DEPUTY SHERIFF HARARE v KINGSLEY & ANOR 2014 (2) ZLR 394 (H)

Flynote

Constitutional law — Declaration of Rights — referral of alleged breach to Constitutional Court — current legal framework sufficient to deal with concerns raised by applicant — application for referral refused

Family law — husband and wife — matrimonial property — matrimonial home — registration of in name of husband — not a bar to wife seeking D to claim ownership

Headnote

The sheriff had attached an immovable property registered in the name of the judgment debtor in this matter. The property, which was registered in the name of the judgment debtor, was the matrimonial home of the ^e judgment debtor and his estranged wife, the applicant. She was living at the property. Divorce proceedings were pending. She claimed a right to the property and the sheriff instituted interpleader proceedings. The applicant then sought to have the matter referred to the Constitutional Court on a number of grounds, including the right to protection of the law and protection against discrimination. Held, that the application was frivolous and vexatious. The current legal framework in this country is sufficient to deal with the applicant's concerns. While the law relating to the right of a wife to the matrimonial estate, as determined by the principles of family law, and the rights of her husband in the same property as determined by the principles of the ^s law of property has been described as unsatisfactory, there is a plethora of cases which show that the mere registration of a property in the name of a particular spouse is no bar to the court making an appropriate order contrary to such registration, as where, for example, it is shown that the information in the Deeds Office is not reflecting the correct situation as regards the actual ownership of the particular property.

The civil processes currently in force in this country could be invoked to ^? protect the applicant's situation if she can demonstrate entitlement to the attached property. This could be achieved even through the filed interpleader proceedings.