CHEDA J: On the 17th and 22 May
2011, this matter was heard by myself and I granted a provisional order. I have been asked to give reasons for that
decision and these are they.
This
is an urgent chamber application for a stay of execution. The background of this matter is that,
sometime in March 2011 first respondent caused an attachment of applicant's
vehicles in pursuance of a judgment debt against N & S Properties (Pvt)
Ltd. The vehicles in question were at
the time being used by Mr & Mrs Masuku of applicant. The attached vehicles are:
(1) a Mitshubishi Pajero
(2) a Toyota Vigo Single Cab, and
(3) a Mercedes Benz S 350.
The said motor vehicles are
registered under Alpha Motors who furnished proof of ownership and/or
registration books to second respondent.
In addition to this proof, applicant filed two inter pleader affidavits and a letter advising second
respondent that the motor vehicles did not belong to N & S Properties,
second respondent however, proceeded to attach them in execution of the said
judgment debt.
Second respondent totally ignored
the inter pleader affidavits and letter advising him of applicant's claim on
the attached property.
An
inter pleader is where a person faced with an adverse claim to property,
wherein, he claims no interest but is at the time in possession seeks to compel
the warring parties, that is, plaintiff and defendant to settle their dispute
without involving him/her in that dispute hence its claim of the attached
property.
Second respondent totally ignored
advice from applicant not to proceed with the attachment and proceeded to
advertise the sale in execution of a Toyota Vigo in the Chronicle of the 11th
May 2011.
Second respondent should not have
proceeded to advertise the property as soon as he became aware of applicant's
claim.
At that point, second respondent
should have filed interpleader summons.
The reason for an interpleader is to alert the warring parties, that,
ownership of the attached property is being challenged. As an officer of the court, second respondent
should have acted professionally and impartially. Second respondent's failure to act properly
no doubt resulted in actual prejudice to applicant
Applicant has an inherent right to
prove its claim on the attached property.
The only way of proving this is when second respondent avails that
opportunity by following the correct procedure regarding interpleader
proceedings. It is their right to be given a chance to prove their claim.
It
is for that reason that the provisional order was granted.
R. Ndlovu and Company,
applicant's legal practitioners
