High Court clears Spitzkop land for auction, describes alleged sale a ‘simulated transaction’

THE High Court has dismissed a last-ditch bid to block the sale of a prime Spitzkop property attached to satisfy a debt, ruling that the alleged purchaser failed to prove ownership and branding the purported transaction “nothing but a simulated transaction.”

In an ex tempore judgment, Justice Samuel Deme threw out an interpleader claim by the Zimbabwe Free Range Poultry Producers Trust, paving the way for the Sheriff of Zimbabwe to proceed with execution against Lot 18 of Lot 9 of Spitzkop, measuring 2,0168 hectares.

“The Claimant has failed to plead special circumstances justifying this court’s intervention,” Deme J ruled.

“In my view, the sale of the property in dispute is nothing but a simulated transaction given the circumstances surrounding the agreement.”

The property was attached in execution of a High Court judgment granted on 13 February 2025 in case HCH195/25, in favour of Zimbabwe United Passenger Company Limited against Metbank Limited, the judgment debtor. Acting on the judgment creditor’s instructions, the Sheriff attached the Spitzkop property in June 2025.

The Trust moved to stop the sale, claiming it had bought the land on 4 December 2023 and paid transfer costs even before the agreement was concluded. It argued that repeated but unsuccessful efforts had been made to secure transfer and urged the court to protect it on the basis of “special circumstances.”

But the judgment creditor opposed the claim, insisting that the land remained registered in Metbank’s name and that, in law, ownership of immovable property passes only upon registration.

“It is a well-established principle that ownership of immovable property is conveyed through a deed of transfer,” the court said, citing section 14 of the Deeds Registries Act.

Justice Deme accepted that an unregistered purchaser can, in limited cases, be protected against execution if special circumstances exist, as outlined by the Supreme Court in CBZ Bank Ltd v Moyo. However, he found that the Trust fell far short of that threshold.

“In casu, the Claimant’s last step in acquiring the property was the signing of the agreement of sale,” the judge said. “After the signature, no further concrete steps were executed… apart from WhatsApp messages. In my opinion, such messages cannot constitute special circumstances.”

The court noted that unlike the purchaser in CBZ Bank v Moyo, the Trust did not show that it had obtained tax or rates clearance certificates, nor did it demonstrate clear, consistent steps to secure transfer. Its claim that transfer fees had been paid was also rejected.

“It is uncommon that the purchaser settles transfer costs before the purchase price, and even before the conclusion of the agreement,” Deme J said. “Common sense and logic demand that transfer costs can only become payable once the parties have finally agreed on the purchase price.”

The judge was particularly critical of handwritten receipts produced late in the proceedings.

“A perusal of the receipts suggests that such receipts were handwritten, which trivialises their probative value,” he said. “Such receipts can be authored at any time to suit the circumstances.”

The Trust’s failure to produce proper receipts for the purchase price, relying instead on an acknowledgement generated by the judgment debtor itself, further undermined its case.

“In my view, this is a sign of collusion between the Judgment Debtor and the Claimant,” the court found. “This puts the whole agreement of sale into dispute.”

Justice Deme also questioned why no meaningful action had been taken against the conveyancing lawyers allegedly responsible for the failure to effect transfer nearly two years after the deal was said to have been concluded.

“The Claimant ought to have done more than what it did in order to enforce its rights,” he said.

In the result, the court dismissed the Trust’s claim with costs, declared the Spitzkop property executable, and ordered the claimant to pay both the judgment creditor’s and the Sheriff’s costs.

The ruling clears the way for the Sheriff to proceed with the sale of the property to satisfy the outstanding judgment debt.