with all the terms and conditions of the sale and paid the full
purchase price for the property.
The
applicant is essentially an innocent purchaser.
It
is further not in dispute that the property is registered in the
names of Raphael Masuku, who is the registered owner of the real
rights over the property.
First
respondent's opposition to the upliftment of the caveat is premised
on the fact that the judgment which led to the property being
auctioned is being challenged in court.
That
judgment which led to the sale in execution is still operative and
has not been set aside by a competent court.
It
is beyond dispute that the immovable property was placed under
attachment and sold to applicant in terms of a valid court order.
I
have already indicated that both first respondent and Raphael Masuku
have shown no interest in bringing to finality, firstly the divorce
matter and secondly, the application for rescission of judgment.
I
also note that there is nothing in the papers to suggest that there
was an attempt to challenge the confirmation of the sale.
First
respondent has taken no action at all to obtain an order setting
aside the sale in execution.
There
is therefore no basis to oppose the upliftment of the caveat
registered in the year 2000, simply on the grounds that Raphael
Masuku has not finalized his application for rescission of judgment.
As
matters stand, first respondent has remained in the property in
dispute from 17 October 2013. The first respondent and her husband
enjoy the use of the property, rent free.
Analysis
of the Law
The
onus is on the applicant to satisfy the court that there are special
circumstances why an order uplifting the caveat should be granted.
See the case of Maphosa
and Another
v Cook
and Others
1997 (2) ZLR 314 (H).
In
this matter the learned judge goes further to state at page 317 as
follows:
“It
is clear from the authorities that in the exercise of its discretion
the court will consider the fact that the attached property had been
sold to the applicant but that the applicant must show, in addition
to that factor, the existence of facts or circumstances which satisfy
it that it would be just or equitable to grant the relief sought.”
In
the case of Bulle
v Merchant
Bank of Central African and Others
HH2/96 it was held that a caveat recorded against a title deed does
not confer on the judgment creditor real rights.
In
the same vein in this instance the caveat placed against the title
deed does not confer any real right on first respondent.
In
her heads of argument, first respondent makes the following averments
in paragraph 2.2:
“The
first respondent stands to be prejudiced if the caveat is lifted
since the said property forms part of the matrimonial property upon
which a divorce matter is still pending under case number 3889/2000.
This property cannot then be disposed of at the detriment of the
first respondent who also happens to be an interested party. Lifting
the caveat will be contrary to public policy since first respondent's
husband's indebtedness cannot prejudice her interest in the
property.”
I
hold the view that first respondent only holds personal rights
against the registered owner of the real rights, Raphael Masuku.
First
respondent's opposition to the upliftment of the caveat on the
grounds that it would be against public policy lacks merit as she may
claim damages against the registered owner of the property, Raphael
Masuku.
In
the instant case what first respondent is in effect protecting is her
50% claim of the proceeds of the sale of the property upon the
granting of a divorce.
That
divorce, sadly has not been resolved for 15 years and there seems to
be no interest on the part of first respondent or her husband to
bring the matter to a final conclusion because the issue of the
caveat will then simply fall away.
The
issue of the caveat is being used in my view, as a shield against the
enforcement of applicant's rights arising from the sale of the
property.
The
position was aptly stated by HERBSTEIN AND VAN WINSEN in Civil
Practice and Procedure of the Superior Courts in South Africa,
3rd
Ed
at page 596 where it is stated as follows:
“---
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 right arose prior to the attachment or even
the judgment creditor had notice when the attachment was made. An
attachment in execution acts as a judicial mortgage or pignus
judiciali.”
I
make the further observation that the caveat which has been in place
for close to 15 years now has been overtaken by events.
Since
the caveat was placed on or about the time of institution of divorce
proceedings, its real purpose was to prevent a sale which her husband
could conclude with a third party without her knowledge, thus
prejudicing her personal rights in and to the property.
The
property has since been sold in terms of a sale in execution and
first respondent can enforce her personal rights for her fair share
of the proceeds of the sale against her husband.
First
respondent's opposition to the removal of the caveat lacks
substantive and well-grounded basis at law.
In
the result, I am satisfied that the applicant has made out a good
case justifying the upliftment of the caveat.
In
the exercise of my discretion, in applications of this nature the
applicant is entitled to the relief sought.
I,
accordingly make the following order:
1.
Paragraph 4 of the Provisional Order granted under case number
HC3089/2000 be and is hereby discharged and caveat number 808/2000
registered over stand 4022 Khumalo Township of stand 4125 Bulawayo
under Deed of Transfer number 3137/2000, more commonly known as
number 36 Ellington Road, Khumalo, Bulawayo be and is hereby set
aside.
2.
Third respondent be and is hereby authorized and directed to uplift
the aforesaid caveat and allow transfer of the said property from
Raphael Masuku into the names of the applicant.
3.
Second respondent be and is hereby authorized to sign any relevant
documents to enable transfer on behalf of the said Raphael Masuku.
4.
First respondent shall bear the costs of this application.
Messrs
T. J. Mabhikwa and Partners,
applicant's legal practitioners
T.
Hara and Partners,
1st
respondent's legal practitioners
