CHAUKE v ESTRELAC INVESTMENTS (PVT) LTD & ORS
HIGH COURT, HARARE
[Opposed Application HH 335-17]
May 16 and 31, 2017
The applicant entered into an agreement of sale for an immovable property with the first respondent. The applicant paid the purchase price, capital gains tax in respect of the property and took delivery of transfer papers from the first respondent. Before transfer was effected, the second respondent obtained a default judgment against the first respondent and placed a caveat on the property which was the subject of the sale agreement between the applicant and the first respondent. The applicant sought an order transferring the property into his name and an upliftment of the caveat.
Held, that a judgment creditor is entitled to attach and have sold in execution the property of his debtor. This is notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right may have arisen prior to the attachment.
Deputy Sheriff-Harare v Moyo & Anor HH 640-15 (unreported), referred to
Harris v Trustee of Buissinne (1840) 2 Menz 105, referred to
Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H), referred to
Moyo v Fraser NO & Anor 2006 (1) ZLR 257 (S), referred to
Moyo v Muwandi SC 47-03 (unreported), referred to
Takafuma v Takafuma 1994 (2) ZLR 103 (H), referred to
Cilliers AC, Loots C and Nel HC Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa (4th edn, Juta & Co Ltd, Cape Town, 1997)
H Tererai, for the applicant
C Pasipamire, for the second respondent
No appearance for the first respondent
This is an application for the transfer of a stand from the first respondent to the applicant and for the second respondent to be ordered to uplift the caveat it had placed on the said property.
The applicant being a minor, his founding affidavit was deposed to by Mahlomulo Chauke, in his capacity as father and natural guardian of the applicant. It is averred that on 25 March 2014, the applicant entered into an agreement of sale with the first respondent for the sale of stand. The applicant was purchasing the property from the first respondent. The purchase price was US$ 26 000 which was paid in cash upon the signing of the agreement of sale. The first respondent surrendered to the applicant’s legal practitioners the original deed of transfer and the endorsed deed of grant together with a power of attorney to pass transfer. On 26 March 2014, the applicant’s conveyancers tried to pay the capital gains tax to Zimbabwe Revenue Authority (“ZIMRA”) in the sum of US$ 1 300 but ZIMRA demanded US$ 2 100. Thereafter several correspondences and appeals were made to ZIMRA in a bid to have the tax reduced, but they were not fruitful. The applicant ended up paying the tax as demanded by ZIMRA on 12 June 2015. After payment of the capital gains tax and having had the rates cleared, the applicant’s legal practitioners sought to transfer the property to the applicant only to find a caveat having been placed on the property by the second respondent. This was pursuant to a judgment the second respondent had obtained against the first respondent on 26 March 2014. The applicant’s legal practitioners wrote to the legal practitioners of the second respondent and to the third respondent to have the caveat lifted, to no avail. It is further averred that since the applicant bought the property before issuance of the writ of execution and before the time of attachment, the applicant was already entitled to the property.
Despite being served with the court application, the first respondent did not file any papers in response. However, the second respondent opposed the application.
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