Debt re: Security, Executability of Assets, Jus In re Aliena, Parate Executie or Summary Execution & Pactum Commissorium

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

Our courts have held that a husband and wife hold a uniquely special relationship and that they normally have a common interest and household: see Warren Park Trust v Antony Ernest Pahwaringira and Others HH39-09 and Masiyiwa Cleopas Gonye v Stella Mavis Gonye SC15-09.

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED
Ruled By: MUREMBA J

Turnall Holdings Limited, which is the judgment creditor, obtained judgment in case no. HC3734/11 on 20 July 2011 against Sherland Enterprises (Pvt) Ltd. Pursuant to that judgment it instructed the applicant to attach certain property. The property was attached at Stand No.7763, opposite National Sport Stadium, Belvedere West, Harare on ...

Consequent upon such attachment the claimants laid claim to the property. The first claimant, Shephard Mayaya, claims that the Mazda 323 AAW 2029 is his, whilst the second claimant, Daphne Makotore, lays claim to household property. The household property comprises a metal garden resting bed, television, dining room couch, TV stand and an upright fridge.

In proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership. The claimant must prove, on a balance of probabilities, that the property is his or hers: Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R)...,.

The first claimant's claim

The first claimant attached the registration book of the Mazda 323 to his opposing affidavit. The registration book is in the name of Zimsun Leisure Group. The first claimant also attached an Agreement of Sale which was entered into between African Sun Limited (Zimsun) and Simeon Mandeya for the sale of the Mazda 323. There is also a receipt which shows that Simeon Mandeya paid US$2,000= on 6 January 2012 for the purchase of the said motor vehicle. The first claimant also attached an Agreement of Sale which was entered into by and between himself and Simeon Mandeya on 12 August 2012 which shows that he paid US$4,500= for the purchase of the same motor vehicle. The registration book and the agreements of sale help show how the motor vehicle changed hands from the first owner to the first claimant.

The Agreement of Sale that is in the first claimant's favour constitutes prima facie proof that he is the owner of the Mazda 323. With this, the judgment creditor now had the reverse onus to rebut the prima facie proof that the motor vehicle belongs to the first claimant.

The judgment creditor argued that since the registration book is not in the name of the first claimant but Zimsun Leisure Group, the first claimant had failed to discharge the onus on him to show that the motor vehicle is his. Counsel for the judgment creditor also argued that by failing to change ownership of the motor vehicle into his name within two weeks of purchasing it, as is required in terms of section 14 of the Vehicle Registration and Licensing Act [Chapter 13:14], the first claimant was in violation of the law, and, as such, it rendered him not to be the owner of the motor vehicle.

The judgment creditor also argued that what compounds the first claimant's claim is that the motor vehicle was attached at the judgment debtor's premises. Citing the case of Zandberg v Van Zyl 1910 AD 258 it argued that, at law, possession of a movable raises a presumption of ownership. So, the fact that the Mazda 323 was attached at the judgment debtor's premises raises the presumption that the motor vehicle is the property of the judgment debtor.

The penalty for failing to change ownership of a motor vehicle, as is required by the law, is a fine not exceeding level four or to imprisonment not exceeding 3 months or to both such fine and such imprisonment. The penalty provision does not go on to say that the motor vehicle then ceases to belong to the offender. It is therefore frivolous to argue that because the registration book is not in the name of the first claimant therefore he is not the owner of the motor vehicle.

A registration book, on its own, is not proof of legal ownership. This is even endorsed on registration books. If we were to go by the argument that a registration book is proof of legal ownership then it would mean that in the present case the owner of the Mazda 323 is Zimsun Leisure Group. It would mean that neither the first claimant nor the judgment debtor is the owner of this motor vehicle. It would therefore mean that the judgment creditor has no basis for having this motor vehicle sold in order to satisfy its debt.

The above argument brings me to the argument that the agreements of sale are prima facie proof of ownership.

Other than making bald averments that the agreements of sale were concocted, the judgment creditor did not advance any evidence or proof to show that they were indeed concocted in order to defeat its claim. Under the circumstances, I conclude that the first claimant managed to prove, on a balance of probabilities, that the Mazda 323 is his motor vehicle. He managed to rebut the presumption that the motor vehicle belongs to the judgment debtor since it was attached at the judgment debtor's premises.

The second claimant's claim

In her affidavit, which she deposed to soon after the property had been attached on 20 January 2014, the second claimant stated that her connection with the judgment debtor is that she was a Director of it. Her late husband, Charles Nyamadzao, was the Principal Director. She said that the judgment debtor has since ceased to operate and now exists in name only. However, she did not say when it ceased to operate.

Then, in her affidavit of 25 February 2014, in response to this application, the second claimant stated that the household goods were attached at her house. She said that the applicant found them in her control and possession. She argued that although she had not presented documents which show that the goods are hers, that alone should not defeat her claim. She said that these were goods which were in her home.

The second claimant correctly argued that a company is a separate legal persona from its members, and, as such, it would be improper to attach the property of the members to satisfy the debt of the company. In Cape Pacific Ltd v Investments (Pvt) Ltd and Others 1995 (4) SA 790 (AD)..., it was said;

“It is undoubtedly a salutary principle that our courts should not lightly disregard a company's separate personality but should strive to give effect to and uphold it. To do otherwise would negate or undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attach to it.”

In Salomon v Salomon & Co Ltd [1897] AC 22 (HL) and Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530..., the same principle, that a company is a separate entity distinct from its members, was enunciated.

In casu, the second claimant was not a party to the proceedings which gave rise to the judgment which resulted in the attachment of the household goods in dispute. Therefore, it will be improper for her property to be attached to satisfy the debt of the judgment debtor.

In trying to determine whether the household goods that were attached belong to the claimant some problems arise. The first problem is that there is no evidence whatsoever to show that these goods belong to the second claimant. Receipts would have assisted. In her two affidavits the second claimant does not explain why she does not have any receipts. She does not even explain when she acquired these goods. It is only in the heads of argument that she explains when she acquired the goods and states that she failed to locate the receipts thereof because she acquired the goods a long time ago. A claim should stand or fall on its founding papers. The claimant cannot seek to introduce evidence in the heads of argument. In the heads of argument a party or his or her legal practitioner should simply outline the submissions they intend to rely on and also set out the authorities, if any, they intend to cite.

The second problem is that it is not in dispute that the property was attached at Stand No. 7763 Opposite National Sports Stadium, Belvedere West, Harare. The judgment creditor stated that this address has always been the judgment debtor's business premises. All court process pertaining to the case which gave rise to the attachment of the goods was served at this address. De VILLERS CJ, in Zandberg v Van Zyl 1910 AD 258, said;

“…, possession of a movable raises a presumption of ownership and that therefore a claimant in an interpleader suit claiming the ownership…, must rebut that presumption by clear satisfactory evidence.”

In casu, the fact that the movable goods were attached at the judgment debtor's premises raises the presumption that they belong to the judgment debtor.

Whilst the second claimant, in her affidavit of 25 February 2015, which is supposed to be her opposing affidavit although it is titled “answering affidavit”, stated that the goods were taken from her home and that the goods were in her possession and control, she did not state her home address. She did not dispute that the goods were attached at Stand No.7763 but at the same time she did not explain whether or not she also resides at this address. The court was left wondering whether or not her home is situated at the same address as the judgment debtor. She clearly explained that she used to be the Director of the now defunct judgment debtor. Under the circumstances, she ought to have explained why she says the property was attached at her home when the judgment creditor is saying that the property was attached at the judgment debtor's premises.

In the absence of an explanation of the relationship between the second claimant's home and the judgment debtor's business premises it cannot be said that the second claimant managed to show that the property was attached at her home and not at the judgment debtor's. She failed to lead clear satisfactory evidence. This, coupled with the lack of any documentary proof to show that the goods belong to the second claimant leads me to the finding that the second claimant failed to prove, on a balance of probabilities, that the household goods are hers.

In the result, it is ordered that;

1. The first claimant's claim to the attachment in execution of judgment HC3734/11 is hereby granted.

2. The Mazda 323, as set out in the Notice of Service and Attachment dated 16 January 2014, issued by the applicant, is declared not executable.

3. The judgment creditor pays the costs of the first claimant and the applicant.

With respect to the second claimant, it is ordered that:

1. The second claimant's claim to the movable goods placed under attachment in execution of judgment HC3734/11 is hereby dismissed.

2. The goods, as set out in the Notice of Seizure and Attachment dated 16 January 2014, issued by the applicant, is declared executable.

3. The second claimant pays the costs of the judgment creditor and the applicant.

HH484-14 : L.M.S. TIMBERS (PVT) LTD and LUKA PHAKATHI vs THE SHERIFF OF ZIMBABWE and PEOPLE'S OWN SAVINGS BANK and SETH CHIGODORA
Ruled By: MATHONSI J

The applicants have been fighting tooth and nail since October 2011 to save the immovable property known as Stand 2321 Bulawayo Township of Bulawayo Township Lands, otherwise known as Number 46 Collenbrander Avenue, Northend Bulawayo (“the property”) from sale in execution to satisfy a debt they owe to the second ...

The background is that the second respondent advanced to the applicants a loan of US$15,000= in terms of a loan agreement signed on 15 March 2010. The property was mortgaged as security for the loan. As is now the norm in this country, the applicants failed to repay the loan resulting in summons being issued against them in HC3330/11 for payment of the sum of $13,021=04 outstanding on the capital amount and $12,553=57 being interest levied at the rate of 30% per annum. The applicant did not contest the action, and, inevitably, default judgment was granted on 31 August 2011 in terms of which the property was declared specially executable to satisfy the debt. Following the issuance of a writ of execution, the property was placed under judicial attachment on 3 October 2011 and poised for sale.

The applicants would have none of it.

They approached this court in HC10970-11, in terms of Rule 348A(5b), seeking a suspension of the sale of the property arguing that the property was a dwelling house for the second applicant and his wife, Enesiya, who would suffer great hardship if it was sold. That application came to naught. The property was sold by public auction on 22 February 2013, by Clipcrunt Real Estate, on the Sheriff's instructions. The applicants could not accept that outcome. They duly lodged an objection to the sale to the Sheriff in terms of Order 40 Rule 351(1)(b) of the High Court of Zimbabwe Rules, 1971. The Sheriff conducted a hearing attended by all interested parties and concluded as follows:

“The respondent alleges that the sale was done despite assurances from the Acting Sheriff, Mr Madega, that the sale will not go on. The other ground of objection was that an application to suspend the sale, filed under HC10970-11, was ignored. The respondent's assertion that the Acting Sheriff, Mr Madega, advised them that the sale will not go on is unfounded because the Acting Sheriff is just a holder of public office and not an attorney of any of the parties to these proceedings. Without instructions from the instructing attorney there is no way the Acting Sheriff would have stopped the sale.

On the issue of seeking to have the sale set aside on the basis that an application to suspend the sale was ignored, which application was filed under case number HC10970/11, it is only when a court order has been granted stopping the sale and in this instance the court application was still pending and the mere filing of a court application does not stop the sale. The respondent has failed to raise good grounds for the setting aside of the sale and therefore the Sheriff will proceed to confirm the sale.”

After confirmation of the sale, the applicants did not capitulate. Instead, they filed this application in terms of Rule 359(8) of the High Court Rules, which provides:

“Any person who is aggrieved by the Sheriff's decision, in terms of subrule (7), may, within one month after he was notified of it, apply to the court by way of a court application to have the decision set aside.”

The founding affidavit of the second applicant repeats that the house is the family's primary residence, and, as such, they will suffer irreparable harm and far reaching hardship if it is sold resulting in their eviction. As the applicants have paid a total of $15,700=, according to his calculation, only a sum of $1,087= remains outstanding and it would be unjust to sell the property for such a small debt. He also alleges that the 30% interest levied by the second respondent is unlawful without explaining why that would be so when the applicants committed themselves to that on the loan agreement. Luka Phakathi goes on to make reference to the application to suspend the sale filed under HC10970-11 arguing that the sale should not have been proceeded with against the backdrop of that application, which does not appear to have been prosecuted.

The Sheriff made a finding on that point, and correctly in my view.

He then proceeds to argue, extraneously, that the respondents did not respond to the application for suspension of the sale and that the property should not have been sold without exhausting movable property which movable property he does not even identify. Extraneously in the sense that the filing of an application to suspend a sale on its own did not stop the sale and the immovable property in question was declared executable by order of this court. It had to be because it was given as security for the debt owed to the second respondent.

The application has been opposed by the second respondent which states, through the opposing affidavit of Daniel Nyamushamba, its Credit Controller, that the applicants should have known when they put the property as security for the debt that in the event of a default it would be auctioned to recover that debt. Daniel Nyamushamba insists that the applicants still owe $12,168=91 because whatever they paid was appropriated first and foremost towards the costs, then interest before capital in terms of clause 3 of the facility agreement of the parties. The applicants are also liable for the taxed costs of the second respondent in terms of the bill of costs attached to the opposing affidavit.

The legal position in respect of a sale of immovable property confirmed by the Sheriff was stated in very clear terms by the Supreme Court in Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S)...,:

“Before a sale is confirmed in terms of Rule 360, it is a conditional sale and any interested party may apply to court for it to be set aside. At that stage, even though the court has a discretion to set aside the sale in certain circumstances, it would not readily do so; see Lalla v Bhura (1973) (2) ZLR 280 (A) at 283 A-B. Once confirmed by the Sheriff, in compliance with Rule 360, the sale of the property is no longer conditional. That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of Rule 359 for it to do so. See Naran v Midlands Chemical Industries (Pvt) Ltd SC220-91 (not reported) at pp6-7.

When the sale of the property not only has been properly confirmed by the Sheriff but transfer effected by him to the purchaser against payment of the price, any application to set aside the transfer falls outside Rule 359 and must conform strictly with the principles of the common law.

This is the insurmountable difficulty which now besets the appellant.

The features urged on his behalf, such as the unreasonably low price obtained at the public auction and his prospects of being able to settle the judgment debt without there being the necessity to deprive him of his home, even if they could be accepted as cogent, are of no relevance. This is because, under the common law, immovable property sold by judicial decree after transfer has been passed cannot be impeached in the absence of an allegation of bad faith, or knowledge of the prior irregularities in the sale by execution or fraud.”

See also Mhlanga v Sheriff of the High Court 1999 (1) ZLR 276 (H).

It is not clear from the papers, and counsel did not allude to this in submissions, whether transfer of the property to the third respondent has taken place. What is clear though is that the sale was confirmed by the Sheriff and he gave reasons for doing so. I have already stated that the decision to confirm the sale was a correct one in the circumstances. Whichever way, the issue of whether transfer has been effected or not pales to insignificance when one considers that the sale was confirmed. For that reason, the court will be very slow to set aside the sale pursuant to an application made in terms of Rule 359(8). In my view, there exists no ground whatsoever to set aside the sale. The applicants gave the property as security for a loan advanced by the second respondent. By their own admission, the loan has not been fully repaid. Whether what is owed is $1,087= or more is neither here nor there. The fact remains that the applicants have not repaid the loan in full. There is also the issue of interest and taxed costs which have been shown to be owing. For that reason, the second respondent was within its rights to proceed against the property.

The argument that it should have proceeded against un-named movable property cannot be taken seriously either.

For a start, the applicants did not point to any such property as would satisfy the debt. More importantly, the second respondent instituted foreclosure proceedings in respect of mortgaged property and obtained a court order declaring such property specially executable. In that regard, there was no need to look for unknown quantities of movable property given that there existed security in the form of the property. I am in total agreement with the views expressed by GILLESPIE J in Morfopoulos v Zimbabwe Banking Corporation Ltd & Ors 1996 (1) ZLR 626 (H)…, that:

“The question of the setting aside of sales in execution of property is one that has received considerable attention in recent times. The administration of justice has not been without criticism, unjustified in my view, of insensitivity to the plight of judgment debtors who face the possible loss of immovable property, including residential accommodation, in satisfaction of a judgment debt.

The rules that have evolved concerning the sale of properties in execution are designed to find a balance, on the one hand, between the need to protect a judgment debtor who is unfairly being hounded to insolvency and homelessness, and, on the other, the imperative to ensure that the judgment creditor, forced to go to court to obtain satisfaction of his debts, is provided with his just relief. A further factor has been given additional consideration that is the requirement that the reliability and efficacy of sales in execution be upheld.”

In my view, while a judgment debtor is entitled to test the efficacy of the sale in execution before he loses his property, it should also be borne in mind that financiers are only prepared to part with their money to debtors as loans on the strength of security. They need the assurance that upon a default, they will be able to foreclose on mortgaged property to recover what is due. A judgment debtor standing in the way of execution bears the onus of proving the grounds of interference with a sale set out in the Rules. Where, as in this case where counsel for the applicants stated that they rely on “any other good ground” to set aside the sale, evidence relied upon for interference should be placed before the court. The applicants have dismally failed to show any good cause for interference. In fact, the application exhibits desperation and a discernable unwillingness to be bound by the terms of an agreement the applicants went into with their eyes open than any merit.

In the result, the application is hereby dismissed with costs.

HH39-15 : THE SHERIFF OF THE HIGH COURT and KWEKWE CONSOLIDATED GOLD MINES (PVT) LTD vs MINISTER OF HIGHER AND TERTIARY EDUCATION N.O (Representing ZIMBABWE MANPOWER DEVELOPMENT)
Ruled By: MANGOTA J

On 1 December 2013, the judgment creditor (the creditor) issued summons against Homestake Mining, the judgment debtor (the debtor) claiming $33,642=61 and interest at 5% per annum calculated from 1 January 2011 to date of payment. The debtor was a duly incorporated company with limited liability.Its address of service was ...

Its address of service was given as 1 Office Road, Global Phoenix, Kwe-Kwe …,.

The Additional Sheriff's return of service, Advice No.1710, showed that process which related to the creditor's suit was served at the abovementioned address on 13 December 2013. The remarks portion of the Sheriff's return read:-

“Served on Nhedzi, security guard.”

Two months after service of process on the debtor, and the latter not having entered appearance to defend, the creditor did, on 14 February 2014, successfully apply for default judgment.

Following the default judgment which had been entered in its favour, under case number HC10438/13, the creditor did, on 10 July 2014, instruct the applicant to attach and take into execution goods which were at 1 Office Road, Global Phoenix, Kwe-Kwe, the debtor's address for service. When the applicant attached the goods, Kwe-Kwe Consolidated Gold Mines (Pvt) Ltd (the claimant) insisted that the attached property belonged to it and not to the debtor. It, accordingly, caused an inter-pleader summons to be processed so that the court would decide on the ownership of the property.

The creditor opposed the interpleader summons in a very stiff way. The applicant, who is the Sheriff of this Court, did nothing other than to state:

(a) The history of the matter under case number HC10438/13;

(b) The instructions which he had received from the creditor; and

He called upon the claimant and the creditor to deliver to the Registrar of this court particulars of their claim to the goods which he had attached.

The claimant's position was that the debtor and itself were two different legal entities. It, in this regard, attached to its papers Annexures B1 and B2. The annexures were, respectively, copies of the CR6 form and certificates of incorporation which pertained to itself as a legal persona. Annexure B1, Form No.CR6, gives, as the claimant's physical business address, 1 Office Road, Globe and Phoenix Mine, Kwe-Kwe and its postal address is stated as P.O. Box 393, Kwe-Kwe.

The creditor's claim against the debtor arose during the period which extended from January 2011 to August 2013. The claim comprised levies and surcharges which were due to the creditor from the debtor in terms of section 54(3) and (4) of the Manpower Planning and Development Act [Chapter 28:02] as read with section 3 to 5 of Statutory Instrument 74/1999, S.I.74 of 1999.

It is common cause that at the time that the claim arose, the debtor gave 1 Office Road, Global Phoenix, Kwe-Kwe as its address of service. Paragraph 2 of the plaintiff's declaration is relevant in the mentioned regard. The summons which the creditor issued against the debtor is also to the same effect. The summons and declaration were served at the mentioned address on 13 December 2013. They were served upon one Nhedzi who was a security guard at the given address.

Neither the claimant nor the debtor denied that they saw the creditor's summons and/or declaration. They, in fact, confirmed having had sight of the creditor's summons and declaration. For reasons which were best known to them they did not enter appearance to defend. Nor did the claimant write to draw the creditor's attention to the fact that its summons and declaration had been served on the wrong party. It maintained its silence for some eight weeks running.

When the ten days dies induciae period within which, according to the Rules, the debtor should have responded, expired, the creditor applied for default judgment. This was duly granted to it.

The silence of the claimant created, in the mind of the creditor, the distinct impression that the debtor, which it had successfully sued, operated from the address which the claimant claimed to be its business address. That same silence also persuaded the creditor to believe that the property which was at the mentioned address belonged to no one else but the debtor. It is, therefore, on the basis of the mentioned silence on the part of the claimant that the creditor instructed the applicant to attach and take into execution property which was at 1 Office Road, Globe and Phoenxi Mine, Kwe-Kwe.

The property, it has already been observed, was attached on 10 July 2014. The Sheriff's return of service, Advice No.018557, which bears the mentioned date, is relevant on this aspect of the case. Its remarks portion reads:

“Defendant's goods attached in the presence of Mr Nhamo who is the General Manager for the Defendant. See attached inventory for more information.”…,.

Mr Nhamo, whom the Sheriff described as the debtor's General Manager, deposed to an affidavit for and on behalf of the claimant. He did so on 8 September 2014. He stated, in the affidavit, that he was the claimant's General Manger whom the latter authorised to swear to the affidavit which founded the claimant's claim against the creditor and the debtor. He did not controvert the Sheriff's return which stated that he was the debtor's General Manager. All he did was to state that the debtor and the claimant were separate legal entities. He requested the court to view them as such. The court was, therefore left in a quandary. It could not, and cannot, tell if Emmanuel Toga Nhamo is General Manager for the debtor or the claimant - or both of them.

When the property was attached, on 10 July 2014, Mr Nhamo, it is common cause, did not protest. Nor did he advise the bearer of the writ of execution that what he had attached did not belong to the debtor but to the claimant. He, once again, gave no reasons at all for his silence. As General Manager, Mr Nhamo occupied a very important position in the claimant's operations. He knew that the attachment which had occurred could cripple the business operations of the claimant. That knowledge on his part notwithstanding, he remained very mute on such a vital part of his business operations and/or activities.

The goods were attached on 10 July 2014. They were removed from 1 Office Road, Globe and Phoenix Mine, Kwe-Kwe, on 29 July 2014. The claimant did nothing about the attachment and the removal of the property. It remained mute for the nineteen-day period which existed between the two mentioned processes. It also did nothing for the period which followed the removal of the goods. It remained mute for the whole of August 2014 and only issued the Interpleader Notice on 9 September 2014. It, in short, remained inactive for some forty-one (41) days running. There is, therefore, no doubt that the claimant's attitude remained inconsistent with the conduct of a party which was desirous of protecting its business interests.

It is a well established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.

The claimant stated that the property which the applicant attached belonged to it. It is for the mentioned reasons that the applicant called upon the claimant to furnish the court with particulars of its ownership of the property which forms the subject of the present proceedings.

The claimant, in substance, produced no particulars which showed that the attached goods belonged to it. The creditor's contention was that the claimant should have furnished the court and itself with documentary evidence of its ownership of the property.

The court associates itself with the creditor's submissions on this aspect of the case.

An inventory of assets or an assets register would, in the view which the court holds of the matter, have sufficed as proof of ownership of the property by the claimant.

The claimant attached to its papers Annexures C and D. The annexures relate, respectively, to the registration book and insurance papers of a Toyota Landcruiser motor vehicle which the applicant attached together with the other goods which were at 1 Office Road, Globe and Phoenix Mine, Kwe-Kwe on 10 July 2014. The motor vehicle with registration number ACJ 8139 was registered in the name of one John Lee Waverley of Number 6, Helanvale, Chicago, Kwe-Kwe.

The claimant stated that Mr Waverley was the owner of the vehicle. It said it was using the motor vehicle for its business.

It, however, did not state the circumstances under which the car came into its custody, care and/or use. It, in short, did not advise the court, and the creditor, whether Mr Waverley hired out the car to it or just gave it out to the claimant as an act of benevolence on his part. It did not state what Mr Waverley stood to gain from surrendering what it said was his valuable car to a going concern. Nor did it request Mr Waverley, whose interests had been adversely affected by the conduct of the applicant, to react to that conduct and assert his right in the car either by way of a sworn statement or a letter which aimed at correcting the situation which had obtained.

It is for the mentioned reasons, if for no other, that the creditor insisted that the motor vehicle belonged to the debtor and was, therefore, properly attached together with the other property which appears in the Notice of Seizure and Attachment. The creditor's attitude was that Mr Waverley may have sold the car to the debtor but ownership of the same had not taken place when the attachment and removal of the goods occurred.

The court is of the same view.

Messrs Mutatu & Partners Legal Practitioners were representing the debtor in the letters which they addressed to the creditor's legal practitioners on 11 July and 3 August 2014. The same firm of legal practitioners represented the claimant in the interpleader proceedings….,.

It requires little, if any, effort to realise that the distinction between the debtor and the claimant is not only blurred but is also, in fact, totally non-existent, particularly in terms of ownership of assets by the one or the other. The court's observations in this regard find support from the following findings which it has made:

(a) The physical business address of the claimant is also that of the debtor;

(b) The General Manager of the claimant is also the General Manager of the debtor; and

The above, coupled with the conduct of the claimant, as elucidated in the body of this judgment, convinces the court that the property which the applicant attached and removed for sale in execution belongs to the claimant and the debtor. The debtor and the claimant own the property jointly, in the court's view. If the opposite was the case, as the claimant would have the court to believe, the claimant would have wasted no time when the summons and declaration were served upon it on 13 December 2013. It would have moved swiftly to assert its rights and protect its interests without any further ado.

The court has considered all the circumstances of this case.

It is satisfied that the claimant's claim has no merit at all in law or in logic. It failed to establish its claim to the property in a very dismal way. The court, in the result, dismisses, with costs, the inter-pleader application and orders that all the property which was placed under attachment be and is hereby declared executable.

HH378-20 : THE SHERIFF FOR ZIMBABWE vs FRANK HUMBE and DESMOND MUCHINA
Ruled By: CHINAMORA J

IntroductionOn 2 June 2020, I heard argument in relation to interpleader proceedings brought in terms of Order 30 Rule 205A as read with Rule 207 of the High Court Rules 1971.I dismissed the claimant's claim, and the order which I granted, inter alia, declared the property which had been placed ...

Introduction

On 2 June 2020, I heard argument in relation to interpleader proceedings brought in terms of Order 30 Rule 205A as read with Rule 207 of the High Court Rules 1971.

I dismissed the claimant's claim, and the order which I granted, inter alia, declared the property which had been placed under attachment executable. I now provide the reasons for my decision.

Background

The facts giving rise to this application are:

The judgment creditor obtained a judgment in the sum of US$352,851=30 plus interest and costs against Sparkles Services (Pvt) Ltd and Godfrey Munyamana (“the judgment debtors”). Pursuant to the judgment, the judgment creditor caused a writ of execution to be issued on 8 May 2018, resulting in the Sheriff attaching Stand 67 Guildford, Borrowdale Estate of Subdivision H of Guildford Borrowdale Estate, measuring 6,803 square metres, held under Deed of Transfer No.1447/2009 (“the property”).

This was done by notice of attachment issued on 22 May 2018.

The property is registered in the name of the judgment debtor.

Not amused by the attachment, the claimant caused the applicant to institute inter pleader proceedings claiming that the property belonged to him.

These proceedings were commenced on 10 September 2019.

He averred that he purchased the property from Mr Godfrey Munyamana and Mrs Fadzayi Munyamana on 15 December 2013, and had fully paid the purchase price.

The claimant asserted, that, he had instituted proceedings under HC11367/15 seeking transfer, but the lawsuit was settled through a Deed signed on 12 December 2017.

He further said that the parties had done the capital gains tax assessments at ZIMRA.

On that basis, he claimed that the property was his, or special circumstances existed for the property not to be declared executable.

On his part, the judgement creditor was steadfast that the property was executable since it was registered in the name of the judgement debtor. He proceeded to argue, that, by law, the judgment debtor owned the property.

The judgment creditor contended, that, the claimant applied, under HC5642/18, to obtain transfer under the Titles Registration and Derelict Lands Act [Chapter 20:20], never pursued the application as it was incompetent.

Finally, he submitted, that, as he had no title deed, he should take issue with the judgment debtor and seek an appropriate remedy through the court.

I have to decide on the competing interests of the claimant and judgment creditor.

The Applicable Law

The law relating to interpleader proceedings is settled.

A claimant must set out facts and allegations which constitute proof of ownership. The party objecting to execution must prove, on balance of probabilities, that the property is his or hers: see Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R)…,. The onus is on the claimant to prove ownership of the property claimed: see Deputy Sheriff, Marondera v Travese (Pvt) Ltd & Anor HH11-03.

As already indicated above, the property to which the claimant lays a claim is registered in the name of the judgment debtor. This raises a presumption that such property belongs to the person (juristic or otherwise) who has title to it.

The position was put this way by DE VILLIERS CJ in Zandberg v Van Zyl 1910 AD 258…,:

“…, possession of a movable raises a presumption of ownership; and that therefore a claimant, in her inter pleader suit claiming the ownership on the ground that he has bought such a movable from a person whom he has allowed to retain possession of it must rebut that presumption by clear and satisfactory evidence.”

In casu, the judgement debtor has title to the property. It is indeed immovable property.

However, I propose to equate possession in the case of movable goods to title in respect of immovable property.

To the extent that possession and title raise a rebuttable presumption of ownership, the principle in Zandberg v Van Zyl 1910 AD 258 equally applies to immovable property.

The starting point is to examine the legal implication of title.

Title confers real rights in immovable property. It cannot be gainsaid that a title deed is prima facie proof that a person enjoys real rights over the immovable property defined in the deed.

In Fryes (Pvt) Ltd v Ries 1957 (3) SA 575…, the court held that:

“Indeed, the system of land registration was evolved for the very purpose of ensuring, that, there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.”

The same legal position obtains in this jurisdiction.

In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, McNALLY JA had this to say:

“The registration of rights in immovable property, in terms of the Deeds and Registries Act [Chapter 139] (now [Chapter 20:05]), is not a mere form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

See also Chapeyama v Chapeyama 2000 (2) ZLR 175 (S).

Of further relevance to transfer of title in immovable property is section 30A of the Capital Gains Tax Act [Chapter 23:01] which reads:

“30A Capital gains tax not withheld in terms of Part IIIA to be paid before transfer of specified asset

(1) No registration of the acquisition of a specified asset in respect of which capital gains tax is not withheld in terms of Part IIIA shall be executed, attested, or registered by —

(a) The Registrar of Deeds in terms of the Deeds Registries Act [Chapter 20:05];

(b) The person responsible for registering the transfer of shares of any company registered or incorporated in terms of the Companies Act [Chapter 24:03];
unless there is submitted to the Registrar of Deeds, or the person concerned, by either of the parties or their agents concerned in the transaction, a certificate issued by the Zimbabwe Revenue Authority stating that any capital gains tax payable on the acquisition of the specified asset has been paid.”

The essence of the above provision is that the process of transfer is/has not yet been completed.

Thus, on a proper construction of section 14 of the Deeds Registries Act and section 30A of the Capital Gains Act, acquisition of ownership in land immovable is registration.

Applying the law to the facts

To substantiate his claim, the claimant produced an agreement of sale signed between him and the judgment debtor.

On the basis of the authorities mentioned above, the legal effect of registration of title in the judgment debtor's name is evident. Title in the property remains in the judgement debtor. Such title can only be legally divested upon transfer to the claimant or a third party, whereupon, the transferee would acquire real rights to the property.

As things stand, the agreement, without the process of transfer through the Deeds Registries Act, only vests personal rights in the claimant.

The legal reality was spelt by the court in Fischer v Ubomi Ushishi Trading & Ors 2019 (2) SA 117 (SCA)…, in the following terms:

“That agreement, though binding on the contracting parties, did not, by itself, vest ownership of Mr Haynes half share in the property in Mrs Haynes, any more than a contract of sale of land passes ownership to the buyer. It follows that Middleton [2010 (1) SA 179 (D)] was correctly decided. The vesting of ownership of the property in Mrs Haynes required an act of transfer by way of an endorsement on the title deed of the property in terms of section 45 bis (1)(a) of the Deeds Registries Act.”

That said, I have already acknowledged, that, there is a rebuttable presumption, that, if property is in the name of someone, that person is presumed to be the owner of that property.

Since the claimant has alleged that he is the owner of the attached house, he bears the onus to prove, on a balance of probabilities, that he is the owner.

I have to decide whether that onus has been discharged. Put differently, the issue for determination is whether or not the claimant has set out facts and allegations which constitute proof of ownership.

It is important to note, that, these interpleader proceedings were triggered by the attempt to execute this court's judgment in HC11601/17.

As title is still in the judgment debtor's name, prima facie, the property can be sold in execution of the judgment obtained by the judgment creditor in HC11601/17.

The claimant relied on CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) for the proposition that a Deed of Transfer is prima facie proof of ownership.

Developing on this argument, he submitted, that, the registration of the property in the name of the judgment debtor did not affect his claim to ownership arising from the Agreement of Sale. He further argued, that, on the authority of that case, the property should not be declared executable.

One should not latch onto a legal principle from one case and apply it to another without considering the factual context of each case.

In this respect, it is worth recalling, that, in Bariadale Investments (Pvt) Ltd v Puwayi Chiutsi & Ors HH842-19, CHITAPI J aptly noted:

“I do accept the general rule and the general approach of the court but would caution that a case authority is only binding or persuasive if the ratio decidendi sought to be invoked pertains to a factual scenario which is similar to the case under determination because every case is determined on its own peculiar facts and circumstance.”

The decision in CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) turned on its facts.

The evidence showed, that, title had not been effected due to circumstances beyond the purchaser's control, after he had done everything expected of him to effect transfer.

The brief facts are that Mr Moyo purchased and paid the full purchase price for the property in August 2010. He acted promptly to secure registration of title by paying the transfer fees and obtaining tax and rates clearance certificates. He took occupation three (3) months after the date of payment of the purchase price, in Novemebr 2010, in terms of the sale agreement. The transfer could not be registered because a creditor of one of the sellers had registered a caveat on the title deeds of the property. The caveat was registered after Mr Moyo was already in possession of the property and a day before his transfer papers were filed in the Deeds Registry.

In casu, the factual scenario is not comparable.

The telling question to ask is: since the agreement of sale was signed in 2013, why was transfer not effected by the time of execution in 2018?

Counsel for the claimant initially explained, that, the claimant had applied for registration of title in terms of the Titles Registration and Derelict Land Act. However, when asked by the court if ownership could be obtained that way, counsel conceded the futility of the application.

The record shows, that, when that application was opposed, it was never prosecuted.

Despite the propriety of the application being challenged, the claimant took no steps to seek an order compelling the judgment debtor to transfer the property to him.

It must be borne in mind, that, proceedings under HC11367/15, for the judgment debtor to effect transfer, preceded those under HC5642/15 purportedly in terms of the Titles Registration and Derelict Lands Act.

Counsel for the claimant argued, that, the lawsuit in HC11367/17 was resolved by a Deed of Settlement signed on 12 December 2017.

It is relevant to mention, that, the sale was concluded on 15 November 2013; and, if we go by the receipts attached to the claimant's papers, the purchase price was fully paid in July 2015. Yet, nothing was done to obtain transfer from November 2013 till 2017 when summons was issued.

Also amazing is that the capital gains tax assessment was done on 16 July 2020 for Mr Munyama, and only done on 20 March 2020 for Mr Munyama had been assessed 2 years earlier on 16 July 2018.

Clearly, no plausible explanation has been given for such a lackadaisical approach to enforcing one's rights.

It seems the claimant would have contentedly sat on his laurels were it not for the inter-pleader proceedings. I say this because, quite apart from the casualness outlined above, nothing had still not been by the time the writ of execution was issued on 8 March 2018 and the attachment done on 22 May 2018.

It was not until 10 September 2019 that interpleader proceedings were commenced.

I have to decide whether the claimant has discharged the onus on him to establish his claim to the property.

For the property to be spared from execution, the court must find that “special circumstances” exist.

That was the decision made in CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) which defined special circumstances as follows:

“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.”

Based on the papers before me, and the disconcerting chronology of events in this matter, I am loathe to accept that the claimant acted in a manner consistent with someone who proceeded with swiftness but failed to obtain transfer through no fault of his own.

The promptness with which Mr Moyo acted in CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) was certainly not mirrored in casu.

Lest this view is taken as unfair, I must state, that, the claimant was legally represented in all the proceedings he brought before this court. Given that he was acting advisedly, the clumsiness evident from the way the issue of transfer was dealt with is both inexplicable and inexcusable.

Once full compliance with the terms of the agreement of sale had been made, transfer should have been sought immediately.

Even after deciding to deploy another option, what boggles the mind is: why prompt action was not taken to obtain redress as soon as the claimant and/or his lawyers knew that the Titles Registration and Derelict Lands Act route was a cul de sac.

Conclusion

At the end of argument, I came to the view, that, not enough evidence has been adduced to prove, on a balance of probabilities, that the attached immovable property belongs to the claimant and not to the judgement debtor. Nor was I satisfied that the claimant had established special circumstances warranting me to declare the property not executable.

The claim was, accordingly, dismissed.

Although the judgment creditor sought costs on an attorney and client scale, I was not satisfied that any conduct on the part of the claimant justified such costs. Costs being in the discretion of the court, in the exercise of that discretion, I decided against awarding punitive costs.

Disposition

It is as a result of the foregoing that I made the following order:

1. The claimant's claim to the property which is listed on the Notice of Seizure and Attachment dated 22 May 2018, which were placed under attachment in execution of the order in Case No HC11601 be and is hereby dismissed.

2. The above mentioned property, attached in terms of the Notice of Seizure and Attachment dated 22 May 2018, be and is hereby declared executable.

3. The claimant shall pay the judgment creditor's and the applicant's costs.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

JUSTIFICATIONThe HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:“9. Two are better than one; because they have a good reward for their labour.10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for ...

JUSTIFICATION

The HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:

“9. Two are better than one; because they have a good reward for their labour.

10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for he has not another to help him up.

11. Again, if two lie together, then they have heat: but how can one be warm alone?

12. And, if one prevail against him, two shall withstand him; and a threefold cord is not quickly broken.”

I therefore refer to a number of legal sources as well as illustrations in determining this inter pleader application.

CLAIMANT BEARS THE ONUS TO PROVE THAT THE ATTACHED PROPERTY BELONGS TO IT AND MUST DISCHARGE THAT ONUS ON A BALANCE OF PROBABILITIES

In Sabarauta v Local Authorities Pension Fund and the Sheriff SC77-17, UCHENA JA, writing for the Zimbabwe Supreme Court, said:

“Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property. In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence.”

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J puts it thus…,:

“One common thread running through such cases, and several others on the point, is that there is a rebuttable presumption that where someone is found in possession of movable goods, they are presumed to be the owner of that property.

Where someone else other than the possessor claims to be the owner of those goods, they have the onus to prove, on a balance of probabilities, that they are the owner. There are no hard and fast rules on how they may go about proving such ownership. Every case depends on its own facts. The claimant may have to produce some evidence, such as receipts or other documents, if available, to prove ownership. A bald assertion that they are the owner is not enough.”…,.

The facts of each matter ultimately resolves the question whether clear and satisfactory evidence has been tendered by a claimant to satisfy the court, that, on a balance of probabilities, the property attached belongs to the claimant. The road to proving ownership is not a one way street.

WHERE THE CLAIMANT HAS PRODUCED SUFFICIENT EVIDENCE TO CONSTITUTE PRIMA FACIE PROOF OF OWNERSHIP THE ONUS SHIFTS TO THE JUDGMENT CREDITOR TO DISPROVE SAME BY PRODUCING EVIDENCE TO THE CONTRARY

The claimant does not need, at this stage, to prove, on a balance of probabilities, that the attached property belongs to it. All that is required of it is to show, on the face of it, that the property probably belongs to it.

That is what prima facie proof means in civil cases.

The onus then shifts to the judgment creditor to disprove the claimant's prima facie evidence of ownership by producing its own evidence to the contrary.

If the contrary evidence satisfies the court, the claim fails and execution proceeds. The converse is true.

The judgment creditor cannot successfully disprove the claimant's prima facie evidence of ownership by making unsubstantiated assertions in its own opposing affidavit. Neither can it do so through composing heads of argument based on the bare assertions in the opposing affidavit.

It follows also that argument at the hearing of the inter pleader application is no substitute for a judgment creditor's failure to produce contrary evidence to disprove the claimant's prima facie evidence of ownership of the attached goods.

If the judgment creditor cannot disprove the claimant's prima facie evidence of ownership, the result is this: What was prima facie evidence of ownership is transformed into proof on a balance of probabilities. The attached goods are then declared not executable and their release from attachment ensues.

This procedure has a parallel in Criminal Law.

If the State establishes a prima facie case against an accused who then opens and closes his defence case without without leading any evidence at all that person will be convicted. The conviction is not based on the prima facie case. It is no longer that. It has graduated to become proof beyond a reasonable doubt for want of any competing evidence.

In (1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18 PATEL JA, with whom MALABA CJ and HLATSHWAYO JA concurred, said…,:

“In a bid to prove its ownership of the assets, the first appellant produced statements of account for Mbada Mine which showed that some payments, but not all, had been made by Mbada Mine. In addition, both appellants produced detailed agreements concluded with Mbada Mine (on 15 July 2012 and 22 July 2015), respectively, which stipulated that ownership of the assets would remain with the appellants until the full purchase price was paid. It was the court a quo's finding that the agreements were not authentic and that there was collusion between the appellants and Mbada Mine.

It was alleged, by the second respondent, that, the agreements were doctored by Mbada Mine and the appellants ex post facto and that there was no paper trail to show that the assets belonged to the appellants.

However, no evidence was led to substantiate the second respondent's allegations of collusion.

The court relied on the bald averment by the second respondent that the documents were not authentic and simply took that to be correct.

It is the second respondent that levelled allegations of inauthenticity and collusion. Consequently, it is the second respondent that should have proven the same.

This position was succinctly captured in the case of Circle Tracking v Mahachi SC4-07, where the court held that the principle that he who alleges must prove is a basic concept of our law.

No evidence was adduced by the second respondent to substantiate the alleged inauthenticity of the agreements.

The appellants produced documents which show that the assets had been procured by them and initially belonged to them. They also produced the agreements concluded with Mbada Mine in 2012 and 2015 which show that ownership was reserved in favour of the appellants until the full purchase price was paid. The relevant provisions are contained in clauses 4.3 and 11.6 of the first appellant's agreement and clause 7.7 of the second appellant's agreement.

The second respondent alleged that the documents supporting the appellants' claims were a recent fabrication meant to frustrate the execution of the assets, but, the dates when the agreements were concluded reveal that they were executed well before the second respondent instituted any legal proceedings in this matter. There is also nothing in the record to give credence to the allegations that the documents were fabricated by the appellants in collusion with Mbada Mine. It is my view, therefore, in the absence of any evidence to the contrary, that the agreements are genuine and that their provisions and the agreed compacts contained therein must be accepted as being authentic, as well as commercially and legally cognizable.”

This court's decision in the Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18 underscores this point. There, MAKONESE J expressed it in these words…,:

“The claimant refuted the allegations that the property belonged to the judgment debtor, and, in a bid to prove ownership of the attached property, the claimant attached some receipts and agreements of sale as proof of the attached assets. An agreement of sale is taken as prima facie proof of ownership. Where a claimant tenders some acceptable proof of ownership the onus must necessarily shift to the judgment creditor disproving the claimant's ownership of the attached goods.”

Similarly, CHITAPI J explained in The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18…,:

“In my view, this claimant's claim is not far fetched. The claimant did not just attach the registration book as proof of legal ownership. He attached the official motor vehicle extract from Central Vehicle Registry. It gives details of the importation of the vehicle by the claimant and proof of payment of import duty and police clearances. In such a situation, the onus to prove that the third claimant is not the owner of the vehicle must shift to the judgment creditor. Where the claimant places before the court acceptable evidence of ownership or of some other legally recognizable ground warranting release of the attached property from execution, the onus shifts on the party who impugns such evidence to controvert it.”...,.

THE FACTS

The judgment creditors were employees of Amble Mining (Private) Limited. The latter traded as Amble Mine.

On 24 May 2010, an Independent Arbitrator granted an award ordering the Mine to reinstate the 99 employees with effect from March 2006 without loss of salary and benefits. As an alternative, the Mine was to pay them certain sums for back pay, damages for loss of employment, punitive damages, housing allowance, cash in lieu of leave and cash in lieu of notice. The total amount was US$1,199,251=88.

The date when the matter was referred to the Arbitrator is not disclosed in the papers. Also kept under wraps is the history of the labour matter leading up to the award.

Amble Mining (Pvt) Ltd is the judgment debtor.

On 28 June 2017, the employees filed a court application for registration of the arbitral award. The application to register the award as an order of this court was granted, unopposed, on 16 August 2017.

A Writ of Execution Against Movable Property must have been issued. I have not seen it. What I have perused, both in the court record relating to registration of the arbitral award and the present matter is a Writ of Execution against immovable property. It was issued on 18 June 2018. In the writ is a statement speaking to a nulla bona return of service. The nulla bona return of service was not placed before me. I do not know when it was issued. I am also in the dark as to where the Sheriff had sought to effect the attachment.

However, as regards the immovable property, the Sheriff was instructed to attach and execute what was said to be the judgment debtor's property being a certain chrome mine comprising of:

(i) The mining claim, being a block of 25 mining claims known as BEE 47 registered as No. G310 BM.

(ii) 110 compound houses.

(iii) 1 x shop.

(iv) 6 x round thatched guest houses tiled/geyser.

(v) 3 separate guest houses.

(vi) Workshop.

This was to realize the sum of US$1,199,252=99 which was the alternative remedy to reinstatement.

On 26 June 2018 the Sheriff wrote to the Provincial Mining Director, Mashonaland West Province attaching the mining claim in question together with everything else listed on the writ of execution against immovable property.

Gurta AG is the claimant. It is a company incorporated in terms of the laws of Switzerland. It is therefore a peregrinus. It has paid security for costs.

Gurta AG filed an affidavit with the Sheriff claiming ownership of all the attached property. The affidavit was deposed to by Carlo Ghezzi. He is a Board member and Chairman of the claimant.

The claimant admits that the mining claim used to belong to the judgment debtor. However, the claimant purchased the same sometime in 2009 and took transfer the same year.

In an endeavor to prove its claim, Gurta AG annexed certain documents to the affidavit delivered to the Sheriff.

Those documents are copies each of the certificate of registration of the mining claim after transfer; a Board Resolution of Maranatha Ferro Chrome (Pvt) Ltd, signed by the chairman and secretary on 15 October 2009, reflecting that the Board agreed, on 13 October 2009, to sell all its mining claims as well as those of its subsidiary, Amble Mining (Pvt) Ltd, to Gurta AG for US$1,350,000; an unsigned document on Maranatha Ferrochrome's letterhead said to be an invoice relating to the Sale and a Lease Agreement on Maranatha Ferrochrome's letterhead, dated 9 September 2015, in terms whereof Joseph Wirima rented one of the rooms at the mining claim for a period of 3 months running from 1 September 2015 to 30 November 2015 at a rental of US$25 per month.

The judgment creditors rejected the claim.

This led to the Sheriff instituting these inter-pleader proceedings.

The claimant, in a bid to prove its claim before this court, again filed an affidavit by the same deponent. It annexed thereto copies of the same documents as previously laid before the Sheriff. This time, it attached also copies of two letters written by the Acting Provincial Mining Director Mashonaland West on behalf of the Secretary for Mines and Mining Development. The letters are dated 5 July 2018. One was addressed to the judgment creditor's then legal practitioners, Citizens Legal Society and Advisory Trust. The other was addressed to the Sheriff's office.

In both letters, the Ministry of Mines and Mining Development, through the author, set the record straight by advising that the mining claim in question belongs to the claimant as evidenced by records reflecting transfer as having been effected to Gurta AG on 26 October 2009.

The author apologized to both addressees for a mistake which had been made in an earlier letter to Citizens Legal Society and Advisory Trust on 31 May 2018 which stated that the mining claims, and two other claims, belonged to the judgment debtor.

THE JUDGMENT CREDITORS' POSITION

Besides the letter of 31 May 2018 from the Ministry of Mines and Mining Development (which was superseded by the letters of 5 July 2018 from the same Ministry) the judgment creditors did not produce any evidence to contradict that tendered by the claimant.

They alleged collusion between the Acting Provincial Mining Director, Mashonaland West, the claimant, the judgment debtor, and Maranatha Ferrochrome (Pvt) Ltd to cook up the documentary evidence which the claimant placed before me.

I was told that there was therefore no sale of the mining claim in question to the claimant because all the documents speaking to such sale and transfer of the claim were fabricated.

The judgment creditors, in opposing papers, heads of argument, supplementary heads of argument, and oral argument at the hearing said this:

No paper trail leading up to transfer of the mining claim to the claimant had been put before me. There was therefore neither sale nor transfer of the mining claim in favour of Gurta AG. The claim was still registered in the name of the judgment debtor and therefore executable.

The argument was premised upon section 275 of the Mines and Minerals Act [Chapter 21:05] which reads in relevant part:

“275 Registration of transfer of mining locations and transfer duty payable

1. When any registered mining location or any interest therein is sold or otherwise alienated in any manner whatsoever, the seller or person who so alienates shall notify the mining commissioner of the transaction within sixty days of the date of such transaction, and shall inform him of the name of the person to whom such location or interest is sold or otherwise alienated and of the amount of the valuable consideration, if any, agreed upon and the date of the transaction.

2. When any registered mining location, or any interest therein, has been sold or otherwise alienated, whether before or after the first November, 1961, in any manner whatsoever, for valuable consideration, transfer duty at the rate fixed by Parliament shall be paid by the purchaser, which terms shall include any person becoming entitled to such location or interest therein by way of sale, exchange or other like transaction;

1….,.

2….,.

3….,.

4. Subject to this Act, any person entitled to be registered as the holder of a registered mining location, or any interest therein, shall make application to the mining commissioner for the transfer of such location or interest, and every such application shall be in writing and signed by or on behalf of the applicant, and shall be accompanied by the following particulars -

(a) The last issued certificate of registration or of special registration of the location or the holder's copy of the mining lease, as the case may be;

(b) Certificates by the transferor and transferee in the prescribed form;

(c) A duplicate original grosse or notarially certified copy of any and every existing written agreement affecting or bearing upon the sale, alienation, exchange or transfer;

(d) In the event of there being no such existing written agreement, certificates by the transferor and transferee to that effect;

(e) The original or notarially certified copy of any power of attorney which may be required to authorize an agent to act on behalf of any party to the transfer; if the original power is lodged with the mining commissioner and the applicant does not wish the mining commissioner to retain it, he shall furnish with it a copy which the mining commissioner shall compare with the original, certify to be a true copy and retain;

(f) If such application is in respect of the transfer of any mining location registered for precious stones or any interest therein, a certificate from the secretary that the Minister has granted the permission required under section two hundred and eighty two in respect of such transfer.

5. The mining commissioner shall, on receipt of such application and other documents, and of the transfer duty or, if no such duty is or may in the future be payable or the whole of such duty has been remitted under subsection (9) of the prescribed fee, and if he is satisfied that the other provisions of this Act have been complied with, register transfer by making the necessary entries in his registers and other records: Provided that -

(i) No transfer, as aforesaid, shall be valid unless it has been registered by the mining commissioner, and no such registration shall be made -

(a) Where such location is liable for forfeiture or under attachment;

(b) Until dues, fees, royalties, rents or other moneys due and payable to the mining commissioner under this Act in respect of the property to be transferred have been paid;

(c)…,.

(d) Where the transferee is not a permanent resident of Zimbabwe, unless the mining commissioner, after consultation with the Reserve Bank of Zimbabwe, is satisfied that all requirements imposed by or under the Exchange Control Act [Chapter 22:05] have been complied with;

(i)…,.

(ii)…,.

(8) The mining commissioner shall also, on receipt of the prescribed fee, issue to the transferee a certificate in the form prescribed and such certificate shall record the interest of the transferor, whether whole or otherwise, in such block.”

The judgment creditor's alternative argument was this:

Should I find that there was a sale then I should pierce the corporate veil on two grounds:

(i) Gurta AG, Amble Mining (Pvt) Ltd, and Maranatha Ferrochrome (Pvt) Ltd were companies in the same Group. The first two were subsidiaries of the third. Therefore, the sale was between subsidiary companies.

(ii) Secondly, there was fraud involved because the sale and transfer of the mining claim were designed to defeat the judgment creditors' entitlement to attach the mining claim by taking it out of the judgment debtor's hands.

THE ANALYSIS

I am satisfied that the claimant established, prima facie, that the mining claim belongs to it. The precise legal position is that the holder of a mining claim has the right to work such claim to the exclusion of everyone else.

The totality of the documentary evidence tendered by the claimant satisfies me in this regard.

It is true that the date stamp on the copy of the certificate of registration on record is not legible to the extent that the day and month of registration of the transfer is not visible. But the year of registration of that transfer is reflected on the document as being 2009. The two letters from the Ministry of Mines and Mining Development, dated 5 July 2018, clearly state the date of registration of the transfer as 26 October 2009. So, the letters cure the deficiency appearing on the copy of the certificate in question.

What I have is a copy of the certificate, not the original.

The transfer number for the certificate in question is given in the letter which was addressed to Citizens Legal Society and Advisory Trust. It is TR 6627. That is the transfer number appearing on the copy of the Certificate of Registration after transfer tendered by the claimant. When issuing a duplicate original Certificate of Registration to a holder, the office of the Mining Commissioner obviously retains the original on file.

The Certificate of Registration is documentary evidence issued and signed by the Mining Commissioner in Harare. The letters of 5 July 2018 are pieces of documentary evidence authored by the Acting Provincial Mining Director, Mashonaland West in Chinhoyi. All three documents confirm that the claimant is the registered holder of the claim in question since 2009.

No contrary evidence was led by the judgment creditors to demonstrate that the certificate of registration was cancelled by the Mining Commissioner for whatever reason or disowned by him as being inauthentic or that the letters of 5 July 2018 contain falsehoods.

This court is not the Mining Commissioner. This court does not issue certificates of registration of mining claims. The person who must be satisfied that section 275 of the of the Mines and Minerals Act has been complied with is the Mining Commissioner. It is him, and not myself, who is under obligation to receive, peruse, and be satisfied with the documentation required before he issues a certificate of registration.

No evidence was placed before me, by the judgment creditor, to demonstrate that the certificate of registration in question was issued outside the statutory requirements.

The judgment creditor's criticism of the Board resolution to sell the mining claim to the claimant, the invoice, and the lease agreement, cannot be evidence tendered by the judgment creditor disproving the authenticity of the sale and transfer.

The courts have accepted that business persons often record their dealings in terms which perfectly make sense to them but are often wanting in clarity to the legal mind. One must therefore read commercial documents sensibly. A mere reading of a commercial document, standing alone, may not make much sense because the context of its making may not appear within the four (4) corners of the document.

This is how I have looked at the invoice, the lease agreement, and the Board resolution.

For example, the lease agreement entered into on 9 September 2015, at Ngezi Mining Area, with the tenant, Joseph Wirima, is recorded as:

“A Settlement Agreement was negotiated between Upthrow Trading (Pvt) Ltd, Maranatha Ferro Chrome (Pvt) Ltd, Amble Mining (Pvt) Ltd, Gurta AG, Glossy Investment (Pvt) Ltd and Honourable Paul Mangwana and signed in Italy on 3 October 2013. In terms of this Settlement Agreement, following the completion of the handover of the mining claims, Maranatha Ferro Chrome (Pvt) Ltd, representing Gurta AG who are the legitimate owners of the mining claims in Ngezi, do hereby offer the Lease Agreement/Arrangement for the property known as: WHITE HOUSE ROOM 3…,.”

The judgment creditor led no evidence from Joseph Wirima (the tenant), C Mutema (the witness to the lease agreement), Upthrow Trading (Pvt) Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana.

In respect of Joseph Wirima and C Mutema, there was no evidence that the lease agreement between the former and the claimant, represented by Maranatha Ferro Chrome (Pvt) Ltd, was inauthentic and not entered into on 9 September 2015 but after the attachment of the mining claim on 27 June 2018 - almost 3 years later.

Similarly, the judgment creditor adduced no evidence from Upthrow Trading (Pvt) Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana on the nature of the Settlement Agreement between these companies, Paul Mangwana, the judgment debtor, and the claimant.

(1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18, Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18, and The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18 are clear that where the claimant has made out a prima facie case that it is the owner of the attached goods the onus shifts to the judgment creditor to controvert such evidence.

Evidence can only be controverted by other evidence, not through heads of argument or oral submissions - the sole purpose of which is to endeavour to punch holes into a case which is already prima facie established.

The sale and transfer of the mining claim occurred in 2009.

This arbitral award was not yet in existence. Accordingly, there was no basis for the judgment creditor's assertions of fraudulent conduct and collusion between the claimant, the judgment debtor, and Maranatha Ferro Chrome (Pvt) Ltd.

There was no execution to defeat at the time of sale and transfer of the mining claims.

It was not even disclosed by the judgment creditor when it is that litigation in their labour case with the judgment debtor was instituted: see S v Stead 1991 (2) ZLR 54 (S); Mkombachoto v Commercial Bank of Zimbabwe Ltd and Another 2002 (1) ZLR 21 (H).

Still, on lifting the corporate petticoat of Gurta and peering behind it, I see no other exceptional circumstance justifying the same.

The judgment creditor told me, both in heads of argument and at the hearing, that, Maranatha Ferro Chrome (Pvt) Ltd, the judgment debtor, and the claimant are a single economic entity. I was therefore invited to go behind the claimant's skirt, disregard the three companies' separate corporate personalities and order execution of the mining claim, even though registered in the claimant's name, to satisfy the judgment debt owed by Amble Mining (Pvt) Ltd.

Counsel for the judgment creditor referred me to Deputy Sheriff Harare v Trinpac Investments (Pvt) Ltd and Anor HH121-11.

That case is distinguishable.

Here, there is no evidence at all as to who the shareholders of the claimant are. There is completely no evidence to prove that they are the same persons as the shareholders of the judgment debtor and its holding company, Maranatha Ferro Chrome (Pvt) Ltd. Neither is there any evidence that the directorship of the claimant is the same as that of the other two companies.

The bare allegation that the claimant is a 'baby' of the “Ghezzi family” was not substantiated. I therefore refuse to interfere with the claimant's corporate regalia: see Sibanda v JLF (Pvt) Ltd & Anor SC117-04.

HAS CLAIMANT PROVED ITS CASE ON A BALANCE OF PROBABILITIES?

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J stated that there are no hard and fast rules on how a claimant goes about proving ownership of attached goods.

I fully subscribe to that view.

Examples abound, both at law and in life experiences. It is not every case where ownership is proved through production of receipts and agreements of sale. Also, in encouraging pupils to think outside the box, teachers would sometimes say, even after John had answered a question:

“Yes, there are many ways of killing a cat, Mary what is the answer?”

The route does not always matter. What is important is a safe journey.

For example, it is a fact notorious for judicial notice to be taken of that people in most African countries would, if travelling by air, have to board a plane to London or Paris first before connecting to a flight back to their African destinations. That does not make London or Paris the destination.

Olivia Charamba and The Fishers of Men realised this when they sang:

“Kana uchienda
Uchienda
Kwaunoda
Kwaunoda
Kune nzira
Kune nzira
Dzakawanda
Dzakawanda
…,..
Nzira dzekuenda kuGweru:
Kune Kadoma;
Chivhumudhara;
…,.”

These Shona lyrics simply mean that a traveller has a choice on the route to take to a destination. The gospel musician and her band then gave the example of the availability of two options when travelling to the Midlands Province city of Gweru: either through the Mashonaland West town of Kadoma or through the Mashonaland East town of Chivhu (also called “Chivhumudhara” or “The Republic of Enkeldorn”).

The judgment creditors were rigid.

They were of the view that ownership could only be proven by the claimant producing the documentation listed in section 275 of the Mines and Minerals Act [Chapter 21:05]. That was too narrow a view of the matter.

They appear not to have been alive to the law relating to shifting of the onus as laid down by the Supreme Court and applied in numerous decisions of this court. The result is that they did not realize that they had no defence to the claim right from the word go.

Full instructions appear not to have been taken and exhaustive legal research seems not to have been conducted by their legal practitioners.

On perusal of the claimant's initial affidavit and annexures laying claim to the property, the legal practitioners should have gone to the office of the Mining Commissioner in Harare to peruse the Ministry of Mines and Mining Development's file relating to the claim in question rather than being content in seeing permanent and unshifting onus on the shoulders of a party who did not bear the same.

The legal practitioners should thereafter have fully researched on the law relating to interpleader matters.

The law on interpleader claims is simple and readily available both in the textbooks and decided cases of the Supreme Court and this court. In the course of this judgment, I referred to some of those decisions. I also referred to the words of wisdom from two legal practitioners: the first an academic and the other one of the finest court lawyers that this nation has produced.

My view is that the two sets of legal practitioners who represented the judgment creditor in this matter, at different stages, should clearly have done better.

COSTS

The claim should never have been opposed. At the very least, the judgment creditor's legal practitioners should have gathered sufficient facts and evidence, both oral and documentary, for purposes of properly advising their clients.

I add that considering that the judgment creditors were a staggering 99 persons, the importance of the matter, its effect on them, and the monetary value of the arbitral award, a thorough job needed to be done to advance their interests rather than exposing them to further unwarranted financial prejudice in the form of legal fees and costs. If properly advised, the judgment creditors may not have opposed this claim.

It is for these reasons that I exercise my discretion on costs. I do not order punitive costs. The fault in defending the claim, as I have found, lies elsewhere.

ORDER

In the result, the following order shall issue:

1. The claimant's claim to all the immovable property which was placed under attachment in execution of judgment in HC5852/17 be and is hereby granted.

2. All the mining claims attached in terms of the letter written to the Provincial Mining Director, Mashonaland West, dated 26 June 2018, are declared not executable.

3. The judgment creditors shall jointly and severally, the one paying the others to be absolved, pay the claimant and the applicant's costs of suit.

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE
Ruled By: TSANGA J

This was an application for an interpleader lodged by the Deputy Sherriff of Karoi against Edward Chigango 55 others as first respondents and judgment creditors. Fresh Bakery, Karoi were second respondents and judgment debtors. David Govere was the third respondent and claimant.The order I granted in this matter ...

This was an application for an interpleader lodged by the Deputy Sherriff of Karoi against Edward Chigango & 55 others as first respondents and judgment creditors. Fresh Bakery, Karoi were second respondents and judgment debtors. David Govere was the third respondent and claimant.

The order I granted in this matter on 1 November was as follows:

“1. The application by the Deputy Sheriff Karoi to amend the citation of David Govere who is already duly authorised to represent Noxon Investments, as Director, with the citation of Noxon Investments (Pvt) Ltd, as 3^rd Respondents is granted.

2. The claimant's claim, Noxon Investments (Pvt) Ltd to the goods placed under attachment in execution of Judgment Case No.HC6273/10 is hereby dismissed.

3. The goods set out in the Notice of Seizure and Attachment, dated 26 October 2011, issued by Applicant are declared executable.

4. The claimant is ordered to pay the costs of the Judgement Creditor and Applicant.”

My reasons for the above order were as follows: …,.

With regards to dismissing the third respondent's claim to the goods, i.e. Noxon Investments (Pvt) Ltd, once the application was granted, the evidence produced in the papers filed of record, failed, in my view, to support the claim on a balance of probabilities. The third respondent asserted its claim on the strength of an Agreement of Sale of both business and assets, which it averred supported its stance that it had been sold the Bakery and all its equipment by Aroma Bakeries in 2000. The Agreement attached detailed the effective date of the sale as being 1 July 2000. The property described 15 Fred Jameson Road, Karoi, the address of the second respondent - the judgement debtor.

The first respondents challenged the authenticity of this claim through an attachment of a judgment of this court passed by CHITAKUNYE J in HC5863/05 on 9 September 2009. This judgement, involving the very same premises i.e. Stand No.15 Karoi Township reveals that the owners of the property in that case were, in fact, Karoi Cash Bakery. They were suing Aroma Bakeries to whom they had leased the property for a nine year period, starting in February 1997, for breach of lease in that they had sublet the premises to Harambe Holdings. The premises had not been kept in good condition and the application was against both Aroma bakeries and Harambe Holdings to repair the premises to the condition they were before 1997. If Aroma Bakeries was being sued as lessee well after 2000, in terms of a lease agreement operational over a nine year period entered into in 1997, it is hard to see how it could have been the owner of the premises in 2000 when it is alleged to have sold the premises to Noxon Investments (Pvt) Ltd.

As such, the first respondent's claim that the Sale Agreement may not have been authentic seemed to have merit in light of this judgement.

Also, as was argued by counsel, on behalf of the judgment creditors, the issue of assets not belonging to the judgment debtor was only raised when execution was imminent. It was also his averment that when the matter was still in the labour forum, the judgment debtor filed for a stay of execution of the award on the basis that the figures calculated were wrong. There was no averment then that it did not own the property.

View Appeal
HH259-17 : THE SHERIFF OF THE HIGH COURT vs GENET MINING (PROPRIETARY) LIMITED and PUNGWE MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

On 8 April 2016, and pursuant to a writ of execution against movable property issued out of this court, under case number HC3964/15, in the matter between the judgment creditor and Mbada Diamonds (Pvt) Ltd (“Mbada Diamonds”), the applicant attended at 124 Ventersburg Area, Msasa, Harare and placed under judicial attachment an assortment of heavy duty earth-moving equipment comprising, among other items, 1 x Bomag BW 2/12D-40 Roller; 2 x XY Drill Rigs; 1 x Volvo 150 KVA/TAD 720 GE containerised Generator; 2 x 6m container packed with a variety of items.

The claimant lays claim on the property averring that the property cannot be sold in execution to satisfy Mbada Diamonds (Pvt) Ltd debts. The Claimant alleges that between September 2011 and December 2014 Smit Investment Holdings SA (Pvt) Ltd trading as Gecko Projects intermittently rendered contract mining and beneficiation services to Mbada Diamonds (Pvt) Ltd at its mining site near Mutare. In order to meet its contractual obligations, Gecko Projects engaged the services of a number of sub-contractors to assist it. Amongst those sub-contractors was the Claimant who was engaged by Gecko Projects to render drilling and mining services. Gecko Projects, which then was known as Gecko Mining (Pty) Ltd, changed its name to Genet Mining (Pty) Ltd in SA.

For the purposes of undertaking drilling and mining services at the Mbada Diamonds Mine, the claimant had to export, to Zimbabwe, various items of machinery from South Africa on a temporary basis. The claimant produced and attached to its papers export documentation in respect of the property in the form of;

(a) Commercial invoices;

(b) South African Customs declaration forms;

(d) Photographs of the machinery;

(e) Road Freight Manifest.

These documents are dated between October 2011 and March 2012.

The claimant states that because each sub-contractor had to supply its employees with the necessary cookery, cutlery, and appliances required, these were stashed in the container referred to in Annexure “A”. The claimant could not, however, produce the export documentation for the items listed in Annexure “A”.

As to the place where the Notice of Attachment was executed, the claimant makes the following averments;

Although the Notice reflects that it was executed at the judgment debtor's place of business, this is not true. These goods were kept at premises leased to a Mr Shane Roberts by one Mr J. Makwavarara of 9 Pringle Road, Greendale, Harare. Mr Roberts consented to the storage of property at the premises he leases pending an application to the relevant Zimbabwean authorities for the repatriation of the assets to South Africa. In the event, therefore, at the time of attachment by the applicant, the property was in the possession and under the control of the claimant.

In opposition to the claimant's claims over the property, the judgment creditor vehemently disputes the claiming of ownership.

In respect of the documents attached in proof of the claimant's claims, the following points are raised;

(i) According to the Zimbabwe Revenue Authority (ZIMRA) regulations, where one is exporting to Zimbabwe on a temporary basis a commercial invoice is not required. A commercial invoice is required only where the goods are being exported permanently. Instead, the exporter was the claimant and the importer was Mbada Diamonds, the judgment debtor.

(ii) Secondly, if the equipment was being imported on a temporary basis, the claimant must have attached to its papers a Zimbabwe Revenue Authority (ZIMRA) document titled “Application for Temporary Import Privileges (ATIP)”. Its absence on the claimant's papers indicate that the equipment was permanently imported by the debtor.

(iii) Thirdly, as a temporary import permit is only valid for one year, having imported the equipment in 2011, the claimant would have been required to apply for the renewal of the temporary import permit which it did not do.

Consequently, the court must find that the equipment was exported to Zimbabwe permanently with Mbada Diamonds (Pvt) Ltd as the importer.

The judgment creditor also makes the following observations;

Bill of Entry marked E14…, the exporter is given as Gecko Mining. The importer is given as Condurango Investments trading as Mbada Diamonds. This Bill of Entry is in respect of the Bomag BW 212 D-04 Roller. It is dated 21 October 2011. Consequently, the owner is Mbada Diamonds (Pvt) Ltd. Code 102 on the Bill of Entry means that the equipment is being imported permanently hence value added tax, in the sum of US$11,562=48, was levied and paid. Value added Tax is not levied on temporary imports. The code 4000484 is a customs procedure code for goods imported for the purposes of mining operations that have been granted a rebate. Such a rebate is a special privilege granted only to approved Zimbabwean organisations. Mbada Diamonds (Pvt) Ltd is such an organisation which would have qualified for the privilege, not the claimant. The import documents attached to the claimant's papers relate to only the BOMAG BW 212D-40 Roller.

No import documents relating to the 2 drill rigs (DR 14 and DR 21) and the Volvo containerised Generator and the two containers with contents described in Annexure A and B were attached to the claimant's papers.

There is a supporting affidavit by a Zimbabwean clearing agent. His evidence is that the documents filed by the claimant show that the equipment was imported for consumption i.e. permanently. In short, the debtor imported the equipment for its own use in Zimbabwe.

It is trite that the onus of proof of ownership is on the claimant.

In Bruce NO v Josiah Parkes & Son (Rhodesia) (Pvt) Ltd & Another 1972 (1) SA 68 (R) it is stated that;

“Where the applicant for relief is the Sheriff, who (as is usually the case) has seized, under a writ of execution, goods in the possession of the judgment debtor, the Claimant is generally made the plaintiff, and the execution creditor defendant in the issue (Chese v Globe (184) 2 M & G per TINDAL CJ @ p935.

In such a case, the burden of proof is on the claimant to prove his title to the goods or to the possession thereof at the time of the seizure…,.”

The goods were attached on premises described as the debtor's place of business by the applicant. Whilst this is not the place of business cited in the summons, in all probability it is one of the several places of business of the debtor. The claimant has not placed anything before the court to demonstrate that it was in possession of the equipment, besides its say so, thereby shifting the burden of proof to the judgment creditor.

The claimant could certainly have proved the existence of a lease agreement between J Makwavarara and Shane Roberts or between Shane Roberts and itself. It did not do so. It could have tendered proof that it has filed an application for the repatriation of the equipment to South Africa with the Zimbabwean authorities. The reason for this failure, it must be inferred, is that the goods were permanently exported to Zimbabwe for consumption as contended by the judgment creditor.

As to whether the claimant has proved its title to the property, the claimant conceded that it has failed to locate the export documentation in respect to items listed in Annexure “A” and “B”. As such, it cannot be argued that the claimant has proved title to that property or that the judgment debtor does not own the property.

The only item whose documents citing it is the Bomag BW 212D-40 Roller. However, those documents are clearly export and import documents. The Bill of Lading…, indicates the consignee as Condurango Investments t/a Mbada Diamonds. A consignee is someone who receives goods for his or her own use or to sell on behalf of the person who sent the goods. By definition, the debtor therefore received the goods for itself and not on behalf of the claimant. The contention by the claimant is that it exported its goods to Zimbabwe and agreed with Mbada Diamonds (Pvt) Ltd that Mbada Diamonds would pay duty and do all clearance formalities before the claimant assumed control over the equipment as a sub-contractor.

The documents before the court just do not support that finding.

In order for this proposition to carry some weight, an agreement as to their true roles with the consignment would have gone a long way to confirm what they now claim to have been the position. Unfortunately, no such agreement was considered in support of this contention.

On the other hand, the judgment creditor contends that the judgment debtor bought this equipment and cleared customs for it. As such, it belongs to the debtor. The absence of an Application for Temporary Import Privileges (ATIP) document confirms this as does the absence of an application for renewal of a temporary import permit for the equipment. In the result, I am of the view that the Claimant has not discharged the onus on it to prove ownership or possession of the equipment such as to render it not executable.

The claimant's claim is therefore dismissed.

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL
Ruled By: TSANGA J

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her.

Both applicants, as husband and wife, equally assert the joint ownership of some of the assets attached....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016. It was out of time in terms of notifying them of the defence....,.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”

With this context, I turn first to Mrs Mutasa's claim as first applicant.

Whether the First Applicant has a claim for rescission using Rule 449

As regards spousal claims for property under attachment, where party can prove that the property belongs to them then it will not be attached to satisfy the debt of a spouse. See the discussion in the case of The Sheriff of Zimbabwe v Elina Chikwava and Ors 272.

Where a spouse asserts that assets are exempt as solely owned property and yet cannot provide evidence to support their claim the courts generally do not entertain such claims.

Creditors can, and do often, go for such jointly-owned assets to satisfy a debt owed by a spouse in the absence of tangible proof that the property is exempt separate property. Assets are protected by the law where the marriage is out of community of property, making the spouse liable for their own debt where an asset sought to be attached clearly belongs to one spouse.

However, in most marital households, even where parties are married out of community of property, household goods and effects are generally acquired jointly and constitute part of the jointly owned property giving rise to joint community of property in relation to those specific assets.

Even though Mrs Mutasa says she owns some assets, to which she has no receipts, by and large there are unequivocal averments by both applicants that the assets are jointly-owned.

Mrs Mutasa's claim, that the judgment was erroneously given and that she needs to be part of matter because it affects her, misses the point.

The rationale for making jointly owned or acquired property executable is fairly straight forward.

Absent the application of any specific provisions of the law to the facts exempting such property, the jointly-owned property is attachable and executable because it lacks a separate identity as his or hers. As a result of the obligation to support implicit in marriage, a concept which in reality goes beyond financial spousal support during marriage or on divorce as is generally understood, such jointly owned assets become attachable as belonging to an inseparable duo. After all, when married people take their vows they are for “good times and the bad times” and for “richer or poorer.” They undertake to be there for each other. The real meaning of these vows are put to the test and certainly become clearer in times such as these when a spouse incurs a debt.

“Often, couples become aware of the legal obligation of marriage only in the event of a crisis such as a long term illness of one of the spouses, the onset of financial problems, or the breakdown of marriage itself.”

See TWILA L PERRY The “Essentials of Marriage”: Reconsidering the Duty of Support and Services 15 Yale J.L & Feminism 1 (2003). See also SOHRAB TAHVILDARAN “Support” in the Duty of Spousal Support During Marriage 20 J. Contemp. Legal Issues 35 (2011-2012).

Legal fees constitute the necessaries of life for which a spouse may need to support the other.

Jointly owned assets may indeed need to be drawn upon to satisfy the debt of the other when they are not protected by law. These are the bad times. Such times are part of the risks of marriage when assets are jointly-owned and one spouse falls into debt.

Also, this does not mean that the spouse to whom the debt does not belong needs to be part of that matter.

As regards Mrs Mutasa's claim, that she is an interested party affected by the judgment and hence entitled to its rescission, there are core observations to be made from the factual matrix.

In a marital setting, it is apt to observe that a debt is incurred either by the wife on her own, or by a husband on his own, or by both the husband and wife jointly. Whilst the debt was incurred during a marriage, it was clearly that of her husband in a matter which had nothing to do with her. The matter in which she says is an interested party was of a contractual nature between her husband and two others with the legal firm in question in relation to legal services rendered.

The spouse who incurred the debt is the one responsible for it save that under the duty of support, and, relying on the doctrine of providing necessaries to other spouse, a creditor can stretch their tentacles to recover the debt from jointly owned property.

Whilst it is acknowledged, as was highlighted when she was granted the provisional order, that she would have inevitably have some interest in the property attached after 47 years of marriage, the interest she has is certainly not a legal interest in the sense of it being necessary to make her a party to that matter.

For these reasons that I have expounded, I find that Mrs Mutasa's quest, as first applicant, to have the judgment set aside under Rule 449 lacks merit. She is not an interested party to the debt which was separately acquired by her husband.

HH17-15 : THE SHERIFF OF HIGH COURT vs FBC BUILDING SOCIETY and WAYMARK INVESTMENTS (PVT) LTD and KREAMORN INVESTMENTS (PVT) LTD
Ruled By: NDEWERE J

The judgment creditor is Kreamorn Investments (Pvt) Ltd. On 5 March 2013, the judgment creditor obtained judgment by consent against the judgment debtors and three others for US$57,579=22 in case No. HC12609/12. Pursuant to that judgment, the judgment creditor, through the applicant, attached Stand No.4716 Prospect Township, also known as ...

The property awaits execution.

The first and second claimants wrote to the applicant, alleging that Stand No.4716 Mainway Meadows, Prospect, Waterfalls was wrongly attached because it did not belong to the judgment debtors.

On 18 February 2014, the applicant instituted inter-pleader proceedings in view of the conflicting claims inviting all three parties to file their claims.

On 28 February 2014, the first and second claimants filed opposing papers, giving their reasons why they contended that Stand No.4716 Mainway Meadows, Prospect, Waterfalls was wrongly attached. In paragraphs 7,8,9,10,11,16,17,18,19, 22,23 and 24 of their opposing affidavit, the claimants argued that the attachment was wrong because the judgment debtors did not obtain the first claimant's consent to encumber Stand No.4716 Mainway Meadows, Prospect, Waterfalls before they tendered it in the Consent Order of 5 March 2013.

The Consent Order of 5 March 2013 read as follows:

“1. The defendants shall jointly and severally, the one paying the other to be absolved, pay the plaintiff the sum of US$57,579=22.

2. The defendants shall pay the amount in 1 above as follows:

2.1. US$10,000= on or before 30 March 2013;

2.2. US$20,000= on or before 30 April 2013;

2.3. US$14,000= on or before 31 May 2013; and

2.4. US$13,922= on or before 30 June 2013.

3. The defendants shall jointly and severally, the one paying the other to be absolved, pay the plaintiff's costs of suit on an attorney and client scale.

4. The fourth defendant shall tender his property in Park Meadowlands as additional security for the due performance of the defendants' obligations in terms of this Consent Order and shall hand over all necessary documents to the plaintiff's legal practitioners to perfect the security.”

The third and fourth defendants in Case No. HC12609/12 were Lucia Marimo and Bernard Marimo. They are the ones in possession of Stand No.4716 Mainway Meadows, Prospect, Waterfalls.

The first claimant is taking issue with paragraph 4 of the Consent Order in case HC12609/12 wherein the fourth defendant, Bernard Marimo, tendered “his property in Park Meadowlands.” The first claimant is saying in terms of its own agreement with Bernard Marimo, the judgment debtor, Stand No.4716 Mainway Meadows, Prospect, Waterfalls could not be encumbered without the first claimant's consent. The first claimant referred to the relevant clause in its agreement with the judgment debtor which reads as follows:

“Until the Stand is transferred by the Society (FBC) to the purchasers, the purchasers shall not cede or assign their rights and obligations under this agreement nor otherwise alienate or encumber their rights hereunder without the written consent of the Society.”

The claimants argued that because the attachment has been brought about by a Consent Order which encumbered Stand No.4716 Mainway Meadows, Prospect, Waterfalls without the claimant's written consent, the Consent Order is not valid, and, consequently, the attachment is null and void and the applicant should release the property to the claimants.

Unfortunately, the claimants' argument, though spirited, is based on a wrong factual basis. What was tendered in paragraph 4 of the Consent Order was 'his property in Park Meadowlands,' not Stand No.4716 which is in Mainway Meadows in the Waterfalls area. So the property which was attached by the applicant is not the property which was tendered in the Consent Order. So the factual basis for the argument raised in the first claimant's opposing affidavit is wrong. If the factual basis is wrong; the conclusion also becomes wrong.

Indeed, the judgment creditor responded to that effect, that it did not attach the property in the Consent Order; it simply looked for a property in which the judgment debtor had real rights and attached it.

During the oral hearing in court, first claimants' counsel conceded that the property referred to in the Consent Order is not the same property which was attached. This means that the basis for the claimants' opposition, as given in the opposing affidavit, that the judgment debtor had no authority to encumber Stand No.4716 Mainway Meadows, Prospect, Waterfalls falls away.

In addition, the claimants claimed to be the owners of Stand No.4716 Mainway Meadows, Prospect, Waterfalls.

The second claimant has a certificate of registered title for a larger piece of land measuring 7,6793 hectares in Subdivision M of Prospect. The Stand is called Stand 2491 Prospect Township of Subdivision M of Prospect. In April 2010, the second claimant sold Stand No.4716 Prospect Township of Stand 2491, measuring 540 square metres to first claimant. In September 2010, the first claimant sold Stand No. 4716 Prospect Township of Stand 3202 measuring 540 square metres in the District of Salisbury.

You will note that the second claimant owned Stand 2491, albeit a larger portion, and that is what it sold to the first claimant. But in the sale between the first claimant and the judgment debtors, namely Bernard Marimo and Lucia Marimo, the Stand Number suddenly changed from 2491 to Stand 3202. No explanation is given for the appearance of this different Stand Number by the claimants either in their opposing affidavit or their Heads of Argument or during oral submissions. The judgment creditor raised this issue in its opposing affidavit, but still there was no explanation why the Stand Number, which was 2491 in the certificate of registered title has now changed to Stand No. 3202. This creates doubt on whether the Stand which is owned by the second claimant and was sold to the first claimant is the one which was sold to the judgment debtors.

So, the second claimant has failed to adduce proof that it is the owner of the judgment debtors' property which was attached by the applicant.

To add to the confusion, the preamble to the agreement between the first claimant and the judgment debtors…, paragraph 1 says the first claimant obtained right, title and interest in;

Stand 4716 Prospect Township of Stand 3202 measuring 540 Square Metres in the District of Salisbury…, in terms of an Agreement of Sale entered into on the 25^th of April 2007 with Costains Africa Limited.”

Yet, the Agreement of Sale for Stand No.4716 Prospect Township of Stand 2491 was with Waymark Investments, the second claimant, on 9 April 2010.

This issue was raised by the judgment creditor in its opposing papers yet it was not responded to or canvassed during oral submissions. This tends to confirm that the property which was attached is not the one which is owned by the second claimant. The second claimant does not feature at all in the sale agreement between the first claimant and the judgment debtors.

The second claimant has therefore failed to prove that it owns the property which was attached.

The first claimant alleges it bought Stand 4716 through an Agreement of Sale. We are no longer sure whether it bought the Stand from the second claimant or from Costains Africa Limited but the fact of the matter is that it admits that all it has is an Agreement of Sale.

It has no registered title.

Then, it entered into an Agreement of Sale with the judgment debtors and advanced certain sums of money to the judgment debtors, but it did not process a mortgage bond on the property as required by law.

So, on its own admission, the first claimant has no legal basis to stop the attachment of Stand 4716. The judgment debtors' rights and interest in Stand 4716 is what has been attached and this is permissible in terms of Rule 343 and the first claimant has no legal basis to stop such attachment. Previously decided cases have also accepted that such rights can be attached and lawfully sold in execution. The case of Mavhundise v UDC Ltd & Ors 2001 (2) ZLR…, confirmed that the rights and interests in land can be lawfully sold in execution….,.

Accordingly, the first and second claimants' claims to the attached property are hereby dismissed. Stand No.4716, Prospect Township, also known as No.4716 Mainway Meadows, Prospect, Waterfalls is hereby declared executable. The first and second claimants shall pay the applicant's and judgment creditor's costs.

HH160-15 : THE SHERIFF OF THE HIGH COURT and STEPHEN MUTUMHE vs RICHARD CHITAMBO
Ruled By: MTSHIYA J

This is an interpleader application.On 9 January 2014, an arbitral award was made in favour of the judgment creditor. The award was against Rufaro Marketing (Pvt) Ltd (the judgment debtor) (not cited herein). The judgment creditor proceeded to register the award as an order of this court.The court order obtained ...

This is an interpleader application.

On 9 January 2014, an arbitral award was made in favour of the judgment creditor. The award was against Rufaro Marketing (Pvt) Ltd (the judgment debtor) (not cited herein). The judgment creditor proceeded to register the award as an order of this court.

The court order obtained on 24 April 2014 reads as follows:

“IT IS ORDERED THAT:

1. The arbitral award by the Honourable K Segula, dated 9^th January 2014, be and is hereby registered as an order of the High Court.

2. The respondent be and is hereby ordered to pay costs of suit.”

On the basis of the above order, on 15 May 2014, the judgment creditor issued a writ of execution. On 20 May 2014, a Mazda T3500, registration number ABI 7914 (the truck), registered in the name of the judgment debtor, was then attached together with other goods belonging to the judgment debtor.

On 26 June 2014, through an affidavit sworn to on 20 June 2014, the claimant advised the applicant (the Sheriff of the High Court) that the truck belonged to him. He said he had bought the truck from the judgment debtor. To that end, he submitted a copy of a “Vehicle Sale Agreement” dated 16 May 2014.

Apart from costs incurred in the execution process, the applicant has no interest in the matter. All he wants is a determination on the ownership of the truck i.e. does the truck belong to the claimant or to the judgment debtor?

In support of his claim, the claimant, in part, avers as follows:

“6. The attached Mazda truck no longer belongs to the Judgment Debtor but to me by virtue of a vehicle sale agreement entered into on the 16^th of May 2014. Attached hereto as “Annexure A” is a copy of the vehicle sale agreement.

7. I have annexed hereto copies of the receipts showing that payment was done to Rufaro Marketing (Private) Limited for the purchase of the motor vehicle. See “Annexure B.”

8. The payment was made on my behalf by Anephen Investments (Private) Limited a company for which I am one of the company directors as can be seen from the list of Directors attached as “Annexure C.”

9. It is only unfortunate that I had not yet taken possession of the motor vehicle and removed it from the Judgment Debtor's premises as the sale had only been concluded 4 days before the judicial attachment took place.”

The annexure referred to in paragraph 7 above is an NMB Bank statement reflecting a transfer of US$12,000= made in favour of Rufaro Marketing (Pvt) Ltd on 2 June 2014. The transfer was effected by a company known as Anephen Investments (Pvt) Ltd (the company). The claimant is one of the Directors of the company.

On his part, the judgment creditor, in opposing the claimant's claim, averred that the truck belonged to the judgment debtor. He also states the following:

“Moreover, there is collusion between the Claimant and the Judgment Debtor. This is evidenced by the letter in Annexure “A” which clearly requests the Sheriff to place on hold the sale in execution and the letter refers to 'attached goods.' The present interpleader application is in respect of one vehicle only yet the Claimant requested the Sheriff to stop the sale of all the attached goods. If the claimant was not colluding with the judgment debtor, he would have specified which vehicle he wanted placed on hold.

6. AD PARA 7

This is denied. The agreement of sale is not proof of ownership. There was no delivery of the vehicle neither was the purchase price paid for upon signing the agreement. As such, no valid sale was entered into. Moreover, the agreement of sale was allegedly entered into four days prior to attachment. The Judgment Debtor was well aware that there was a court order in favour of the Judgement Creditor and attempt to sell assets prior to attachment is an attempt to defeat the enforcement of a court order. There is an element of collusion between the Claimant and the Judgment Debtor. The agreement of sale is a fabricated document aimed at defeating the enforcement of a court order.”

The judgment creditor goes further to state that the payment of US$12,000=, effected by Anephen Investments (Pvt) Ltd (the company), did not state what the payment was for and no receipts were attached.

The judgment creditor dismissed the Agreement of Sale, relating to the truck, as a fabricated document and prayed for the dismissal of the claimant's claim.

It is common cause that as I write this judgment, the truck remains registered in the name of the judgment debtor. That has not been disputed.

Paragraph 8.1 of the Agreement of Sale provides as follows:

“8.1 The parties agree to sign all documents necessary to transfer ownership of the vehicle from the Seller onto the name of the Buyer within 30 (THIRTY) days of signing this agreement of sale.”

Notwithstanding the agreement of payment, in terms of the above clause, transfer should have been effected around 16 June 2014. However, we have a situation where payment is alleged to have been effected on 2 June 2014 and yet the truck remained in the hands of the judgment debtor. Worse still, payment was effected by an independent entity whose connection with the claimant can only surface upon the lifting of the corporate veil - a process which is not called for in casu. Strangely enough, that payment is not immediately followed by a claim for possession and transfer of ownership. No explanation is given.

Furthermore, an examination of the NMB Bank statement reflects other huge transfers of money from the company's account to other entities. It is possible that the company may have had business dealings with Rufaro Marketing (Pvt) Ltd but there were many other companies. However, unless there is evidence to directly link the payment of US$12,000= to the truck, we cannot positively conclude that the payment was being effected on behalf of the claimant. There is nothing in these papers to support that assertion. A Board resolution could have helped.

In addition to the above, one sees that the Agreement of Sale is only four days older than the attachment date i.e. 20 May 2014. The writ of execution was issued on 15 May 2014 i.e. a day before the purported sale agreement. I want to believe that all along the judgment debtor must have been aware of the award of Arbitrator K Segula dated 9 January 2014 and the High Court Order dated 24 April 2014. It must also have been aware of the writ of execution born a date before the purported agreement of sale.

The events listed above give credence to the submission by the judgment creditor that there must have been some collusion between the claimant and Rufaro Marketing (Pvt) Ltd. The claimant was not able to explain the coincidences that occurred as given above. The failure to give adequate explanation leaves me with the conclusion that there was never any genuine agreement of sale between the claimant and the judgment debtor – who, in any case, has not found it necessary to lend support to the claimant. The judgment debtor, in my view, never sold the truck to the claimant but brought in the claimant to save the truck from seizure.

In view of the foregoing, I am, on a balance of probabilities, inclined to accept that “the agreement of sale is a fabricated document which is aimed at defeating the enforcement of a court order.”

The claimant has therefore not succeeded proving ownership of the truck and accordingly his claim must fail.

IT IS ORDERED THAT:

1. The claimant's claim to a Mazda T3500, registration ABI 17914, placed under attachment in execution under an order of this court, dated 24 April 2014, be and is hereby dismissed.

2. The Mazda T3500, registration ABI 17914, be and is hereby declared executable.

3. The claimant shall pay costs of both the application and the judgment creditor.

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MATHONSI J

This application is made in terms of Rule 359(8) of the High Court of Zimbabwe Rules, 1971 for the setting aside of the decision of the second respondent, the Sheriff for Zimbabwe, confirming the sale in execution of the applicants' immovable property, being Stand 80 Borrowdale Township of Borrowdale Brook ...

The property in question was sold by public auction through the medium of Cliprunt Real Estate on 5 May 2014 for a sum of US$355,000=.

The circumstances leading to the sale of the property are that the first respondent sued the applicants on 16 January 2013 in HC361/13 for payment of the sum of US$454,874=62 plus interest being a loan advanced to them. The first respondent also sought an order declaring the property executable as it had been mortgaged as security for the loan in the event of a default in payment.

The applicants may have realised the folly of contesting that claim for, on 13 June 2013, they capitulated and signed a Deed of Settlement with the first respondent in terms of which they undertook to pay the debt on certain terms and conditions. They also agreed that in the event of default, the first respondent was entitled to make a chamber application for judgment to be entered against them on the outstanding balance together with costs on a legal practitioner and client scale.

As is the case with most such acknowledgments of indebtedness in this jurisdiction, the applicants defaulted prompting the first respondent to move for judgment in terms of the settlement of the parties, but not before the first respondent had granted its consent to the applicants allowing them to sell the mortgaged property by private treaty if they so wished and pay the debt. It was after the applicants had failed to secure a buyer by private treaty and failed to pay the debt in terms of the Deed of Settlement that the first respondent took matters into its own hands.

Having obtained judgment against the applicants on 7 October 2013, which remained unsatisfied, the first respondent instructed the Sheriff to execute against the mortgaged immovable property. The Sheriff obliged, doing what he knows best, on 5 May 2014, selling the property by public auction.

The applicants objected to the confirmation of the sale by public auction in terms of Order 40 Rule 351(1)(b) of the High Court rules resulting in a hearing before the Sheriff on 27 June 2014.

At that hearing, the applicant placed reliance on valuation reports relating to the property which suggested that the property was worth more than the highest bid. Entredev Valuation Surveyors had, on 7 May 2014, placed the aggregate market value of the property at US$922,500= while Quadstar Real Estate said the value was US$945,700= as at 21 May 2014. The first respondent argued that by agreement of the parties, the applicants had been allowed to sell the property by private treaty but they had failed to secure offers in the region of the valuations which appeared to over-state the value. In fact, by letter dated 13 June 2013, the same day that the Deed of Settlement was signed, the first respondent had issued the following letter granting authority to the applicants to sell the mortgaged property:

“TO WHOM IT MAY CONCERN

SUCCESS AUTO (PVT) LTD: Proposed Subdivision of Stand 80 Borrowdale Brook Township of Subdivision H of Borrowdale Estate registered in the name of Honeypot Investments (Pvt) Ltd

We have extended certain banking facilities to the captioned which facilities were secured by a mortgage bond over the above described immovable property. We do not object to the issuing of a subdivision permit or an outright sale of the said property subject to the following terms and conditions:

1. The subdivision, bond cancellation and transfer will be handled by our lawyers.

2. The subdivision and/or sale should not go beyond seventy-five days from the date of signing the Deed of Settlement.

Please note the above condition shall lapse if the said subdivision or sale goes beyond seventy five days.

Please be guided accordingly.

Yours faithfully

Patricia F Nyazenga

Div. Director Group Credit Management Division

Bernard Mutambara

Credit Service Officer”

The consent to sell the mortgaged property came to naught as, at the expiration of the period of 75 days set, the applicants had not managed to sell the property forcing the first respondent to fall back on remedies available to it, namely, taking judgment and executing in terms of the court's rules.

After considering submissions made by the parties, the Sheriff ruled, and, in confirming the sale he reasoned that:-

“The price of $355,000=, which was realized at the auction, is way above the forced sale value of $80,000= and even exceeds the stipulated market value of $300,000= so cannot be claimed to be unreasonably low since Sheriff sales are forced sales and not based on market value. It even exceeds the market value. The matter has been outstanding since 2012 and the judgment debtor was given a chance, by the letter dated 13 June 2014, to sale (sic) the property by private treaty. To ask for 4-6 months to sale (sic) the property again by private treaty is not possible after they did not utilize the one year there (sic) were given to sale (sic) by private treaty. The Sheriff, after considering all the submissions by both parties, is going on to confirm the sale.”

The objection of the applicants to the sale had been premised on;

(i) Firstly, that the price was too low; and

(ii) Secondly, that they needed to be given four to six months more to try and sell the property by private treaty.

A case of closing the gate after the horse had bolted.

The Sheriff was unconvinced and his reasoning was clearly articulated in that regard. It is important to note that it was never the applicants' case, before the Sheriff, that the latter had not proceeded against their movable property before closing in on the mortgaged immovable property. In fact, the issue of movable property has never been the applicants' case.

The applicants were unhappy with the decision to confirm the sale and they lodged this application in terms of Rule 358(8) of the High Court Rules.

In the founding affidavit of Douglas Makonese, the third applicant, they stated, after giving a narration of the background, that:-

“9. The applicants realised that the value that the property was to be sold for was way below its forced sale value. The amount was unreasonably low.

10. A request for setting aside the sale was duly filed and was supported by two valuation reports. The first by Entredev showed that the market value of the property was nine hundred and twenty two thousand five hundred dollars (US$922,500=) whilst its forced sale value was six hundred and forty six thousand dollars. See Annexure 'D'.

11. Another report by Quadstar Real Estate showed that the market value of the property is nine hundred and forty five thousand United States dollars (US$945,000=) while its forced sale value was six hundred and sixty nine thousand dollars (US$669,000=). See Annexure 'E'.

12. The Sheriff, however, went on to reject the request to have the sale set aside and it is thus determination of the Sheriff which is the subject of the application. See Annexure 'F'.

GROUNDS FOR THE APPLICATION

13. The Sheriff grossly erred in dismissing the valuation reports and relying on the report of his independent valuer who held that forced value of the property was eighty thousand dollars and that its market value was three hundred thousand dollars.

14. The Sheriff relied on this report when it is quite clear that the property is primeland which is situated in Borrowdale Brook…,.

15….,.

16. If the Sheriff had properly applied his mind to the report given by his independent valuer, he would have noted that it was far from reality and was only designed to ensure that the sale sails through.

17….,.

18….,.

19. The fact that the matter has been outstanding, a fact which was taken into consideration by the Sheriff, does not mean that the property should be sold for an unreasonably low price. The issue is whether or not the amount realised is not unreasonably low. Where evidence is adduced to the effect that it is low, the Sheriff must decline to confirm the sale. He cannot rush to confirm it simply because in his opinion the matter has been outstanding since 2012.

20. It is therefore just and equitable that the decision by the Sheriff be set aside.

21. I therefore pray for an order in terms of the draft.”

I have deliberately quoted extensively from the applicants' founding affidavit to demonstrate the case which the first respondent was called upon to answer to because, at the hearing of the application, the applicants sought to advance a completely different case, a case not borne by the papers before me, namely, that the sale was null and void by reason that the Sheriff had not exhausted the applicants' movable property before proceeding against the mortgaged property - movable property which was not even identified.

The first respondent opposed the application stating, in the opposing affidavit of Bernard Mutambara, its Recoveries Manager, that in terms of the Deed of Settlement of the parties and the simultaneous consent issued by it, the applicants were supposed to sell the property by private treaty. They failed to secure a willing buyer and also failed to clear the debt in terms of the agreement. It was as a result of that that the first respondent took judgment which it executed.

The first respondent maintained that at the hearing before the Sheriff it became apparent that the applicants' valuers, who had overstated the value of the property, had themselves failed to secure a buyer willing to pay a price higher than the one realized at the public auction. Those valuers could not explain why they failed to secure a higher price between 13 June 2013 and 27 June 2014, a period of more than a year. According to the first respondent, values of property have dropped significantly due to the liquidity crunch prevailing, and, as such, the values relied upon by the applicants were not only fictitious but could also not be realised on the market. The Sheriff's decision to confirm the sale could therefore not be faulted.

In their heads of argument, the applicants submitted that the sale ought to be set aside in terms of Rule 359 of this courts rules on the basis that the property was sold for an unreasonably low price for a property located in Borrowdale. They cited Rule 359(1) which reads:-

“Subject to this rule, any person who has an interest in a sale in terms of this Order may request the Sheriff to set it aside on the ground that -

(a) The sale was improperly conducted; or

(b) The property was sold for an unreasonably low price; or

It was further submitted that in seeking to set aside the sale the applicants were relying on the ground that the property was sold for an unreasonably low price and no other ground.

In advancing that argument, reliance was placed on the words of GILLESPIE J in Morfopoulos v Zimbabwe Banking Corporation Ltd & Ors 1961 (1) ZLR 626 (H)…, where he said:-

“The price achieved is therefore itself taken as a reliable indication of value. For these reasons, there is recognised an onus upon the challenger to prove that the price so achieved is unreasonably low. A litigant wishing to discharge this burden must be fully prepared with properly supported valuations of the property under consideration. These valuations must reflect the upper and lower limits of the suggested market price so that the court might make a proper determination whether the price achieved is unreasonable, that is to say that it is substantially lower than would reasonably be anticipated given the expected range of prices. See Zvirawa (supra) at 17 D–E. The valuations that are commonly produced in such matters frequently tend nowadays to essay an assessment of a forced sale value. This is itself of some assistance to the court in that one is by, such an opinion, assisted towards a finding as to whether or not the price achieved is what one would expect on a forced sale or unacceptably disproportionate even to such lowered expectations.”

See also Zvirawa v Makoni & Anor 1988 (2) ZLR 15 (S)…,.

I totally agree with the reasoning adopted by GILLESPIE J including his conclusion…, that:-

“The awe and finality with which the law seeks to invest the process of execution cannot be disturbed by such ill refined and non-specific averments as these. The rights which the third respondent has acquired cannot be denied him save upon sufficient proof that it is not fair that he should continue to enjoy them.”

In the present case, the applicants relied on valuations that were not only heavily compromised but also that the authors of them were discredited at the hearing before the Sheriff;

(i) Firstly, by the variance between their valuations and that of the Sheriff's independent valuer who pegged the forced value at $80,000= and the market value at $300,000=; and

(ii) Secondly, by the fact that the same estate agents had been afforded the opportunity to sell the property with the consent of the first respondent but for well over a year they could not secure a buyer at a price above the one achieved.

Their valuations were demonstrably unreliable and the Sheriff properly rejected them.

It is not without significance that these two valuers were sourced by the applicants and were, for all intents and purposes, the applicants' agents whose independence, and therefore, reliability, was non-existent. Against their evidence was the evidence of the Sheriff's independent valuer who had no interest in the matter and was accountable to the Sheriff only, an officer of this court.

The sale was confirmed by the Sheriff in terms of the rules and the applicants have not attacked it on the basis that it was improperly conducted. That confirmation sets into motion the position stated by the Supreme Court in Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S)…, that:

“Once confirmed by the Sheriff, in compliance with Rule 360, the sale of the property is no longer conditional. That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of Rule 359 for it do so. See Naran v Midlands Chemical Industries (Pvt) Ltd SC220-91 (not reported) at pp 6-7. When the sale of the property not only has been properly confirmed by the Sheriff but transfer effected by him to the purchaser against payment of the price, any application to set aside the transfer falls outside Rule 359 and must conform with the principles of the common law.”

See also LMS Timbers (Pvt) Ltd & Anor v The Sheriff of Zimbabwe & Ors HH484-14; Mhlanga v Sheriff of the High Court 1999 (1) ZLR 276 (H).

I am of the view that the sale cannot be interfered with merely because of the self-serving interests of the applicants who desire a better price which they themselves failed to achieve, ably assisted by their own extravagant estate agents, for a period of over a year. The Sheriff was right in confirming it the way he did especially as he relied upon the opinion of an independent valuer who fixed the value at far less than what was achieved.

An interested third party has come onto the scene having purchased the property for value, but has unfortunately not been cited, whose interest cannot be ignored.

The matter would otherwise end there but for the belated submissions by Mr Zhuwarara, who took over from Mr Hashiti, to advance the point that the sale should be set aside because the Sheriff did not proceed against and did not exhaust the movable property of the applicants before executing against the immovable property. He relied on Rule 326 which provides:-

“It shall not be necessary to obtain an order of court declaring a judgment debtor's immovable property executable or to sue out a separate writ in order to attach and take in execution the immovable property of any judgment debtor, but where so desired, the judgment creditor may sue out one writ of execution for the attachment of both movable and immovable property;

Provided that the Sheriff or his deputy shall not proceed to attach in execution the immovable property of the judgment debtor unless and until he has by due inquiry and diligent search satisfied himself that there is no or insufficient movable property belonging to the judgment debtor to satisfy the amount due under the writ.”

In my view, the proviso to that rule must be read in conjunction with the rule itself and means that a judgment creditor does not have to obtain an order declaring the debtor's immovable property executable and does not have to issue a separate writ against such immovable property where he already has a writ against the debtor's movable property. In such situation, the judgment creditor should simply issue one writ against both movable and immovable property. He will, however, not be allowed to proceed against the immovable property until such time that the Sheriff has exhausted the movable assets.

Mr Zhuwarara submitted that even where an order of the court exists declaring an immovable property executable and a writ against such immovable property has been issued, the Sheriff still has to go through the formality of searching for movable property and exhausting it before he can lawfully proceed against the immovable property. As the Sheriff did not do that in casu, the sale is invalid as it offends Rule 326 and should be set aside.

He cited the judgment of PATEL JA in Govere v Ordeco (Pvt) Ltd & Anor SC25-14…, where the learned Judge of Appeal stated:-

“In the present matter, it is common cause that there was no nulla bona return in respect of the assets of Coldrac and no attempted attachment of the appellant's movables. The order of the court a quo, so it is contended, entitles the first respondent, without any qualifications, to execute against the appellant's immovable, thereby circumventing the requirements of Rule 326. I am unable to agree with that contention for the simple reason that the order for execution granted by the court a quo only comes into operation in the event that the appellant fails to pay the judgment debt. The order is clearly conditional and contigent upon such failure. Therefore, the appellant is perfectly at large to tender his movables in satisfaction of the judgment before any process for the execution of his immovables is iniated. In any event, the interpretation of Rule 326 propounded by Mr Magwaliba is clearly not supported by the wording of that rule…,. First and foremost, the rule patently does not, as is contended for the appellant, differentiate as between secured and unsecured creditors. It applies to both without distinction. Secondly, the plain meaning of this rule is that the judgment creditor has the option to sue out a separate writ of execution for the attachment of immovable property or a single writ for the attachment of both movable and immovable property. In either event, before proceeding to attach immovable property, the Sheriff or his deputy is enjoined to satisfy himself that the judgment creditor does not own any or has insufficient movable property to satisfy the judgment debt.”

See also Pandhari Lodge (Pvt) Ltd & Ors v Central Africa Building Society & Anor HH720-14…,.

The difficulty which the applicants have is that this argument is not borne by the papers. Not only is the submission that the Sheriff did not exhaust their movable property being led from the bar as it is missing completely from the founding affidavit, I am also unable to verify its correctness. We simply do not know whether such movables were exhausted or not the parties not having addressed such facts in evidence. I am therefore not in a position to make any pronouncement in that regard in the absence of evidence.

It is a principle of our law that an application stands or falls on its founding affidavit. See the dissenting judgment of MALABA DCJ in Moyo & Ors v Zvoma NO & Anor 2011 (1) ZLR 345 (S)…, where he said:-

“My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.”

That is the rule in application proceedings.

That is as it should be because the respondent must be accorded an opportunity to respond to allegations made in the founding affidavit. He does so through the opposing affidavit where he places evidence before the court to rebut whatever is contained in the founding affidavit. He has no other bite at the cherry, and, as such, the applicant cannot be allowed to crawl back after the respondent has submitted the opposing affidavit to introduce evidence which the respondent would not comment on. That would be an ambush. It is even more reprehensible when it comes through evidence led by counsel from the bar. Such is untested evidence, it is not even sworn evidence and should simply be ignored as I proceed to do.

In the result, the application is hereby dismissed with costs.

HH12-15 : FIDELITY PRINTERS AND REFINERS (PVT) LTD vs LAZARUS S.C. MWALE
Ruled By: NDEWERE J

On 9 January 2014, the plaintiff issued summons for Provisional Sentence against the defendant for US$30,000= with interest on that amount at the rate of 1.5 % per annum from December 2012 to the date of payment in full.The plaintiff's claim is based on a mortgage bond, number 0004917/2012, which ...

The plaintiff's claim is based on a mortgage bond, number 0004917/2012, which was executed on 20 December 2012 by the defendant in favour of the plaintiff over the following property: Certain piece of land situate in the District of Salisbury being Stand 263 Salisbury Township of Salisbury Township Lands measuring 342 square metres, held under Deed of Transfer No. 4109/2009.

In addition to the mortgage bond registered over the property, the defendant signed an acknowledgement of debt for the US$30,000=.

On 19 March 2014, the defendant filed opposition papers.

He started by raising a point in limine on jurisdiction. He said the debt arose out of the employer-employee relationship between the parties, and, consequently, the dispute must be handled by the Labour Court, since the High Court has no jurisdiction in labour matters. He said the mortgage bond was just security for a staff loan. On the merits, his defence was that the plaintiff has not fully paid him his severance package; he will pay the mortgage loan when the plaintiff has paid him all his dues.

The background is that the defendant was previously employed by the plaintiff. Following a restructuring exercise, the defendant's post became redundant, and, on 10 October 2012, the plaintiff and the defendant concluded a termination contract.

According to the agreement of 10 October 2012, the applicant would be paid US$227,318=45 in terms of calculations on an attached schedule. There were other non-monetary benefits. One of such benefits itemised on the schedule was that the plaintiff would pay the cost of drilling and installing a borehole on presentation of quotations by the defendant. The defendant's official motor vehicles, a Toyota Prado and a utility double cab, were also to be transferred to the defendant. The modalities of the transfers were detailed in the schedule. The defendant accepted the package as itemised in the schedule “in full and final settlement of all monies due and owing to him.” He further accepted that in terms of the agreement, his last working day shall be on the day he received his package, 'provided that such date shall be no later than 30 November 2012.'

In his opposition, the defendant said the following matters were still outstanding;

(a) The retrenchment authorisation from the Ministry.

(b) Copies of the retrenchment submissions to the Zimbabwe Revenue Authority (ZIMRA) and the tax clearance certificate.

He also said the issue of the borehole and motor vehicles had not been finalised.

The defendant's conclusion was that because of the outstanding matters itemised above, he was still an employee of the plaintiff and owed salaries in excess of the $30,000= being claimed on the mortgage.

I now proceed to determine the matter.

Firstly, this is not a labour matter. It is a matter of foreclosure on a mortgage bond.

The defendant was an employee of the plaintiff up to “no later than 30 November, 2012” in terms of the termination agreement. The termination agreement was concluded on 10 October 2012 and Clause 2 said the last working day would be the day he received his termination package 'provided that such date shall be no later than 30 November 2012.' The agreement which was signed by the parties, was to the effect that if there was a delay in paying the retrenchment package, the defendant would remain an employee, but 30 November 2012 was agreed to be the final deadline. Indeed, the plaintiff argued that after 30 November 2012, the defendant never reported for duty. This is because he knew he was no longer an employee. So how can he be paid a salary when he had stopped working? This means that by 1 December, 2012, the defendant was no longer an employee. If there was anything still outstanding, he could claim it and sue for it; but his status as an employee changed forever at the end of November 2012.

In terms of the termination agreement, the defendant ceased to be an employee after 30 November 2012.

However, due to the plaintiff's benevolence, the defendant was allowed to enjoy the benefits of a concessionary housing loan reserved for its staff. In December 2012, a mortgage bond was registered over that property. In my view, this was a commercial transaction for the purchase of immovable property between two individuals of full contracting capacity. The terms of the mortgage bond were very clear and they included foreclosure in the event of failure to pay.

In addition, the defendant signed an acknowledgement of debt on 20 December 2012. In paragraph 3 of that acknowledgement of debt, the defendant acknowledges that he is aware that if he fails to pay, there will be foreclosure on the security pledged. Consequently, the point in limine that the High Court has no jurisdiction cannot succeed in view of the above factors. It must be borne in mind that even where parties are employer and employee; it does not mean that all their contractual relationships are labour matters. The High Court's jurisdiction is ousted on labour matters only. In this instance, there is a mortgage bond between an ex-employee and its former employer and there is nothing in that mortgage contract which makes it a labour matter.

The point in limine is therefore dismissed.

On the merits, it is common cause that the defendant received a major component of his retrenchment package which was the US$227,318=45. It is also common cause that up to the time of the hearing of this matter, the defendant had not paid even a cent of the instalments he was supposed to pay on the mortgage bond.

In my view, this shows that the defendant is not seriously interested in the mortgaged property. It is shocking that an ex-employee who has been given such a handsome retrenchment package by his previous employer will fail to honour nominal repayments on a US$30,000= loan. It is even more shocking that when the previous employer wants to foreclose, the defendant then cries foul and claims that he is still an employee when he signed a termination contract which gave a specific date of 30 November 2012 as the final termination deadline. For the reasons already outlined earlier in this judgment, the defendant is no longer an employee and he is not owed any salary by the plaintiff.

Furthermore, the outstanding issues which the defendant is raising have nothing to do with the Mortgage Bond agreement. The Bond is a separate agreement concluded by two parties with full capacity and it is not subject to an employment contract or any other agreement. There is, therefore, merit in the plaintiff's case. Provisional sentence is therefore granted as follows:

1. Defendant shall pay US$30,000= plus interest at the rate of 1.5 % per annum from 20 December 2012 to date of final payment.

2. Stand Number 9263 Salisbury Township of Salisbury Township Lands in Salisbury District measuring 342 square metres registered under title number 4109/2009 is hereby declared executable.

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

The applicant is the Deputy Sheriff for Bulawayo. Steelnet (Zimbabwe) (Pvt) Ltd is the holding company of BMA Fasteners (Pvt) Ltd. In case No. HC3078/11, the Minister of Higher and Tertiary Education (the judgment creditor herein) sued and obtained a judgment, as plaintiff, against BMA Fasteners (Pvt) Ltd for US$9,350=13. ...

Steelnet (Zimbabwe) (Pvt) Ltd, which had been placed under judicial management in September, 2011 initiated the current interpleader proceedings as claimant. Steelnet (Zimbabwe) (Pvt) Ltd's argument is simply that by virtue of the fact that BMA Fasteners (Pvt) Ltd is a wholly owned subsidiary of Steelnet (Zimbabwe) (Pvt) Ltd (which is under judicial management), the judicial management order applies with equal force to BMA Fasteners (Pvt) Ltd whose property should also not be attached without leave of the court….,.

The high watermark of Steelnet (Zimbabwe) (Pvt) Ltd's contention is that it owns 100% of the shares in BMA Fasteners (Pvt) Ltd and since Steelnet (Zimbabwe) (Pvt) Ltd is under judicial management, then the judicial management order staying execution of process against Steelnet (Zimbabwe) (Pvt) Ltd applies with equal force to its 100%-owned subsidiary.

The fallacy of this argument has been laid bare since time immemorial. In Salomon v Salomon and Co. Ltd [1897] AC22 (HL)…, the court held:

“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are…,.. A company has legal existence with…, rights and liabilities of its own.”

This is a time-honoured concept of separate legal persona of corporate entities.

At law, a company is a legal entity entirely distinct from its members who compose it. It has neither body parts nor passions but it can have rights and duties of its own. And such rights and duties do not attach to the members of the company but to the company itself. A company cannot eat or sleep but it can keep a house and do business: De Beers Consolidated Mines Ltd v Howe [1906] CA 455 (HL).

As regards liability of a holding company for the debts of a subsidiary, the legal principle is clear: “the separate legal existence of the constituent companies of the Group has to be respected” per LORD WILBERFORCE in Ford & Carter Ltd v Midland Bank Ltd (1979) 129 N L J 543, 544.

The rule in Salomon v Salomon and Co. Ltd [1897] AC22 (HL) thus prevails.

BMA Fasteners (Pvt) Ltd is an incorporated entity and is not the one under judicial management. Steelnet (Zimbabwe) (Pvt) Ltd may own a 100% shareholding in BMA Fasteners (Pvt) Ltd but that does not mean that BMA Fasteners (Pvt) Ltd loses its time-hallowed status of being a separate legal entity….,.

In the result, I make the following order:

(1) That the claimant's claim be and is hereby dismissed;

(2) That the attached goods being, 800 harrows, be and are hereby declared executable;

HB125-18 : THE SHERIFF OF ZIMBABWE - APPLICANT vs CORESOIL MINING PL (Represented by Kelvin Kaguru) - CLAIMANT and KUSAFUNGA KAGURU - JUDGMENT DEBTOR and ESTER MOYO (NEE KELLIE) - JUDGMENT CREDITOR
Ruled By: MAKONESE J

The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the Rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No.29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the Rules. Their papers are, to that extent, fatally defective: see Jack v Mushipe NO & Ors HH318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods, as set out in the Notice of Seizure dated 14th December 2016, be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.

View Appeal
HH54-18 : THE SHERIFF FOR ZIMBABWE vs ROBERT TINDWA and INSTITUTE OF MINING RESEARCH
Ruled By: CHITAKUNYE J

This is an application pursuant to the provisions of Rule 205A as read with Rule 207 of the High Court Rules 1971.

On 23 March 2015, the judgement creditor obtained judgment against Westcott Speciality Chemicals (Pvt) Ltd (hereinafter referred to as the judgement debtor) in the sum of $24,421 in HC1566/15.

Pursuant to the judgment, the judgment creditor instructed the applicant to attach the judgment debtor's property at its principal registered office at number 187 Munhondo Street, Ruwa.

When the applicant attended at the stated address, he failed to attach any property as the property he found had already been attached in another matter. The applicant later made a nulla bona return, the import of which was that there was nothing to attach.

The judgment debtor had apparently ceased operating from that address when its property was attached and had left no forwarding address.

Upon its investigations, the judgment creditor discovered that the judgment debtor was now operating from No.5 Westcott Road, Mt Pleasant - this is the claimant's address as well.

It also discovered, that, the claimant was the director of the judgment debtor as well as its company secretary.

The judgement creditor was of the view, that, the claimant was the alter ego of the judgment debtor and so instructed the applicant to attach the claimant's immovable property, namely, Stand 262 Mount Pleasant Township 9 of Lot 50 of Mount Pleasant, Harare also known as No.5 Westcott Road, Mt Pleasant.

Consequent upon the attachment, the claimant advised the applicant, in terms of Rule 205A of the High Court Rules, that the property was owned by him and not the judgment debtor, hence these interpleader proceedings.

From the papers filed of record and submissions made, it is common cause that the attached property is registered in the claimant's name. It is thus the claimant's property.

The judgment creditor's position was that the claimant is merely the alter ego of the judgement debtor and that it should be allowed to realize its dues from that property as the claimant and judgment debtor are one.

The judgment creditor thus sought the lifting of the corporate veil so that the real person behind the company is made to account for the debt.

The claimant, on the other hand, contended that he is not an alter ego of the debtor and that he is a separate entity from the judgment debtor which is a registered company. He is only one of the four directors of the company. He thus contended, that, there is no justification for lifting the corporate veil.

The claimant also contended, that, in terms of section 318(1) of the Companies Act [Chapter 24:03] the judgement creditor was required to first make an application to the High Court for the lifting of the corporate veil wherein it must prove that the business of the company was being carried on recklessly, with gross negligence, or with the intent to defraud any person, or for any fraudulent purpose.

The first issue is whether or not the judgment creditor ought to have first sought the lifting of the corporate veil, in terms of section 318(1) of the Companies Act, before attaching the property, as contended by the claimant.

It is pertinent to note, that, section 318(1) of the Companies Act is under Part V of the Companies Act. That part deals with winding up and judicial management of companies, and it provides that:

“(1) If at any time it appears that any business of a company was being carried on —

(a) Recklessly; or

(b) With gross negligence; or

(c) With intent to defraud any person or for any fraudulent purpose;
the court may, on the application of the Master, or liquidator or judicial manager or any creditor of or contributory to the company, if it thinks it proper to do so, declare that any of the past or present directors of the company or any other persons who were knowingly parties to the carrying on of the business in the manner or circumstances aforesaid shall be personally responsible, without limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.”

Given the above provision, the claimant contended that the judgement creditor ought to have applied separately for the lifting of the corporate veil before attaching the property. The failure to do so entails that this application should not be heard till section 318(1) of the Companies Act has been complied with.

The judgment creditor, on the other hand, argued, that, it is not in every case that a judgement creditor must first proceed in terms of section 318 of the Companies Act; each case must be treated on its own basis.

In any case, the procedural failure to seek the piercing of the veil of incorporation before attaching the property should not be fatal to the present matter. The circumstances of this case warranted that the matter be heard and be decided without the need for fresh proceedings in terms of section 318 of the Companies Act.

It must be decided on the substance and not on the form.

The question is thus: is it procedurally necessary for a judgement creditor to have obtained a prior court order lifting the corporate veil before attempting to attach the claimant's property?

It is pertinent to refer to the words of SMALLBERGER JA in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790…, where, in dealing with the issue of piercing the corporate veil where another remedy was available, the learned judge stated, inter alia, that:

“In principle, I see no reason why piercing the corporate veil should necessarily be precluded if another remedy exists…,.; if the facts of a particular case otherwise justify the piercing of the corporate veil, the existence of another remedy, or the failure to pursue what would have been an available remedy, should not, in principle, serve as an absolute bar to a court granting consequential relief…,.

Whatever laxity or 'fault' there may have been on the part of the appellant in failing to pursue its rights under the doctrine of notice pales into insignificance compared to the impropriety of Lubner's conduct. Yet, respondents seek to rely upon such failure to deny the appellant relief. Policy considerations dictate that they should not be permitted to do so. In the circumstances, the appellant's failure to pursue its remedy under the doctrine of notice does not, in my view, operate as a bar to the relief it seeks.”

In Deputy Sheriff v Trinpac Investments (Pvt) Ltd and Anor 2011 (1) ZLR 458…, PATEL J…, alluded to the above observations and stated that:

“…, while these observations may not be directly pertinent to the question at hand, they certainly fortify the principle, that, mere procedural technicalities should not be allowed to frustrate or impede the effective satisfaction of a just claim. In any event, I see no logic or practical reason in requiring the judgement creditor to institute fresh proceedings in this court to pierce the corporate veil in circumstances where those proceedings would entail the same conclusion that I have reached earlier.”

In casu, I am of the view that the contention that the judgement creditor should have first obtained a court order lifting the corporate veil, in terms of section 318(1) of the Companies Act, is not sustainable.

If, as aptly noted in Deputy Sheriff v Trinpac Investments (Pvt) Ltd and Anor 2011 (1) ZLR 458, the facts are such as enable the court to make a decision, then, surely, why should the judgement creditor be required to start fresh proceedings for lifting of the corporate veil?

I do not think, that, in enacting that section, the legislature intended such a scenario.

The claimant's counsel could not cite any authority to the effect that failure to seek the lifting of the corporate veil, in terms of section 318(1) of the Companies Act, is a bar to a party seeking the lifting of the corporate veil through another procedure.

Clearly, the issue of lifting or piercing the corporate veil can be determined in the present proceedings.

The next issue for determination is whether or not the corporate veil should be lifted.

It is a cardinal principle of Company Law that a company is a separate legal entity from its members: see Saloman v Saloman and Co. Ltd (1897) AC 22 (HL).

It is also trite, that, the courts are reluctant to pierce the corporate veil, as to do so would negate or undermine the policy and principles that underpin the concept of separate corporate personality and its legal consequences.

There are, however, exceptions that have of late been alluded to as justifying the piercing of the corporate veil.

The veil of incorporation may be pierced where there is proof of fraud, dishonesty, or other improper conduct in the establishment or use of the company or in the conduct of its affairs.

In T Sibanda v H M Sibanda SC07-14…, GWAUNZA JA aptly noted that:

“While it is accepted, that, there are no hard and fast rules on the circumstances that justify the lifting or piercing of the corporate veil, with each case generally having to depend on its own facts and merits, I find this dictum from the case of Mkombachoto v Commercial Bank of Zimbabwe & Anor 2002 (1) ZLR 21 at p26D-C to be apposite;

'In my view, the court has no general discretion to disregard the company's separate legal personality whenever it considers it just to do so. The court may 'lift the veil' only where otherwise as a result of its existence, fraud would exist or manifest justice would be denied.'”…,.

A further illustration of the exceptions may be noted in Deputy Sheriff v Trinpac Investments (Pvt) Ltd and Anor 2011 (1) ZLR 458 wherein court held, inter alia, that:

“While the cardinal principle of Company Law is that a company is a separate entity distinct from its members, there are well established exceptions to the principle, grounded in policy considerations.

When the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association.

When the corporation is the mere alter ego or business conduit of a person, it may be disregarded.

Where a corporation is organised or maintained as a devise in order to evade an outstanding legal or equitable obligation, the courts, even without reference to actual fraud, refuse to regard it as a corporate entity.

Where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The court would then be entitled to look to substance rather than form in order to arrive at the true facts, and, if there has been a mis-use of corporate personality, to disregard it and attribute liability where it should rightly lie. Each case would have to be considered on its merits.”

Further, in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790…, SMALLBERGER JA aptly noted that:

“The law is far from settled with regard to the circumstances in which it would be permissible to pierce the corporate veil.

Each case involves a process of enquiring into the facts, which, once determined, may be of decisive importance: and, in determining whether or not it is legally appropriate, in given circumstances, to disregard corporate personality, one must bear in mind 'the fundamental doctrine that the law regards the substance rather than the form of things — a doctrine common, one would think, to every system of jurisprudence and conveniently expressed in the maxim plus valet quod agitur quam quod simulate concipitur:' Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 547.”

What should exercise the court's mind is whether, on the facts or evidence placed before it, the corporate veil should be lifted in the interests of justice, failure of which manifest justice will be denied.

Courts must not be seen to be shielding proven fraudsters or deceitful actors who seek to avoid personal liability by hiding behind the mask of corporate veil.

The facts which the creditor alluded to, as justifying the lifting of the corporate veil, include the following:

(i) The judgement debtor had its property attached in another matter, hence, when the applicant went to attach property in the matter in question he found nothing to attach and that the debtor had ceased operating from its registered office. There was no notification of change of address. There was no change of address at the companies registry; the judgment creditor had to carry out its own investigations to locate where the debtor was now operating from.

(ii) The claimant, whilst being one of the four directors of the judgement debtor, was the only director who had been dealing with the creditor; he was the contact person and no other; besides being the director, he was also the company secretary; it is the claimant who would appear in all meetings between the parties to discuss their business dealings.

In short, the judgment creditor only knew the claimant as the representative of the judgment debtor. Efforts to contact other directors who are indicated on the CR14 form yielded no response. Thus, the only contact with the judgment debtor was the claimant.

(iii) Another pointer to the claimant being the alter ego is that even the debtor's letter heads have the claimant's email address only.

(iv) Further, in his letter of 21 September 2012, attached to the creditors papers, the claimant undertook to pay the debt in these words:

“As I stated to you, we want to have the matter settled, I am proposing to have the full amount ($24,421) paid on or by October 31, 2012.”

Clearly, he was the one proposing and undertaking to pay as the one in control.

It is pertinent to note that most of these facts were not denied.

I did not hear the claimant to deny, that, in all the dealings with the judgment creditor he was the contact person and that the debtor's letter-heads in fact only bore his e-mail address and no other.

The claimant did not deny that when the debtor relocated from 187 Munhondo, Ruwa it did not notify anyone or change its registered office address at the companies registry.

There was no denial that the judgment creditor had to do its own investigations to discover that the judgment debtor was now operating from the claimant's residential address.

The judgment debtor was safely tucked away at the claimant's address and the claimant was busy operating the company business from his residence.

There is no doubt that the claimant has been running the company, even from his residential address, as his company. He is the face of the company and is fully conversant with the goings on in the company.

The impression one gets from the above facts is that the claimant was the company and the company was the claimant, the two were, in fact and in truth, inseparable. The claimant was in full control of the company. The separateness between the claimant and the company has not been maintained in operating the business.

Indeed, as noted from the claimant's papers and submissions, no averments were made on the whereabouts of other directors or properties for the judgment debtor - if at all it existed separate from the claimant.

The claimant hoped to evade liability by hiding behind the guise of the debtor being a company.

It is my view, that, there is some element of dishonesty in the manner the claimant operated the company and attempted to evade liability. He just could not own up and pay what was due to the judgment creditor. Manifest injustice will occur if the claimant is allowed to get away with such a scheme. He clearly must be personally made to account for the debt in question.

This is a case where the interests of justice require that the veil of incorporation be lifted to enable the judgement creditor to recover its dues.

I am of the view, that, the manner in which the claimant attempted to avoid liability, despite the indisputable facts on his role in the company, calls for costs on the higher scale.

The applicant and judgement creditor have been put to great expense when the noble thing would have been for the claimant to simply arrange a payment plan for the debt and save his property from being sold.

Accordingly, it is hereby ordered that:

1. The claimant's claim to a certain piece of land situate in the district of Salisbury, called Stand 262 Mount Pleasant Township 9 of Lot 50 of Mount Pleasant, measuring 4,144 square meters dated 11 March 1988, also known as 5 Westcott Road, Mount Pleasant, Harare placed under attachment in execution of judgement HC1566/15 is hereby dismissed.

2. The Notice of Intention to Sell Immovable Property in Execution, dated 7 January 2016, both of which were issued by the applicant, are confirmed and the property stated therein is declared executable.

3. The claimant is to pay the judgement creditor and applicant's costs on a legal practitioner and client scale.

SC25-14 : DAVID GOVERE vs ORDECO (PRIVATE) LIMITED and REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA

At the beginning of the hearing of this matter, counsel for the appellant sought to introduce a point of law, pertaining to the validity of the proceedings in the court below, as a new ground of appeal.

For the reasons given at the hearing, we declined the application.

Thereafter, following argument on the merits of the appeal, the Court unanimously dismissed the appeal with costs - except in relation to the fifth ground of appeal.

The reasons for our decision are as follows:

BACKGROUND

This is an appeal against the whole judgment of the High Court in Case No. HC9257/12 handed down on 5 June 2013.

Prior to that judgment, on 8 November 2011, the High Court granted an order by consent in Case No. HC3159/11. In terms of that order, the company known as Coldrac (Pvt) Ltd t/a Tacoola Beverages (hereinafter referred to as “Coldrac”) was required to pay the first respondent its outstanding rentals, operating charges, and wasted costs, totalling US$112,000, in 13 monthly instalments commencing in December 2011.

The appellant, who was a party to those proceedings, was absolved from the instance.

Following the failure by Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) to meet its payment obligations, the first respondent applied to the High Court for an order, in terms of section 318 of the Companies Act [Chapter 24:03], declaring the appellant personally liable for the judgment debt of Coldrac.

The appellant admitted that he was a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) between 2003 and 2007, in what he described as an unofficial capacity, and that he had acquired 80% of the shareholding in Coldrac.

However, the relevant CR14 forms filed with the Registrar of Companies did not reflect his directorship in Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac).

The court a quo found that the appellant held himself out as a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac), both through the earlier consent order, and by virtue of the continuing tenancy with the first respondent.

He was therefore estopped from relying on the failure to comply with the relevant statutory requirements to furnish proper updated records and returns.

Moreover, he had failed to notify the Registrar of Companies, and Coldrac (Pvt) Ltd t/a Tacoola Beverages itself, of any resignation as a director and was therefore still bound by his duties as director in terms of section 187(7) of the Companies Act.

Consequently, because he carried on the business of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) recklessly, and with intent to defraud, the court held that he was not protected by limited liability and was liable for the company's debts under section 318(1) of the Companies Act.

He was accordingly ordered to pay the claimed amount of US$112,000 together with interest and costs on a legal practitioner and client scale.

In the event of his failure to pay, the first respondent was entitled to execute the order for payment against his two immovable properties.

ISSUES FOR DETERMINATION

The Notice of Appeal filed of record contains five grounds of appeal. At the hearing of the matter, counsel for the appellant conceded, that, the second ground of appeal referred to the wrong section of the Companies Act and that the third ground, as it was framed, was utterly nonsensical.

Therefore, he quite properly abandoned both grounds of appeal.

In the event, the principal issue for determination is whether the court a quo misdirected itself by finding that the appellant was a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) at the material time.

The remaining two issues relate to the propriety of the order for special execution of the appellant's properties and the award of costs on a higher scale.

DIRECTORSHIP OF COMPANY

In paragraph 6 of his opposing affidavit, the appellant admits that he was a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) between 2003 and 2007 “although unofficially.”

The import of this qualification is not at all clear for the simple reason, that, it is not recognised in Company Law or corporate parlance. Be that as it may, it is common cause that there is no CR14 return confirming the appellant's position as a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac).

However, the relevance of that omission appears to be outweighed by the documentary evidence adduced in the court below:

(i) Firstly, there is a letter dated 17 May 2010, from Tacoola Beverages to the first respondent's estate agent, setting out a payment plan for the repayment of its outstanding debt.

(ii) Secondly, there is a company resolution, dated 10 June 2011, made by Coldrac (Pvt) Ltd t/a Glendale Springs.

Both documents clearly identify the appellant as a company director.

This accords with the requirements of section 188(1) of the Companies Act with respect to the details of directors names to be included on all corporate business letters.

On the available evidence, therefore, there can be no doubt that the appellant represented or held himself out as a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) and its trading subsidiaries at the relevant time.

Consequently, third parties dealing with him were entitled to rely upon that representation for the purposes of legal liability in terms of section 12 of the Companies Act (which codifies the long established Turquand Rule).

In any event, even if it were to be accepted that the appellant was not a director of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac), this would not absolve him from personal responsibility for the company's debts and liabilities under section 318(1) of the Companies Act.

This is because that provision extends personal liability not only to “the past or present directors of the company” but also to “any other persons who were knowingly parties to the carrying on of [its] business” recklessly or with gross negligence or with intent to defraud.

It follows from all of the foregoing, that, the principal ground of appeal is utterly devoid of merit and cannot be upheld.

EXECUTABILITY OF IMMOVABLES

As I have already indicated, the court a quo granted an order entitling the first respondent to execute the order for payment in the sum of US$112,000 against the appellant's immovable properties, in the event that he failed to pay that sum.

Counsel for the appellant argues, that, an order for special execution against immovables is normally only granted for preferential or secured creditors, such as mortgage bond holders. His further submission in that regard is that execution must first be applied against the judgment debtor's movables before it can be effected against his immovables.

He relies for this proposition on Rule 326 of the High Court Rules.

In the present matter, it is common cause that there was no nulla bona return in respect of the assets of Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) and no attempted attachment of the appellant's movables.

The order of the court a quo, so it is contended, entitles the first respondent, without any qualification, to execute against the appellant's immovables, thereby circumventing the requirements of Rule 326 of the High Court Rules.

I am unable to agree with that contention for the simple reason, that, the order for execution granted by the court a quo only comes into operation in the event that the appellant fails to pay the judgment debt.

The order is clearly conditional and contingent upon such failure.

Therefore, the appellant is perfectly at large to tender his movables in satisfaction of the judgment before any process for the execution of his immovables is initiated.

In any event, the interpretation of Rule 326 of the High Court Rules propounded by counsel for the appellant is clearly not supported by the wording of that Rule. It deals with the attachment of immovable property in the following terms:

“It shall not be necessary to obtain an order of court declaring a judgment debtor's immovable property executable or to sue out a separate writ of execution in order to attach and take in execution the immovable property of any judgment debtor, but, where so desired, the judgment creditor may sue out one writ of execution for the attachment of both movable and immovable property:
Provided that the sheriff or his deputy shall not proceed to attach in execution the immovable property of the judgment debtor unless and until he has, by due inquiry and diligent search, satisfied himself that there is no or insufficient movable property belonging to the judgment debtor to satisfy the amount due under the writ.”

First and foremost, the Rule patently does not, as is contended for the appellant, differentiate as between secured and unsecured creditors. It applies to both without distinction.

Secondly, the plain meaning of this Rule is that the judgment creditor has the option to sue out a separate writ of execution for the attachment of immovable property or a single writ for the attachment of both movable and immovable property.

In either event, before proceeding to attach immovable property, the sheriff or his deputy is enjoined to satisfy himself that the judgment creditor does not own any, or has insufficient movable property to satisfy the judgement debt.

For the above reasons, the fourth ground of appeal cannot be sustained and must be dismissed.

SCALE OF COSTS

The fifth and final ground of appeal is that the court below erred in ordering the first respondent to pay the costs of suit on a legal practitioner and client scale.

In this regard, the court relied upon the fact, that, the parties had already agreed to an award of costs on a higher scale as against the first respondent in the earlier order by consent.

That order, granted in Case No. HC3159/11 on 8 November 2011, clearly cannot be applied in respect of any subsequent costs incurred by the first respondent in later proceedings.

More pertinently, the award of costs is imposed as against Coldrac (Pvt) Ltd t/a Tacoola Beverages (Coldrac) per se and does not extend to the appellant himself.

In the premises, as was properly conceded by counsel for the first respondent, the punitive award of costs made by the court below was improper and cannot be sustained.

It must therefore be set aside.

For all of the above reasons, the appeal was dismissed with costs, except in relation to the fifth ground of appeal.

Accordingly, the decision of the court a quo is upheld in its entirety, save for paragraph 3 of the court order, which is set aside and substituted as follows:

“3. The first respondent shall pay the costs of this application on the ordinary scale.”

prev 1 2 3 next

Back Main menu

Law Portal
Zimbabwe

Debt re: Security, Executability of Assets, Jus In re Aliena, Parate Executie or Summary Execution & Pactum Commissorium

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED
Ruled By: MUREMBA J

HH484-14 : L.M.S. TIMBERS (PVT) LTD and LUKA PHAKATHI vs THE SHERIFF OF ZIMBABWE and PEOPLE'S OWN SAVINGS BANK and SETH CHIGODORA
Ruled By: MATHONSI J

HH39-15 : THE SHERIFF OF THE HIGH COURT and KWEKWE CONSOLIDATED GOLD MINES (PVT) LTD vs MINISTER OF HIGHER AND TERTIARY EDUCATION N.O (Representing ZIMBABWE MANPOWER DEVELOPMENT)
Ruled By: MANGOTA J

HH378-20 : THE SHERIFF FOR ZIMBABWE vs FRANK HUMBE and DESMOND MUCHINA
Ruled By: CHINAMORA J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE
Ruled By: TSANGA J

View Appeal
HH259-17 : THE SHERIFF OF THE HIGH COURT vs GENET MINING (PROPRIETARY) LIMITED and PUNGWE MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL
Ruled By: TSANGA J

HH17-15 : THE SHERIFF OF HIGH COURT vs FBC BUILDING SOCIETY and WAYMARK INVESTMENTS (PVT) LTD and KREAMORN INVESTMENTS (PVT) LTD
Ruled By: NDEWERE J

HH160-15 : THE SHERIFF OF THE HIGH COURT and STEPHEN MUTUMHE vs RICHARD CHITAMBO
Ruled By: MTSHIYA J

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MATHONSI J

HH12-15 : FIDELITY PRINTERS AND REFINERS (PVT) LTD vs LAZARUS S.C. MWALE
Ruled By: NDEWERE J

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

HB125-18 : THE SHERIFF OF ZIMBABWE - APPLICANT vs CORESOIL MINING PL (Represented by Kelvin Kaguru) - CLAIMANT and KUSAFUNGA KAGURU - JUDGMENT DEBTOR and ESTER MOYO (NEE KELLIE) - JUDGMENT CREDITOR
Ruled By: MAKONESE J

View Appeal
HH54-18 : THE SHERIFF FOR ZIMBABWE vs ROBERT TINDWA and INSTITUTE OF MINING RESEARCH
Ruled By: CHITAKUNYE J

SC25-14 : DAVID GOVERE vs ORDECO (PRIVATE) LIMITED and REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA

Categories

Law Portal Zimbabwe

Debt re: Security, Executability of Assets, Jus In re Aliena, Parate Executie or Summary Execution & Pactum Commissorium

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN Ruled By: DUBE J

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED Ruled By: MUREMBA J

HH484-14 : L.M.S. TIMBERS (PVT) LTD and LUKA PHAKATHI vs THE SHERIFF OF ZIMBABWE and PEOPLE'S OWN SAVINGS BANK and SETH CHIGODORA Ruled By: MATHONSI J

HH39-15 : THE SHERIFF OF THE HIGH COURT and KWEKWE CONSOLIDATED GOLD MINES (PVT) LTD vs MINISTER OF HIGHER AND TERTIARY EDUCATION N.O (Representing ZIMBABWE MANPOWER DEVELOPMENT) Ruled By: MANGOTA J

HH378-20 : THE SHERIFF FOR ZIMBABWE vs FRANK HUMBE and DESMOND MUCHINA Ruled By: CHINAMORA J

View Appeal HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS Ruled By: CHIKOWERO J

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE Ruled By: TSANGA J

View Appeal HH259-17 : THE SHERIFF OF THE HIGH COURT vs GENET MINING (PROPRIETARY) LIMITED and PUNGWE MINING (PRIVATE) LIMITED Ruled By: HUNGWE J

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL Ruled By: TSANGA J

HH17-15 : THE SHERIFF OF HIGH COURT vs FBC BUILDING SOCIETY and WAYMARK INVESTMENTS (PVT) LTD and KREAMORN INVESTMENTS (PVT) LTD Ruled By: NDEWERE J

HH160-15 : THE SHERIFF OF THE HIGH COURT and STEPHEN MUTUMHE vs RICHARD CHITAMBO Ruled By: MTSHIYA J

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: MATHONSI J

HH12-15 : FIDELITY PRINTERS AND REFINERS (PVT) LTD vs LAZARUS S.C. MWALE Ruled By: NDEWERE J

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION Ruled By: MUTEMA J

HB125-18 : THE SHERIFF OF ZIMBABWE - APPLICANT vs CORESOIL MINING PL (Represented by Kelvin Kaguru) - CLAIMANT and KUSAFUNGA KAGURU - JUDGMENT DEBTOR and ESTER MOYO (NEE KELLIE) - JUDGMENT CREDITOR Ruled By: MAKONESE J

View Appeal HH54-18 : THE SHERIFF FOR ZIMBABWE vs ROBERT TINDWA and INSTITUTE OF MINING RESEARCH Ruled By: CHITAKUNYE J

SC25-14 : DAVID GOVERE vs ORDECO (PRIVATE) LIMITED and REGISTRAR OF DEEDS Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA

Categories

Your Donation.

Law Portal
Zimbabwe

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED
Ruled By: MUREMBA J

HH484-14 : L.M.S. TIMBERS (PVT) LTD and LUKA PHAKATHI vs THE SHERIFF OF ZIMBABWE and PEOPLE'S OWN SAVINGS BANK and SETH CHIGODORA
Ruled By: MATHONSI J

HH39-15 : THE SHERIFF OF THE HIGH COURT and KWEKWE CONSOLIDATED GOLD MINES (PVT) LTD vs MINISTER OF HIGHER AND TERTIARY EDUCATION N.O (Representing ZIMBABWE MANPOWER DEVELOPMENT)
Ruled By: MANGOTA J

HH378-20 : THE SHERIFF FOR ZIMBABWE vs FRANK HUMBE and DESMOND MUCHINA
Ruled By: CHINAMORA J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE
Ruled By: TSANGA J

View Appeal
HH259-17 : THE SHERIFF OF THE HIGH COURT vs GENET MINING (PROPRIETARY) LIMITED and PUNGWE MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL
Ruled By: TSANGA J

HH17-15 : THE SHERIFF OF HIGH COURT vs FBC BUILDING SOCIETY and WAYMARK INVESTMENTS (PVT) LTD and KREAMORN INVESTMENTS (PVT) LTD
Ruled By: NDEWERE J

HH160-15 : THE SHERIFF OF THE HIGH COURT and STEPHEN MUTUMHE vs RICHARD CHITAMBO
Ruled By: MTSHIYA J

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MATHONSI J

HH12-15 : FIDELITY PRINTERS AND REFINERS (PVT) LTD vs LAZARUS S.C. MWALE
Ruled By: NDEWERE J

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

HB125-18 : THE SHERIFF OF ZIMBABWE - APPLICANT vs CORESOIL MINING PL (Represented by Kelvin Kaguru) - CLAIMANT and KUSAFUNGA KAGURU - JUDGMENT DEBTOR and ESTER MOYO (NEE KELLIE) - JUDGMENT CREDITOR
Ruled By: MAKONESE J

View Appeal
HH54-18 : THE SHERIFF FOR ZIMBABWE vs ROBERT TINDWA and INSTITUTE OF MINING RESEARCH
Ruled By: CHITAKUNYE J

SC25-14 : DAVID GOVERE vs ORDECO (PRIVATE) LIMITED and REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA