Final Orders re: Writ of Execution, Enforcement of Judgments iro Approach, Execution Powers and Superannuated Orders

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

Passing of Ownership, Proof of Title re: Movable Property & Principle that Possession Raises a Presumption of Ownership

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Approach

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

Division of Assets of the Spouses re: Antenuptial Contracts

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable....,.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”...,.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

Division of Assets of the Spouses re: Approach, Clean Break Principle & Maintenance of the Status Quo Stante Matrimonii

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable....,.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”...,.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

Founding Affidavits re: Approach and the Rule that a Case Stands or Falls on Founding Affidavit

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

Practicing Certificates and Right of Audience before Courts re: Self Actors and the Presumption of Knowledge of the Law

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

Final Orders re: Approach iro Equity Relief, Public Interest Litigation and the Interests of Justice

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

Division of Assets of the Spouses re: Prejudicial Disposal, Alienation or Concealment of Assets & Marital Property Regime

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable....,.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”...,.

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

Judicial Declaratory Order or Declaratur re: Interpleader Proceedings iro Judicial Attachment

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Debt re: Joint and Several Liability

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Approach re: Marriage Categories and the Effect of Classification of Marriages

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Judicial Eviction, Attachment and Order re: Approach and Alienation or Disposal of Property Under Judicial Attachment

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Division of Assets of the Spouses re: Monetary Debts, Doctrine of Providing Neccessaries to Spouse & the Duty of Support

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Constitutional Rights re: Marriage Rights, Gender Equality, Parental or Guardianship Rights & Institution of the Family

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Constitutionality of Statutory Provisions re: Marriage Laws

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In terms of section 2(1) of the Married Persons Property Act [Chapter 5:07], parties who marry in Zimbabwe are married out of community of property. The only exception is that parties can agree to be married in community of property by signing an antenuptial contract before their marriage is solemnized.

Thus, in Venencia Chiminya v Late Denis Mhirimo Chiminya & Ors HH272-15, MWAYERA J, held, obiter, that:

“It is appreciated that marriage regimes in Zimbabwe, in the absence of ante nuptial contract, are out of community of property.”

It follows, that, property that parties acquire during the subsistence of marriage is owned by the person who has title over that property - be it movable or immovable.

It also follows, that, when people are married out of community of property, the spouses are not, at any given point, liable for the other's debts - unless they jointly acquire that debt.

H.R. HAHLO in The South African Law of Husband and Wife, 5th ed…, had this to say on marriages out of community of property:

“The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property, without her consent, she may recover it from the third party with rei vindicatio. (This, of course, is subject to the general limitations on the jus vindicandi, for example, money and negotiable instruments cannot be followed up, and, if the wife stands by while her husband alienates or hypothecates her property, she may be estopped from reivindicating it).

In addition, the spouse whose property was improperly alienated, hypothecated, or otherwise disposed of has a personal action for damages against the other.”

The position of the law, with regards to marriages out of community of property, confirms that the attached property in question belongs to the Claimant.

Section 26 of the Constitution provides the following:

“26 Marriage

The State must take appropriate measures to ensure that -

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution.”

I was hoping to get guidance from the Constitution on the issue.

All that the Constitution does is to place an obligation on the State to ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution. This entails the State aligning the Constitution to the current Marriage Laws.

Until that is done, the law remains as put forward by the claimant.

From the above analysis, it is clear that the property attached should not have been attached as it belongs to the Claimant and cannot be used to settle debts of the Judgment Debtor since the Claimant was not involved in the legal dispute leading to the issuance of writ upon which execution was carried out.

The fact that she is married to the Judgment Debtor does not make her liable since they are married out of community of property.

At law, the Claimant has also managed to prove, on a balance of probabilities, that, she is the owner of the attached property.

The Claimant's property should therefore be released.

I will therefore make the following order:

1. The Claimant's claim is granted.

2. The Judgment Creditor pays the Claimant's costs.

Law Portal
Zimbabwe

HH272-17 - THE SHERIFF FOR ZIMBABWE vs ELINA CHIKWAVA and ASPINAS MUKARATI and NHAMO CHIKWAWA

Final Orders re: Writ of Execution, Enforcement of Judgments iro Approach, Execution Powers and Superannuated Orders

Passing of Ownership, Proof of Title re: Movable Property & Principle that Possession Raises a Presumption of Ownership

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Approach

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

Division of Assets of the Spouses re: Antenuptial Contracts

Division of Assets of the Spouses re: Approach, Clean Break Principle & Maintenance of the Status Quo Stante Matrimonii

Founding Affidavits re: Approach and the Rule that a Case Stands or Falls on Founding Affidavit

Practicing Certificates and Right of Audience before Courts re: Self Actors and the Presumption of Knowledge of the Law

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

Final Orders re: Approach iro Equity Relief, Public Interest Litigation and the Interests of Justice

Division of Assets of the Spouses re: Prejudicial Disposal, Alienation or Concealment of Assets & Marital Property Regime

Judicial Declaratory Order or Declaratur re: Interpleader Proceedings iro Judicial Attachment

Debt re: Joint and Several Liability

Approach re: Marriage Categories and the Effect of Classification of Marriages

Judicial Eviction, Attachment and Order re: Approach and Alienation or Disposal of Property Under Judicial Attachment

Division of Assets of the Spouses re: Monetary Debts, Doctrine of Providing Neccessaries to Spouse & the Duty of Support

Constitutional Rights re: Marriage Rights, Gender Equality, Parental or Guardianship Rights & Institution of the Family

Constitutionality of Statutory Provisions re: Marriage Laws

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HH272-17 - THE SHERIFF FOR ZIMBABWE vs ELINA CHIKWAVA and ASPINAS MUKARATI and NHAMO CHIKWAWA

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