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1. Brief Background
Times without number most learned colleagues and the public in general have faced the above question as they attempt to answer difficult questions arising from consequences of joint ownership of immoveable matrimonial property.
2. Writer’s opinion
In addressing the question, the majority of us are quick to maintain the narrow view that it is not possible. This prompted the writer to make a further indepth research on the subject and come up with a paradigm shift in favour of the view that it is indeed possible to effect attachment and sale of the defaulting party’s undivided share of jointly owned property however subject to qualification of certain conditions. This view is settled by Gwaunza JA as she then was in the land mark 2019 judgment of the Supreme Court of Zimbabwe:
a) Case law
Judith Ishemunyoro (nee Mandidewa)
1. Anthony Ishemunyoro
2. Tynserve Distributors (Pvt) Ltd
3. The Registrar of Deeds
4. The Sheriff for Zimbabwe SC 14/19
b) It is common cause that ownership is the most comprehensive real right that a person can have over a thing or property whether moveable or immoveable, corporeal or incorporeal hence this right cannot be easily be infringed upon or taken away without a Court Order. To this end, a joint owner can alienate, transfer, pledge or assign his/her joint interest in the property as he/she so wishes.
c) Section 14 (a) of the Deeds Registries Act, Chapter 20 : 05 says,
“The ownership for immoveable property may be conveyed from one person to another only by means of a Deed of Transfer executed or attested by a Registrar.”
It therefore follows that once a Title Deed confirming joint ownership of immoveable property is duly registered in the Deeds Registry, the holder of an undivided share is free to deal with his/her portion as he/she deems fit. A defaulting joint owner shall be liable for consequences arising from his/her undivided portion.
This approach was adopted in the aforementioned locus classicus case in which the Court relied on earlier decisions in which the same principle was upheld but arising from different facts:
- Gonyora v Zenith Distributors (Pvt) Ltd and others 2004 (1) 195 H
- Sheriff of Zimbabwe v Mukoko and another SC 805-17
In Gonyora, the Court ruled that :
It was inconceivable that the innocent party’s undivided share in a matrimonial property could be attached and sold in execution without his/her consent. This would lead to an absurd result.
In Sheriff of Zimbabwe v Mutoko, in interpleader proceedings, the Court found that a writ is only enforceable against the undivided half of the judgment debtor and not for the whole property.
3. The Constitution
In casu, despite the spirited performance by Counsel for the Appellant, (Mr. T. Biti) urging Court to invoke Section 167 Constitution calling for judicial activism to develop common law to alleviate the general plight of married women in joint ownership, the Apex Court could not be swayed as this would require full participation of all stakeholders ie. financial institutions and banks who would suffer prejudice if debtors in joint ownership would easily escape liability simply because the security property is jointly owned. The Court felt that this should be left to the Legislature to deal with. The Court felt that this should be left to the Legislature to deal with.
The common law principle that ownership is the most comprehensive real right forms the basis of the settled position upheld in ISHEMUNYORO case that the owner of an undivided portion in a jointly owned property is free to enjoy the full use of his interests therein without interference from a co-owner. It is therefore now settled that an undivided share in a jointly owned property can be attached and sold in execution pursuant to a default judgement against one of the joint owners. However, the court did not proffer any relief to the plight of the innocent co-owner who suddenly has to share ownership with a total stranger. The court left it open for the Legislature to craft laws to address the absurd results after wide consultations with all stakeholders.
DATED AT BULAWAYO ON THIS 19th DAY OF OCTOBER 2021
HERBERT T. CHIMBETETE
Coghlan And Welsh Legal Practitioners
J.M.N Nkomo & 8th Avenue