The High Court has dismissed a claim by Collins Mushunje to block the attachment of a Strathaven property, ruling that he failed to prove ownership or special circumstances justifying protection against judgment creditors.
Justice Samuel Deme dismissed Mushunje’s claim in interpleader proceedings brought by the Sheriff of Zimbabwe following the attachment of an undivided 5.4273% share in Stand 1020 Strathaven Township. The property had been attached to satisfy a judgment obtained by the Triangle Pension Fund – The Money Plan and the Hippo Valley Estates Pension Fund.
The judgment creditors had earlier obtained judgment against Tinashe Nhete, Classique Project Management (Private) Limited and N-Frasys (Private) Limited under case number HCH5449/23, and subsequently instructed the Sheriff to execute against the property.
Mushunje opposed the attachment, alleging that he had purchased the property from Classique Project Management in May 2020, paid the full purchase price in instalments, carried out renovations worth US$100,000, and taken occupation of the property in December 2021. He relied on an agreement of sale, powers of attorney, proof of electricity purchases and documents purporting to show payment of transfer costs.
However, the court held that ownership of immovable property in Zimbabwe is only established through registration at the Deeds Registry, as provided for under the Deeds Registries Act.
Justice Deme noted that Mushunje was not the registered owner and therefore bore the onus of proving “special circumstances” explaining why transfer had not taken place.
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In rejecting the claim, the court found that the Sheriff’s return of service indicated that the property was vacant at the time of attachment, undermining Mushunje’s reliance on occupation as a basis for protection.
The judge further ruled that the alleged renovations were not adequately proved, noting that many of the receipts produced related to household goods rather than building materials, while photographs attached to the pleadings did not establish improvements at the relevant time.
The court was also critical of the alleged payment of transfer costs, finding the proof unreliable and generated only after the writ of execution had been issued. Justice Deme questioned why the claimant would allegedly spend substantial sums on renovations while failing to prioritise relatively modest transfer fees.
Justice Deme concluded that the remaining documents relied upon, including the agreement of sale and powers of attorney, did not amount to special circumstances capable of defeating the rights of judgment creditors.
The court further held that proof of electricity purchases did not establish ownership and that Mushunje had failed to show any legal impediment preventing transfer of the property.
In strong terms, the judge described the alleged sale as “a perfect example of a simulated transaction,” finding that it could not be enforced against third parties.
The claim was dismissed with costs on the ordinary scale, leaving the attachment in place.
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