MATHONSI
J: In the execution
of his duties in pursuance of a writ of execution issued out of this court, the
applicant placed under attachment certain items of property. This was in the
matter involving Hope Tembo and Morayford Investments (Pvt) (Ltd)
and Arther Mutasa HC 8415/2011.
The property attached in execution was claimed by the claimant Heavy
Equipment Power Parts. As the judgment creditor did not admit the
claim, the applicant filed these interpleader proceedings in terms of Order 30
of the High Court rules.
The court application was served upon the claimant and the judgment creditor on
21 March 2012. Only the judgment creditor filed opposition but the claimant did
not do so. If it intended to oppose the matter it was required by rule 232 to
file opposition and in terms of rule 233 (3) the claimant is barred and has no
right of audience. Deputy Sheriff- Harare v Conview Energy ( Pvt) Ltd
7 Anor HH 250/12; Deputy Sheriff-Harare v Brownweel Marketing & Anor
HH243/2012.
The authorities I have referred to make it clear that the
matter is essentially unopposed as only the judgment creditor has an interest
in the matter. It should be noted that the applicant is only a vehicle through
which interpleader proceedings are brought to the court but has no interest in
the matter at all. It is for that reason that in the application rule 208
requires him to state in his founding affidavit that he “ claims no interest in
the subject matter in dispute other than for charges and costs.”
For that reason, where only one party files opposition to the interpleader
application, it is only that party which has an interest and accordingly the
matter is in essence unopposed. It should be set down on the unopposed roll.
To my mind it is undesirable and a complete waste of the court's time to place
such matters on the opposed roll. Both the deputy sheriff and the party who
files opposition ( be it the claimant or the judgment creditor) are unduly
detained having to wait several months for a set down on the opposed roll when
the matter should be disposed of on the unopposed roll. This court, which is
currently inandated with litigation and has a huge backlog should also not be
detained by such matters. Its time should be put to better use instead of being
made to sift through so many of these unopposed interpleader applications.
Legal practitioners and indeed, the registrar's office are therefore advised to
take note and direct such matters to the appropriate court.
Accordingly, it is ordered that;-
1. The claimant's claim be
and is hereby dismissed with costs on the scale of legal practitioner and
client.
Musimwa and Associates,
Applicant's legal practitioners
Muskwe & Associates,
Claimant's legal practitioners
IEG
Musimbe & Partners, Judgment Creditor's legal practitioners
