THE SHERIFF OF ZIMBABWE v CHIDEDE and Others (145 of 2025) [2025] ZWHHC 145 (7 March 2025)

4 HH 145-25 Case No HC 1536/24 Ref Case No 2039/21 THE SHERIFF OF ZIMBABWE versus MARGARET CHIDEDE and SOFIA CHIDEDE and IMMACULATA CHIDEDE and DINAH GUKUTA and CHARITY BOKA HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 23 July 2024 & 25 October 2024 & 7 March 2025 Opposed application-Interpleader M Mabhikwa, for the applicant RR Mutindindi, for the claimant DC Kufarunwenga, for the judgment creditor MUSITHU J: This interpleader application was filed pursuant to rule 63 of the High Court Rules, 2021 (the rules). The Sheriff of Zimbabwe is the applicant herein. Margarete Chidede, Sophia Chidede and Immaculata Chidede are all claimants. Dinah Gukuta and Charity Boka are the judgment creditor and the judgment debtor respectively. On 13 June 2023, under HC 2039/23, the judgment creditor obtained a default judgment against the judgment debtor in the sum of US$42, 000.00 or its equivalent in Zimbabwean dollars, together with interest at the rate of 10% per month calculated from the date of summons to date of full payment. Also awarded in the same order was collection commission calculated in terms of the Law Society By Laws and an order that the rights held by the judgment debtor in certain immovable property being Stand 22871 Ruwa Township of Sebastel (the immovable property) held under Deed of Transfer No. 4138/28 be declared executable. Also awarded against the judgment debtor was an order of costs on the attorney and client scale. Pursuant to the said order, the judgment creditor instructed the applicant to attach and take into execution the judgment debtor’s immovable property. The claimants also lay claim to the same property. The Claimants’ Claim The claimants claim to the immovable property is based on an agreement of sale they signed with an entity called Charible Enterprises (Pvt) Ltd (hereafter referred to as Charible Enterprises or the seller). Charible Enterprises was being represented by the judgment debtor. In terms of the agreement of sale signed on 24 July 2020, the claimants purchased the property from the seller for US$60, 000.00. An initial deposit of US$20, 000.00 was to be paid within seven days of the signing of the agreement directly to the seller. The balance of US$40, 000.00 was to be paid in 10 equal instalments of US$4, 000.00 per month from 20 August 2020 until 20 May 2020. Various acknowledgments of receipt signed by the judgment debtor and witnessed by Guest and Tanner Real Estate (the agent), showed that on 24 July 2020, the claimants paid the deposit of US$20, 000.00 to the judgment debtor. Thereafter, and between 20 August 2020 and 26 February 2021, the claimants paid varying amounts which added up to the sum of US$60, 002.00 inclusive of the said deposit of US$20, 000.00. Also attached to the claimants’ affidavit is a mandate to sale the property given to the agent, a company resolution by the seller authorising the sale, and the offer to purchase the property signed on behalf of the seller and the purchasers (the claimants). On 1 June 2021, the claimants paid a cession fee of US$500.00 to the developer Damofalls Investments to facilitate the cession of the property into their names. A utility bill from the Ruwa Local Board showed that the property was registered in the name of the seller. On 12 March 2024, the claimants were served with a writ of execution against movable property, a notice of attachment of immovable property, the notice to occupier and the High Court order. The claimants averred that they were not the judgment debtor and had been in occupation of the property since August 2021, upon paying the full purchase price. The claimants also averred that they did not owe the judgment creditor anything and for that reason, the immovable property ought not to be attached to satisfy a judgment debt that the claimants were not aware of. When the claimants discovered that the property had been attached despite their payment of the full purchase price, they lodged a police report with the Zimbabwe Republic Police, Ruwa. The claimants further contended that if the sale of the property was allowed to proceed, they would suffer irreparable harm, after having made substantial improvements since taking occupation. Further, they considered it their family home together with their families, and the sale and the consequent eviction would expose them to undue hardships. They prayed that the property be declared non-executable and released from attachment. The Judgment Creditor’s Case According to the judgment creditor, she lent and advanced to the judgment debtor the sum of US$30, 000.00 in terms of a Restructure Loan Agreement (the loan agreement) dated 30 November 2020. The loan agreement was signed by Job Mukoki on behalf of the judgment creditor and the judgment debtor. As security for the debt, the judgment debtor surrendered her rights in the property held under Deed of Transfer Number 4138/20 and registered in the name of Charible Enterprises. The judgment creditor proceeded to register a mortgage bond Number 2294/20 on the immovable property to secure the debt. The judgment debtor defaulted on her obligations and the judgment creditor obtained judgment against the judgment debtor, in terms of which the immovable property was declared executable. The judgment creditor avers that the agreement of sale that the claimants relied upon to assert their claim only created personal rights against the judgment debtor. These personal rights ranked second to the rights of the judgment creditor, which were secured by the mortgage bond. The judgment creditor’s superior rights entitled her to execute against the immovable property even in the face of the claimants’ personal rights which were not registered with the Registrar of Deeds as required by s 14 of the Deeds Registries Act [Chapter 20:05] (the Act). The claimants could not therefore assert rights of ownership in an immovable property that was not registered in their names. The Submissions Mr Mabhikwa submitted that the applicant had no direct interest in the matter save for the issue of costs. In their heads of argument, the claimants submitted that there was no valid opposition on behalf of the judgment creditor because the opposing affidavit was deposed to by a person who had no legal capacity to do so. The judgment creditor’s opposing affidavit was deposed to by one Victoria Kambare in her capacity as a Legal Secretary in the employ of the judgment creditor’s legal practitioners Kufaruwenga, Kajevu & Zihanzu. It was further submitted that it was not clear on what basis a mere legal secretary would handle a client’s files and prepare legal documents on behalf of the client, when it was the responsibility of the legal practitioner to do so. Several authorities were cited in support of the contention that a legal secretary could not depose to an affidavit on behalf of a client since it was the prerogative of the legal practitioner to represent the client and not a legal secretary. Concerning the merits of the claim, Ms Mutindindi for the claimants submitted that there existed special circumstances that warranted the protection of the claimants. The claimants had taken occupation of the immovable property after paying the full purchase price. They only became aware that the immovable property was owned under a registered title deed when they were served with the judgment creditor’s notice of opposition. Counsel further submitted that the claimants had since filed an application for the cancellation of the title deed in HC 1895/24. In his response to the preliminary point, Mr Kufaruwenga for the judgment creditor submitted that the sole qualification for deposing to a founding affidavit or opposing affidavit was the ability to swear positively to the averments made therein. One did not need to be a party to those proceedings. Citing r 58(4) of the rules, counsel further submitted that a founding affidavit or an opposing affidavit need not be deposed to by the litigant himself in person. Someone else who knew the facts could do so in their place and stead. Reference was also made to supportive authority bearing on the point that a deponent was akin to a witness. A witness needed no authority to swear or testify in a civil trial. As regards the merits of the matter, it was submitted that the claimants bore the onus to prove rights of ownership. In terms of s 14 of the Act, ownership in immovable property was conferred through registration of title. Without registration of title, one could not claim to own an immovable property. In casu, the property was registered in the name of Charible Enterprises. The claimants had not taken transfer of the property at the time of execution. For that reason, they had failed to discharge the onus to prove ownership of the property. It was further submitted that even if the claimants were successful, they could not claim transfer of the property until the mortgage bond was cancelled. Events following the reservation of judgment Before I relate to the parties’ submissions and the merits of the dispute, I need to digress and explain the circumstances that led to the delay in the handing down of judgment. On 23 July 2024, I heard arguments from the parties and reserved judgment. As I was preparing this judgment it emerged from the submissions made by the claimants’ counsel that the claimants had instituted separate proceedings in which they sought the cancellation of a title deed passed in favour of Charible Enterprises, in connection with the property. Those proceedings were filed in HC 1895/24 and were pending before this court at the time this matter was argued before me. It became clear to me that the proceedings pending in HC 1895/24 had a bearing on the matter before me. This is because if the claimants succeeded in having the title deed registered in favour of Charible Enterprises cancelled, then it meant that the mortgage bond registered in favour of the judgment creditor became ineffectual and of no consequence. The judgment creditor would not competently seek to foreclose on a property that the judgment debtor could not have legally bequeathed as security for a debt owed to the judgment creditor. The claimants’ interpleader claim would have been unassailable. The proceedings in HC 1895/24 therefore needed to be disposed of first. On 25 October 2024, I invited the parties counsel to chambers for a case management to discuss this conundrum. It was agreed at the case management meeting that HC 1895/24, needed to be disposed of first before judgment was handed down in the present matter. Counsel further agreed that they would jointly approach the registrar and request that the matter in HC 1895/24 be heard on an urgent basis. Counsel also agreed that they would, through the registrar’s office, keep me abreast of developments in HC 1895/24 Regrettably, the parties counsel did not match up to their undertaking to advise my office of further developments in the matter. It was only on 5 March 2025, after further enquiries on the matter that I was informed by the Registrar that the claimants’ application in HC 1895/24 was dismissed by MUNANGATI MANONGWA J on 27 February 2025. The dismissal of that application paved the way for the handing down of judgment in this matter. The analysis of the preliminary point and the merits Validity of the judgment creditor’s notice of opposition The validity of the judgment creditor’s notice of opposition and the opposing affidavit that accompanies it must be considered in the context of r 58(4) of the High Court rules. The provision states as follows: “4) An affidavit filed with a written application— (a) shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein; and (b) may be accompanied by documents verifying the facts or averments set out in the affidavit and any reference in this Part to an affidavit shall be construed as including such documents.” My interpretation of the above provision is that apart from the parties to the litigation themselves, any other person who can swear to the facts or averments in the affidavit can depose to an affidavit. In her heads of argument, counsel for the claimants cited the case of Minister of Defence, Security & War Veterans Affairs (N.O.)1, where MUREMBA J made the following insightful remarks: “An affidavit is a sworn statement that takes the place of oral evidence. The person who deposes to an affidavit asserts that the information they have given is true and they have personal knowledge of it. The person will also be saying that they are competent to testify if called into court about the information provided in the affidavit.” In Dhliwayo v Warman Zimbabwe (Pvt) Ltd & 2 Ors2, DUBE-BANDA J highlighted the need to distinguish between the authority to institute or defend proceedings and the competence of a witness to depose to an affidavit on behalf of a witness. A person who deposes to an affidavit must be competent to stand as a witness, assuming the need to adduce oral evidence arises. The deponent’s evidence must not be based on hearsay evidence. The evidence must come directly from the deponent’s personal knowledge of the facts, events or circumstances. The moment the deponent seeks to rely on what he or she heard or was told, then they are disqualified to depose to an affidavit under r 58(4). In Willoughby Investments (Private) Limited v Peruke Investments (Private) Limited & Anor3, ZHOU J made the following pertinent remarks: “The applicant persisted with the contention that the deponent was not authorised to represent the respondent. That argument seems to be raised with amazing regularity these days. The applicant’s contention is not that the respondent has not sanctioned the opposition to the application but, rather, that the deponent is not authorised to represent the respondent in these proceedings. But the respondent is represented not by the deponent but by its legal practitioners. The rules are clear as to the qualification for a person to depose to an affidavit. Order 32 r 227(4) provides that an affidavit filed in written applications “shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein”. In other words, a person who has knowledge of the facts and can swear to those facts is the one qualified to depose to an affidavit in application proceedings. The applicant is not contesting the assertion that the deponent to the affidavit has knowledge of the facts stated in the affidavit.” (Underlining for emphasis) Although the above views were expressed in the context of the High Court rules, 1971, they apply with equal force to the present matter. Order 32 r 227(4) was worded pretty much in the same way as r 58(4). The claimants’ contention appeared to be that the deponent to the judgment creditor’s affidavit had no legal capacity to depose to that affidavit by virtue of her being a mere legal secretary in the employ of the judgment creditor’s legal practitioners. This assertion appears in para 2.11 of the heads of argument where it was contended that: “There is no law which states that a legal secretary can depose to affidavits on behalf of the firm’s clients. The basis upon which a lawyer can depose to an affidavit on behalf of a client is because he/she is an agent of the client……A mere legal secretary is no agent of the client. It is actually inconceivable that a mere secretary can positively swear to information with regards to the client of a lawyer….”4 The claimants appear to have misconstrued the import of r 58(4). What determines the qualification of a person to depose to an affidavit is not necessarily their status in relation to the applicant or the respondent. It is simply whether they can swear positively to the facts or averments that they make in the affidavit. This why the position of the deponent is akin to that of a witness. A witness does not need to have a special relationship with the applicant or relationship. It is because of their intimate knowledge of the facts that they are called upon to attest to. The analogy of a legal practitioner and client relationship is therefore not necessarily relevant. This is why a legal practitioner is competent to depose to matters of a procedural nature in respect of which he or she has personal knowledge. It is for the above reason that the court determines that there is no merit in the point in limine raised on behalf of the claimants. The claimants did not suggest that the deponent to the judgment creditor’s affidavit had no knowledge of the matters in respect of which she bore testimony to. If the nature of her duties exposed her to the information that she swore to under oath, then she falls within the ambit of r 58(4)(a). The preliminary point is accordingly dismissed for lack of merit. THE MERITS As regards the merits of the claimants’ claim, it was not disputed that the claimants paid the full purchase price to Charible Enterprises and took occupation of the property. At the time of the sale of the property, the claimants were not aware that Charible Enterprises held title in the property by way of a title deed. They proceeded with the sale on the understanding that their transaction was subject to a cession arrangement in the absence of a title deed. For that reason, they had not sought the registration of title in their names in terms of s 14 of the Deeds Registries Act [Chapter 20:05]. The judgment creditor’s case was that she held superior rights in the property than the claimants by virtue of having registered a mortgage bond over the property. The claimants’ position was very precarious. Title in the property was registered in the name of the seller. By virtue of retaining ownership rights in the property, the seller could do as it pleased with the property. The claimants were duped by the judgment debtor and made to purchase the property on the understanding that it had no title deeds when in fact it had. The judgment debtor conducted herself in a fraudulent manner. Be that as it may, on its registration, a mortgage bond creates real rights in favour of the mortgagee. As the lender, the mortgagee is entitled to retain a hold over the property secured by the mortgage bond until the debt for which the bond was constituted is paid in full. In the event of the mortgagor defaulting on its obligations, the mortgagee is entitled to sell the mortgaged property in execution to satisfy the debt secured by the mortgage bond. The judgment creditor therefore acquired superior rights in the property by virtue of the mortgage bond. The claimants on the other hand only acquired personal rights by virtue of their agreement of sale with Charible Enterprises. Their failure to have the property registered in their names in terms of the Deeds Registries Act meant that they never acquired real rights that they could assert against a party claiming superior rights over the property. The personal rights that the claimants derived from the transaction with Charible Enterprises unfortunately do not offer them protection from a claim by the holder of real rights such as the judgment creditor herein. Their claim is against the party that sold them the property and not the mortgagee. The claimants were clearly deceived by the judgment debtor who all along knew that she could manipulate her relationship with the seller and expose the claimants to this massive loss by fraudulently mortgaging the property to a third party. It is for that reason that I had deferred the handing down of judgment in this matter when it emerged that the claimants had approached this court for the cancellation of the title deed registered in favour of Charible Enterprises in HC 1895/24. The dismissal of their claim in those means that nothing stands in the way of the disposition of this matter. In the absence of real rights in the property, it follows that the claimants have no cognisable claim for the release of the property from attachment. It is for that reason that the court determines that there is no merit in the claim, and it stands to be dismissed DISPOSITION Resultantly it is ordered that: The claimants’ claim to the property listed in Notice of Seizure dated 8 March 2024, which was placed under attachment in execution of the order in Case No, HC 2039/21 be and is hereby dismissed.The above-mentioned property attached by the applicant is hereby declared executable.The claimants shall pay the judgment creditor’s and the applicant’s costs of suit on the ordinary scale. V Nyemba & Associates, legal practitioners for the applicant Shambamuto Law Chambers, legal practitioners for the claimant Kufaruwenga, Kajevhu & Zihanzu, legal practitioners for the judgment creditor 1 HH 389/21 at p 2 of the judgment 2 HB 12/22 3 HH 178/14 at p 2 of the judgment 4 Claimants’ heads of argument at p 117 of the record of proceedings 4 HH 145-25 Case No HC 1536/24 Ref Case No 2039/21 4 HH 145-25 Case No HC 1536/24 Ref Case No 2039/21 THE SHERIFF OF ZIMBABWE versus MARGARET CHIDEDE and SOFIA CHIDEDE and IMMACULATA CHIDEDE and DINAH GUKUTA and CHARITY BOKA HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 23 July 2024 & 25 October 2024 & 7 March 2025 Opposed application-Interpleader M Mabhikwa, for the applicant RR Mutindindi, for the claimant DC Kufarunwenga, for the judgment creditor MUSITHU J: This interpleader application was filed pursuant to rule 63 of the High Court Rules, 2021 (the rules). The Sheriff of Zimbabwe is the applicant herein. Margarete Chidede, Sophia Chidede and Immaculata Chidede are all claimants. Dinah Gukuta and Charity Boka are the judgment creditor and the judgment debtor respectively. On 13 June 2023, under HC 2039/23, the judgment creditor obtained a default judgment against the judgment debtor in the sum of US$42, 000.00 or its equivalent in Zimbabwean dollars, together with interest at the rate of 10% per month calculated from the date of summons to date of full payment. Also awarded in the same order was collection commission calculated in terms of the Law Society By Laws and an order that the rights held by the judgment debtor in certain immovable property being Stand 22871 Ruwa Township of Sebastel (the immovable property) held under Deed of Transfer No. 4138/28 be declared executable. Also awarded against the judgment debtor was an order of costs on the attorney and client scale. Pursuant to the said order, the judgment creditor instructed the applicant to attach and take into execution the judgment debtor’s immovable property. The claimants also lay claim to the same property. The Claimants’ Claim The claimants claim to the immovable property is based on an agreement of sale they signed with an entity called Charible Enterprises (Pvt) Ltd (hereafter referred to as Charible Enterprises or the seller). Charible Enterprises was being represented by the judgment debtor. In terms of the agreement of sale signed on 24 July 2020, the claimants purchased the property from the seller for US$60, 000.00. An initial deposit of US$20, 000.00 was to be paid within seven days of the signing of the agreement directly to the seller. The balance of US$40, 000.00 was to be paid in 10 equal instalments of US$4, 000.00 per month from 20 August 2020 until 20 May 2020. Various acknowledgments of receipt signed by the judgment debtor and witnessed by Guest and Tanner Real Estate (the agent), showed that on 24 July 2020, the claimants paid the deposit of US$20, 000.00 to the judgment debtor. Thereafter, and between 20 August 2020 and 26 February 2021, the claimants paid varying amounts which added up to the sum of US$60, 002.00 inclusive of the said deposit of US$20, 000.00. Also attached to the claimants’ affidavit is a mandate to sale the property given to the agent, a company resolution by the seller authorising the sale, and the offer to purchase the property signed on behalf of the seller and the purchasers (the claimants). On 1 June 2021, the claimants paid a cession fee of US$500.00 to the developer Damofalls Investments to facilitate the cession of the property into their names. A utility bill from the Ruwa Local Board showed that the property was registered in the name of the seller. On 12 March 2024, the claimants were served with a writ of execution against movable property, a notice of attachment of immovable property, the notice to occupier and the High Court order. The claimants averred that they were not the judgment debtor and had been in occupation of the property since August 2021, upon paying the full purchase price. The claimants also averred that they did not owe the judgment creditor anything and for that reason, the immovable property ought not to be attached to satisfy a judgment debt that the claimants were not aware of. When the claimants discovered that the property had been attached despite their payment of the full purchase price, they lodged a police report with the Zimbabwe Republic Police, Ruwa. The claimants further contended that if the sale of the property was allowed to proceed, they would suffer irreparable harm, after having made substantial improvements since taking occupation. Further, they considered it their family home together with their families, and the sale and the consequent eviction would expose them to undue hardships. They prayed that the property be declared non-executable and released from attachment. The Judgment Creditor’s Case According to the judgment creditor, she lent and advanced to the judgment debtor the sum of US$30, 000.00 in terms of a Restructure Loan Agreement (the loan agreement) dated 30 November 2020. The loan agreement was signed by Job Mukoki on behalf of the judgment creditor and the judgment debtor. As security for the debt, the judgment debtor surrendered her rights in the property held under Deed of Transfer Number 4138/20 and registered in the name of Charible Enterprises. The judgment creditor proceeded to register a mortgage bond Number 2294/20 on the immovable property to secure the debt. The judgment debtor defaulted on her obligations and the judgment creditor obtained judgment against the judgment debtor, in terms of which the immovable property was declared executable. The judgment creditor avers that the agreement of sale that the claimants relied upon to assert their claim only created personal rights against the judgment debtor. These personal rights ranked second to the rights of the judgment creditor, which were secured by the mortgage bond. The judgment creditor’s superior rights entitled her to execute against the immovable property even in the face of the claimants’ personal rights which were not registered with the Registrar of Deeds as required by s 14 of the Deeds Registries Act [Chapter 20:05] (the Act). The claimants could not therefore assert rights of ownership in an immovable property that was not registered in their names. The Submissions Mr Mabhikwa submitted that the applicant had no direct interest in the matter save for the issue of costs. In their heads of argument, the claimants submitted that there was no valid opposition on behalf of the judgment creditor because the opposing affidavit was deposed to by a person who had no legal capacity to do so. The judgment creditor’s opposing affidavit was deposed to by one Victoria Kambare in her capacity as a Legal Secretary in the employ of the judgment creditor’s legal practitioners Kufaruwenga, Kajevu & Zihanzu. It was further submitted that it was not clear on what basis a mere legal secretary would handle a client’s files and prepare legal documents on behalf of the client, when it was the responsibility of the legal practitioner to do so. Several authorities were cited in support of the contention that a legal secretary could not depose to an affidavit on behalf of a client since it was the prerogative of the legal practitioner to represent the client and not a legal secretary. Concerning the merits of the claim, Ms Mutindindi for the claimants submitted that there existed special circumstances that warranted the protection of the claimants. The claimants had taken occupation of the immovable property after paying the full purchase price. They only became aware that the immovable property was owned under a registered title deed when they were served with the judgment creditor’s notice of opposition. Counsel further submitted that the claimants had since filed an application for the cancellation of the title deed in HC 1895/24. In his response to the preliminary point, Mr Kufaruwenga for the judgment creditor submitted that the sole qualification for deposing to a founding affidavit or opposing affidavit was the ability to swear positively to the averments made therein. One did not need to be a party to those proceedings. Citing r 58(4) of the rules, counsel further submitted that a founding affidavit or an opposing affidavit need not be deposed to by the litigant himself in person. Someone else who knew the facts could do so in their place and stead. Reference was also made to supportive authority bearing on the point that a deponent was akin to a witness. A witness needed no authority to swear or testify in a civil trial. As regards the merits of the matter, it was submitted that the claimants bore the onus to prove rights of ownership. In terms of s 14 of the Act, ownership in immovable property was conferred through registration of title. Without registration of title, one could not claim to own an immovable property. In casu, the property was registered in the name of Charible Enterprises. The claimants had not taken transfer of the property at the time of execution. For that reason, they had failed to discharge the onus to prove ownership of the property. It was further submitted that even if the claimants were successful, they could not claim transfer of the property until the mortgage bond was cancelled. Events following the reservation of judgment Before I relate to the parties’ submissions and the merits of the dispute, I need to digress and explain the circumstances that led to the delay in the handing down of judgment. On 23 July 2024, I heard arguments from the parties and reserved judgment. As I was preparing this judgment it emerged from the submissions made by the claimants’ counsel that the claimants had instituted separate proceedings in which they sought the cancellation of a title deed passed in favour of Charible Enterprises, in connection with the property. Those proceedings were filed in HC 1895/24 and were pending before this court at the time this matter was argued before me. It became clear to me that the proceedings pending in HC 1895/24 had a bearing on the matter before me. This is because if the claimants succeeded in having the title deed registered in favour of Charible Enterprises cancelled, then it meant that the mortgage bond registered in favour of the judgment creditor became ineffectual and of no consequence. The judgment creditor would not competently seek to foreclose on a property that the judgment debtor could not have legally bequeathed as security for a debt owed to the judgment creditor. The claimants’ interpleader claim would have been unassailable. The proceedings in HC 1895/24 therefore needed to be disposed of first. On 25 October 2024, I invited the parties counsel to chambers for a case management to discuss this conundrum. It was agreed at the case management meeting that HC 1895/24, needed to be disposed of first before judgment was handed down in the present matter. Counsel further agreed that they would jointly approach the registrar and request that the matter in HC 1895/24 be heard on an urgent basis. Counsel also agreed that they would, through the registrar’s office, keep me abreast of developments in HC 1895/24 Regrettably, the parties counsel did not match up to their undertaking to advise my office of further developments in the matter. It was only on 5 March 2025, after further enquiries on the matter that I was informed by the Registrar that the claimants’ application in HC 1895/24 was dismissed by MUNANGATI MANONGWA J on 27 February 2025. The dismissal of that application paved the way for the handing down of judgment in this matter. The analysis of the preliminary point and the merits Validity of the judgment creditor’s notice of opposition The validity of the judgment creditor’s notice of opposition and the opposing affidavit that accompanies it must be considered in the context of r 58(4) of the High Court rules. The provision states as follows: “4) An affidavit filed with a written application— (a) shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein; and (b) may be accompanied by documents verifying the facts or averments set out in the affidavit and any reference in this Part to an affidavit shall be construed as including such documents.” My interpretation of the above provision is that apart from the parties to the litigation themselves, any other person who can swear to the facts or averments in the affidavit can depose to an affidavit. In her heads of argument, counsel for the claimants cited the case of Minister of Defence, Security & War Veterans Affairs (N.O.)1, where MUREMBA J made the following insightful remarks: “An affidavit is a sworn statement that takes the place of oral evidence. The person who deposes to an affidavit asserts that the information they have given is true and they have personal knowledge of it. The person will also be saying that they are competent to testify if called into court about the information provided in the affidavit.” In Dhliwayo v Warman Zimbabwe (Pvt) Ltd & 2 Ors2, DUBE-BANDA J highlighted the need to distinguish between the authority to institute or defend proceedings and the competence of a witness to depose to an affidavit on behalf of a witness. A person who deposes to an affidavit must be competent to stand as a witness, assuming the need to adduce oral evidence arises. The deponent’s evidence must not be based on hearsay evidence. The evidence must come directly from the deponent’s personal knowledge of the facts, events or circumstances. The moment the deponent seeks to rely on what he or she heard or was told, then they are disqualified to depose to an affidavit under r 58(4). In Willoughby Investments (Private) Limited v Peruke Investments (Private) Limited & Anor3, ZHOU J made the following pertinent remarks: “The applicant persisted with the contention that the deponent was not authorised to represent the respondent. That argument seems to be raised with amazing regularity these days. The applicant’s contention is not that the respondent has not sanctioned the opposition to the application but, rather, that the deponent is not authorised to represent the respondent in these proceedings. But the respondent is represented not by the deponent but by its legal practitioners. The rules are clear as to the qualification for a person to depose to an affidavit. Order 32 r 227(4) provides that an affidavit filed in written applications “shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein”. In other words, a person who has knowledge of the facts and can swear to those facts is the one qualified to depose to an affidavit in application proceedings. The applicant is not contesting the assertion that the deponent to the affidavit has knowledge of the facts stated in the affidavit.” (Underlining for emphasis) Although the above views were expressed in the context of the High Court rules, 1971, they apply with equal force to the present matter. Order 32 r 227(4) was worded pretty much in the same way as r 58(4). The claimants’ contention appeared to be that the deponent to the judgment creditor’s affidavit had no legal capacity to depose to that affidavit by virtue of her being a mere legal secretary in the employ of the judgment creditor’s legal practitioners. This assertion appears in para 2.11 of the heads of argument where it was contended that: “There is no law which states that a legal secretary can depose to affidavits on behalf of the firm’s clients. The basis upon which a lawyer can depose to an affidavit on behalf of a client is because he/she is an agent of the client……A mere legal secretary is no agent of the client. It is actually inconceivable that a mere secretary can positively swear to information with regards to the client of a lawyer….”4 The claimants appear to have misconstrued the import of r 58(4). What determines the qualification of a person to depose to an affidavit is not necessarily their status in relation to the applicant or the respondent. It is simply whether they can swear positively to the facts or averments that they make in the affidavit. This why the position of the deponent is akin to that of a witness. A witness does not need to have a special relationship with the applicant or relationship. It is because of their intimate knowledge of the facts that they are called upon to attest to. The analogy of a legal practitioner and client relationship is therefore not necessarily relevant. This is why a legal practitioner is competent to depose to matters of a procedural nature in respect of which he or she has personal knowledge. It is for the above reason that the court determines that there is no merit in the point in limine raised on behalf of the claimants. The claimants did not suggest that the deponent to the judgment creditor’s affidavit had no knowledge of the matters in respect of which she bore testimony to. If the nature of her duties exposed her to the information that she swore to under oath, then she falls within the ambit of r 58(4)(a). The preliminary point is accordingly dismissed for lack of merit. THE MERITS As regards the merits of the claimants’ claim, it was not disputed that the claimants paid the full purchase price to Charible Enterprises and took occupation of the property. At the time of the sale of the property, the claimants were not aware that Charible Enterprises held title in the property by way of a title deed. They proceeded with the sale on the understanding that their transaction was subject to a cession arrangement in the absence of a title deed. For that reason, they had not sought the registration of title in their names in terms of s 14 of the Deeds Registries Act [Chapter 20:05]. The judgment creditor’s case was that she held superior rights in the property than the claimants by virtue of having registered a mortgage bond over the property. The claimants’ position was very precarious. Title in the property was registered in the name of the seller. By virtue of retaining ownership rights in the property, the seller could do as it pleased with the property. The claimants were duped by the judgment debtor and made to purchase the property on the understanding that it had no title deeds when in fact it had. The judgment debtor conducted herself in a fraudulent manner. Be that as it may, on its registration, a mortgage bond creates real rights in favour of the mortgagee. As the lender, the mortgagee is entitled to retain a hold over the property secured by the mortgage bond until the debt for which the bond was constituted is paid in full. In the event of the mortgagor defaulting on its obligations, the mortgagee is entitled to sell the mortgaged property in execution to satisfy the debt secured by the mortgage bond. The judgment creditor therefore acquired superior rights in the property by virtue of the mortgage bond. The claimants on the other hand only acquired personal rights by virtue of their agreement of sale with Charible Enterprises. Their failure to have the property registered in their names in terms of the Deeds Registries Act meant that they never acquired real rights that they could assert against a party claiming superior rights over the property. The personal rights that the claimants derived from the transaction with Charible Enterprises unfortunately do not offer them protection from a claim by the holder of real rights such as the judgment creditor herein. Their claim is against the party that sold them the property and not the mortgagee. The claimants were clearly deceived by the judgment debtor who all along knew that she could manipulate her relationship with the seller and expose the claimants to this massive loss by fraudulently mortgaging the property to a third party. It is for that reason that I had deferred the handing down of judgment in this matter when it emerged that the claimants had approached this court for the cancellation of the title deed registered in favour of Charible Enterprises in HC 1895/24. The dismissal of their claim in those means that nothing stands in the way of the disposition of this matter. In the absence of real rights in the property, it follows that the claimants have no cognisable claim for the release of the property from attachment. It is for that reason that the court determines that there is no merit in the claim, and it stands to be dismissed DISPOSITION Resultantly it is ordered that: The claimants’ claim to the property listed in Notice of Seizure dated 8 March 2024, which was placed under attachment in execution of the order in Case No, HC 2039/21 be and is hereby dismissed. The above-mentioned property attached by the applicant is hereby declared executable. The claimants shall pay the judgment creditor’s and the applicant’s costs of suit on the ordinary scale. V Nyemba & Associates, legal practitioners for the applicant Shambamuto Law Chambers, legal practitioners for the claimant Kufaruwenga, Kajevhu & Zihanzu, legal practitioners for the judgment creditor 1 HH 389/21 at p 2 of the judgment 1 HH 389/21 at p 2 of the judgment 2 HB 12/22 2 HB 12/22 3 HH 178/14 at p 2 of the judgment 3 HH 178/14 at p 2 of the judgment 4 Claimants’ heads of argument at p 117 of the record of proceedings 4 Claimants’ heads of argument at p 117 of the record of proceedings