THE SHERIFF OF ZIMBABWE v MUSHUNJE & OTHERS (82 of 2026) [2026] ZWHHC 43 (29 January 2026)

5 HH 82-26 HCH 5536/25 **EX TEMPORE** THE SHERIFF OF ZIMBABWE versus COLLINS MUSHUNJE and THE TRIANGLE PENSION FUND-THE MONEY PLAN and HIPPO VALLEY ESTATES PENSION FUND HIGH COURT OF ZIMBABWE **DEME J** HARARE, 27 and 29 January 2026. **Interpleader Proceedings** _E Jojo,_ for the Applicant _M Muzaza,_ for the Claimant _F Mahere,_ for the 1st and 2nd Judgement Creditors DEME J: The Applicant approached this court seeking relief for interpleader in terms of Rule 63. On 27 January 2026, I dismissed the Claimant’s claim to the immovable property being an undivided 5.4273% share, being share number 6 in Stand 1020 Strathaven Township of Stand 219 Strathaven Township measuring 1,3615 hectares under certificate of registered title number 2200/2020 (hereinafter called “the property”). I will now proceed to supply the reasons for my decision. The Judgment Creditors obtained judgment against Tinashe Nhete, Classique Project Management (Pvt) Ltd, and N-Frasys (Pvt) Ltd in case number HCH5449/23. Pursuant to the judgment, the Judgment Creditors instructed the Applicant to attach the property. The Claimant laid claim to the property. He alleged that he purchased the property from the 2nd judgment debtor, being Clasique Project Management (Pvt) Ltd, on 29 May 2020. It is alleged that the seller signed the power of attorney and declaration by the seller on 29 May 2020. It is further alleged that the Claimant paid the full purchase price through four instalments plus a deposit. The Claimant attached to the pleadings the agreement of sale, power of attorney, and declaration by the seller. The Claimant further alleged that he renovated the property. According to the Claimant, he spent the sum of US$100 000.00 on renovations. He attached the alleged proof of the improvements. The Claimant further alleged that he managed to raise part of the transfer costs on 23 June 2025, having failed to do so earlier due to funding challenges. The Claimant claimed that he moved into the property in December 2021 upon the alleged completion of the renovations. It is the affirmation of the Claimant that he has proof from ZESA substantiating that he is the owner of the property. Proof for the purchased electricity was attached to the pleadings. The Claimant also averred that he offered to pay Value Added Tax on behalf of the seller on condition that the seller would refund such amount. According to the Claimant, this call drew no response from the 2nd judgment debtor. The matter was opposed by the Judgment Creditors. Mr. _Mahere_ , on behalf of the Judgment Creditors, submitted that the writ of execution suggests that the property was vacant at the time of attachment. Responding to this, Mr. _Muzaza_ argued that it is not clear which property was vacant at the material time since there are three properties identified on the writ of execution. The Judgment Creditors also submitted that the Claimant failed to have the property transferred into his name for a long time without an explanation. Mr. Mahere argued that the Claimant only enjoys personal rights which cannot be enforced against third parties. He also contended that he must seek relief against the 2nd judgment debtor instead The Judgment Creditors averred that the alleged improvements have not been substantiated. They affirmed that the pictures attached to the pleadings do not prove that the Claimant effected improvements at the property. They also claimed that the improvements only give rise to personal rights. The question which immediately arises for determination is whether the Claimant has, on a balance of probability, managed to establish special circumstances warranting the relief sought. It is clear that ownership is established through registration through the office of Deeds Registry. Reference is made to Section 14 of the Deeds Registries Act [_Chapter 20:14_], which provides that: “Subject to this Act and any other law— 1. The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar; 2. Other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar: Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.” A Claimant who is not a registered owner ought to prove special circumstances justifying why transfer could not occur. Reference is made to the case of _CBZ Bank Ltd_ v _Moyo_ 1 where the Supreme Court held that: “Special circumstances exist where a purchaser has failed to have the property registered in his name, when he and the seller have demonstrated a clear intention to effect transfer and when there was no legal impediment to such transfer or the impediment does not justify the refusal to grant protection to the purchaser. The first respondent purchased and paid the full purchase price for the property in August 2010. It is common cause that the first respondent acted promptly to secure registration of title by paying the transfer fees and obtaining tax and rates clearance certificates. It is further common cause that the first respondent, in terms of the contract of sale was entitled to take vacant possession 3 months after the date of payment of the purchase price, that is, from November 2010. When the appellant served summons against Nompiliso Maposa, the first respondent was already residing at the property in question, where service of the summons was effected. The transfer could not be registered because Lizhibowa Real Estate (Pvt) Ltd, a creditor of one of the sellers, had registered a caveat on the title deeds of the property. The caveat was registered after the first respondent was already in possession of the property and a day before the first respondent’s transfer papers were filed in the Deeds Registry. The first respondent had done all that a purchaser is required to do to get transfer.” It is apparent that the Sheriff, in the writ, alleged that the property was vacant. This was disputed by Mr. _Muzaza_. He argued that it is not clear which property was vacant at the material time. In my view the allegation by the Sheriff that: “The premises are vacant and they are going through renovations no movable goods were located” Must apply to all goods specified on the writ. I have no reason to doubt the remarks by the Sheriff who is an officer of this court. She has no reason to lie against the Claimant in this matter. For this reason, the basis for special circumstances arising from occupation must automatically fall away. I will now turn on to the alleged improvements. It is apparent that the material specified from pages 123-138 is not exclusively material that can be used for improvements. Most of the items specified in the purported receipts and delivery notes are household goods, which have nothing to do with the improvements. For this reason, improvements allegedly effected at the disputed property must cease to be the basis for special circumstances. The Claimant failed to prove the purported improvements at the property by attaching proof of purchase of household goods which is irrelevant at this stage. The attached pictures do not take the Claimant’s case any further. Pictorial evidence attached to the pleadings does not help to prove improvements at the material time. Turning to the purported payment of transfer costs, it is apparent that the Claimant’s legal practitioners are the alleged conveyancers of the property. The purported proof was generated by Wintertons. In my view, such proof is not credible having been generated by the legal practitioners who appear to be conflicted. Further, the alleged proof was only generated after issuance of the writ of execution. The writ was issued on 17 December 2024 while the supposed proof was produced on 23 June 2025, six months after the writ was issued. This puts the credibility of such evidence into dispute. Common sense and logic demand that a purchaser of the property may prioritise securing of the purchased property through payment of necessary transfer fees. One wonders why the Claimant chose to spend about US$100 000 on improvements at the expense of payment of transfer costs. Transfer fees constitute an insignificant portion of the amount allegedly spent on improvements. Although everyone is entitled to his or her priorities, these priorities are too misplaced to be real. For these reasons, I am unable to accept the alleged payment of transfer costs as proof. On this basis, this alleged proof must not constitute special circumstances. This leaves the Claimant’s case standing on nothing after the disregard of the Claimant’s evidence highlighted. The rest of the documents, like agreement of sale, declarations by seller and purchaser, power of attorney, offer to pay Value Added Tax and purported proof of payment, cannot be able to be construed as special circumstances, in my view. These remaining documents can be authored by an individual at any time from any space of the earth in order to deceive the court. The proof for the purchase of electricity, attached to the pleadings by the Claimant, cannot be used to prove ownership of the property. I do agree with Mr. Mahere’s submissions in this connection. It can only prove that the Claimant consumed electricity at the material time at the property. What is apparent is that at the time of the property attachment, the property was vacant. For whatever reason, the Claimant was no longer in occupation of the property. Further, the Claimant did not plead any legal impediment which prevented the parties from effecting transfer which is in line with the decision of _CBZ Bank Ltd_ v _Moyo_ _supra_. I am unable to detect a clear intention by the parties to have the property transferred in accordance with the judgment of _CBZ Bank Ltd_ v _Moyo_ _supra_. The Claimant does not deserve protection under such circumstances. It is my considered view that the alleged sale between the Claimant and the 2nd judgment debtor is a perfect example of a simulated transaction which must be dismissed as a non-event. For these reasons, I saw it necessary that the claim be dismissed with costs. Costs on an ordinary scale are reasonably sufficient, in my view. **Deme****J:………………………………..** _Dube-Banda, Nzarayapenga &Partners_, Applicant’s Legal Practitioners. _Wintertons, for the claimant,_ Claimant’s Legal Practitioners. _Gill, Godlonton & Gerrans,_ first and second Judgement Creditors’ Legal Practitioners. 1 SC17/18.