On 27 July 2010, the applicant instituted inter-pleader proceedings in Case No.HC5098/10 in which the applicant is cited as the claimant and the first to third respondents' are as in casu.

This matter is pending before this court.

The second respondent filed a supporting affidavit in which the second respondent alleges that the property listed in Annexure 'A' belongs to the applicant and not to the second respondent and that the first and third respondents have not respected the inter-pleader proceedings as they have continued to threaten to proceed with the seizure and sale of the goods belonging to the applicant.

The interim relief, or provisional order, sought by the applicant is premised on the grounds that proper inter-pleader proceedings have been filed in this court under Case No. HC5098/10. However, a perusal of the record in Case No. HC5098/10 clearly shows that the so-called inter-pleader proceedings filed by the applicant are so defective to such an extent that there are no valid inter-pleader proceedings pending before this court.

The applicant totally failed to comply with the provisions of Order 30 and specifically Rules 205A to Rule 208 which outline the procedure to be followed in instituting inter-pleader proceedings.

Counsel for the applicant conceded that she had no meaningful submissions to make in that regard.

I share the difficulty she had.

In my view, there is, therefore, no basis for this court to grant the provisional order in the absence of proper and valid inter pleader proceedings before this court. There are no such proceedings pending before this court. On that point alone the applicant's case cannot succeed....,. I accordingly make the following order –

1. The application is dismissed.

During the period extending from May 2009 to 19 January 2010, Boniface Tonhoma, the son of the first claimant, who was employed as a Bulk Bank Teller by Stanbic Bank in Bulawayo received various deposits from the customers of the bank and allegedly converted a total of $223,701= to his own use. He was arrested but was granted bail on 26 January 2010 pending his trial. He absconded shortly thereafter after reporting once to the police on 27 January 2010 and his whereabouts are unknown to the authorities.

During investigations, he had led the police to the recovery of the following property which he said was purchased using the money he had stolen from his employers:-

1 mini bus Mitsubishi registration number ABB 2885;

1 mini bus Coaster registration ABB 2884;

1 Isuzu bus registration number ABJ 6980;

1 Isuzu bus registration number ABJ 6972;

1 Ford Bantam registration number AAA 8778;

61 mattresses and 1 LG home theatre.

All the four buses were registered in the name of the first claimant within a short space of time. They were registered during the period 8 October 2009 and 5 January 2010. The two mini buses, registration numbers ABB 2884 and ABB 2885, were registered on 8 October 2009, while the two Isuzu buses, registration numbers ABJ 6972 and ABJ 6980, were registered on 30 December 2009 and 5 January 2010 respectively.

The Ford Bantam motor vehicle was allegedly bought by the second claimant from a company known as Professional Clearing (Pvt) Ltd of 6^th Floor Zimdef House, Fort Street, Bulawayo on 14 September 2009.

In an effort to recover its money, Stanbic Bank Zimbabwe Limited sued Boniface Tonhoma for the recovery of the US$223,701= he had stolen. Stanbic Bank Zimbabwe Limited obtained a default judgment in that sum with interest thereon a tempore morae from 19 January 2010 to date of payment plus costs of suit on an attorney and client scale.

A writ of execution was issued against the abovementioned movable property which the police had recovered following indications made by Boniface Tonhoma. The belief was that the property belonged to him.

It, however, turned out that the first claimant, Company White Space Sales (Private) Limited was claiming ownership of all the property except the Ford Bantam motor vehicle. It filed registration books for the vehicle it claimed to own. The two company's Directors are Boniface Tonhoma himself and his brother Clephas Tonhoma. Its' Principal Officer and Secretary is Boniface Tonhoma himself. The company exists on paper only.

The father of Boniface Albert Tonhoma claimed ownership of the Ford Bantam motor vehicle and filed an agreement of its sale reflecting the seller as Professional Clearing of 6^th Floor Zimdef House, Fort Street Bulawayo.

The Deputy Sheriff for Bulawayo filed this Interpleader Notice on 20 August 2010 but seems to have abandoned the mater as there was no appearance by her at the hearing. Her Interpleader Notice did not even have a draft order as required by the Rules of this Court - see Rule 227(3).

In the light of the documents filed of record, it would seem the vehicles belong to the company and Boniface Tonhoma's father. The property was registered into their names. Ex facie, it cannot be said that the property belongs to Boniface Tonhoma. It is a different proposition to say the property was bought using the money he stole from his employer which requires a separate investigation….,.

In the light of the foregoing, I do not consider this to be a proper matter for the relief of an Interpleader Notice and would dismiss it with costs being borne by the Bank as it was the one that encouraged the applicant to interplead by letter dated 25 June 2010.

In the discharge of his duties as Sheriff, the applicant placed under attachment certain items of property located at 162 The Chase, Mount Pleasant, Harare. This was in pursuance of a writ of execution issued by the judgment creditor in HC437/13 against Harare Kawasaki after he obtained judgment against that entity on 25 March 2013 in the sum of US$82,511=50.

All the goods placed under attachment in pursuance of the writ of execution have been claimed by the first claimant, who is a Director of the second claimant, an incorporation, as well as by the second claimant itself. This necessitated the institution of interpleader proceedings by the applicant in order to settle the conflicting claims given that the judgment creditor did not admit the claims made by the two claimants.

The background of the matter is that the judgment creditor entered into a written Consultancy Agreement with Harare Kawasaki, which was represented by the first claimant, on 12 November 2011 in terms of which he was engaged as a Sales Manager for a salary and commission, and was, inter alia, entitled to be paid “a share of 10% (ten percent) of net profit of Harare Kawasaki”.  The preamble to that Agreement reads:

“The following contract has been entered into by and between:

HARARE KAWASAKI

(represented by AW Mackintosh, Managing Director) of address:

162 The Chase

Mt Pleasant

Harare

(hereinafter referred to as 'The Company')

And

PUMULANI NCUBE

(represented by him), of address:

162 The Chase

Mt Pleasant

Harare

(hereinafter referred to as “The Consultant”)

Harare Kawasaki is a company incorporated in Zimbabwe, which undertakes Motorcycle sales, clothing and accessories for all aspects of motorcycling both for competition and leisure.”

In due course, the judgment creditor sued Harare Kawasaki under that Consultancy Agreement in case No. HC437/13 for payment of the sum of $82,511=50 aforesaid, due in terms of that Agreement. Judgment was granted in his favour on 25 March 2013. 

It is the execution of that judgment which has given rise to these inter-pleader proceedings.

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, the second respondent should have acted professionally and impartially. The second respondent's failure to act properly no doubt resulted in actual prejudice to the applicant. The applicant has an inherent right to prove its claim on the attached property. The only way of proving this is when the 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.

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 HC8415/2011.

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….,. 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 inundated 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.

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 & Anor HH250-12; Deputy Sheriff-Harare v Brownweel Marketing & Anor HH243-12.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.

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.

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.

This is an appeal against the whole judgment of the High Court in which the court dismissed the appellant's inter-pleader claim to goods attached by the fourth respondent on the first respondents' instructions.

BACKGROUND

On 1 September 2010, the first respondent, as the Seller, on the one hand and the second respondent, as the Purchaser, represented by the third respondent, on the other, entered into an Asset Purchase Agreement. In the Agreement, the Purchaser's domicilium citandi et executandi (domicilium) was given as 52 Eastern Drive, Greendale, Harare. Sometime in 2011, the first respondent instituted proceedings in the High Court against the second and third respondents for payment of US$38,200=. The claim arose from issues relating to the second and third respondent's performance of obligations due by one or other of them in terms of the Agreement.

In accordance with the domicilium citandi et executandi given in the Agreement, summons was served at 52 Eastern Drive, Greendale, Harare.

Note may be taken at this juncture that the address has also, in some instances, been referred to as No. 52 Harare Drive. It is common cause that the two addresses refer to one and the same premises.

Pursuant to the service of summons at the given domicilium, the second and third respondents entered appearance to defend through their legal practitioners, Mtetwa & Nyambirai. Eventually, the first respondent obtained judgment in its favour against the said respondents after which a Writ of Execution and a Notice of Seizure and Attachment of property were issued. These were served and the listed property was attached at the same address on 20 May 2014.

Consequent upon such attachment, the appellant notified the fourth respondent of her claim to the property itemised in the Notice of Seizure and Attachment.

The appellant's and the first respondent's claims, being adverse and mutually exclusive, the fourth respondent, as he was bound to do, filed an Interpleader Notice with the High Court in terms of Order 30 of the High Court Rules, 1971.

THE PARTIES IN THE HIGH COURT

In the interpleader proceedings before the High Court, the fourth respondent before this court was, in accordance with Order 30, the applicant. The appellant was the claimant. The first respondent was the judgment creditor with the second and third respondents being the judgment debtors. The Asset Purchase Agreement between the first and second respondents describes the second respondent thus:

“CALENDFEB (PVT) LTD (Hereinafter referred to as the Purchaser represented by Bertha Muzanenhamo, Her being duly authorised to do so) with its office located at 52 Eastern Drive, Greendale Harare.” (sic)

It may also be noted that the appellant is the third respondent's mother.

THE APPELLANT (CLAIMANT)'S CASE BEFORE THE HIGH COURT

The appellant claimed that she is the owner of the movable property that was under judicial attachment. It was also her contention that whilst the third respondent was her married daughter who resided elsewhere and not at the said address, she had nothing to do with the second respondent. She also claimed that the property that was attached did not belong to the third respondent. She also claimed that she, in fact, owns the immovable property, No 52 Harare Drive, Greendale, Eastlea, the address at which the movable property was attached, by virtue of it having been left to her by her late husband. She attached to her affidavit, copies of invoices that she claimed to be proof that the attached property belonged to her. It was also her stance that it was, in any event, not necessary for her to prove ownership of the attached movable goods or of the immovable property. She relied on the proposition that possession of movable property raises a presumption of ownership, citing in support thereof, the case of Zanberg v Van Zyl 1910 AD 258. 

She thus sought an order granting her claim to the attached goods.

THE FIRST RESPONDENT (JUDGMENT CREDITOR)'S CASE BEFORE THE HIGH COURT

The first respondent, on the other hand, opposed the granting of the order sought by the appellant. It contended that at all material times the second and third respondents held themselves to be resident at the given address, and, as a consequence, all process, notices and correspondence were served or directed at that address. This explains why a Notice of Appearance to Defend was filed on their behalf after summons was served at 52 Harare Drive.

The respondent also opposed the granting of an order in favour of the appellant on the further ground that the appellant had failed to explain why the second and third respondents had used her address as their domicilium citandi et executandi and how this could have resulted in the now alleged “mistaken” attachment. It submitted that the appellant had also not proffered an alternative address or addresses for the second and third respondents.

Furthermore, it was argued that the document that the appellant claimed to be proof of her ownership of the attached property was only an invoice. It was not a receipt and was therefore not proof of purchase as it was not proof of payment. It was contended that had the document been a receipt, proof of an electronic transfer or a cheque, it might have sufficed as proof of payment for the goods and ownership of them. 

It was contended that the appellant failed to prove ownership.

The first respondent argued that the Interpleader claim appeared to have been made merely to frustrate the judgment of the High Court in HC395/11. It also contended that the appellant had no bona fide claim to the property as she failed to prove ownership of the attached goods as well as ownership of No. 52 Harare Drive. 

It thus sought the dismissal of the appellant's claim.

THE JUDGMENT OF THE HIGH COURT

The learned Judge a quo dismissed the appellant's claim. In summary, her reasons were the following.  She found that as the appellant's claim was based on her being resident at, as well as being the owner of the premises where the property was found, proof of ownership of the immovable property would have assisted the court especially as there was no real proof of ownership of the movables by the appellant. Such proof of title to the immovable property would have disposed of the matter as to who was the owner of the movable property. She found that proof of title to the immovable property was not furnished and that there were no meaningful receipts produced to support the appellant's claim of ownership of the movable property.

The learned Judge commented on the appellant's attitude as not showing a serious approach to the resolution of the dispute.

The learned Judge noted, in addition, that the appellant did not provide the address of the third respondent whom she said did not reside at the domicilium citandi et executandi. There was no proof of the appellant's allegation that the third respondent did not reside at No.52 Harare Drive, Greendale, Eastlea.

She found, in the result, that there was no basis on which she could find in the appellant's favour and dismissed the claim.

GROUNDS OF APPEAL TO THIS COURT

The appellant's grounds of appeal against the High Court judgment are stated in the following terms:

“1. The learned judge erred, as a question of law and fact in (not) placing any weight on (the) submission made in heads of argument prepared by the appellant's counsel to the effect that the question of title and ownership of the immovable property situate at 52 Harare Drive, Greendale was not relevant.

2. More fully, the court ignored that the contestation amongst the parties was whether or not the Appellant owned the goods that had been attached by the judgment creditor, the 1^st Respondent herein.

3. Further, the Court ignored the fact that apart from conjecture and speculation there was no evidence on the papers to counter the Appellant's averments that:-

(a) She resides on the property in question on her own;

(b) The movable property attached was her own;

(c) The judgment debtor did not reside at the property in question and resided elsewhere with her family.

4. Further, the court ignored the fact the Appellant had been in possession of the property, and, therefore, her title could only be defeated by proper evidence and not conjecture.” (sic)

The appellant's prayer is for the appeal to be allowed with costs and for the order of the court a quo to be set aside and substituted with an order upholding her claim.

APPELLANT'S CASE BEFORE THIS COURT

It was submitted in heads of argument filed on behalf of the appellant, which submissions were persisted with in oral argument, that the court a quo misdirected itself in the following manner;

(i) Firstly, in holding that proof of ownership of the immovable property was relevant to the determination of the dispute.

(ii) Secondly, in finding that the appellant had refused to provide proof of ownership of the same.

It was submitted that by the production of the invoice, the appellant had proved ownership of “the substantial items that were covered by the attachment.” It was further argued that as the issue of ownership of the immovable property had not been put in issue, no obligation had arisen on the part of the appellant to prove the same. The contention was that the fact that the third respondent may have used her mother's residence as domicilium did not make her the owner of the appellant's immovable property. Thus, the first respondent had no right to cause the attachment of the appellant's property.

In his oral submissions, counsel for the appellant said that the court a quo misdirected itself in taking domicilium citandi et executandi to mean the address of residence.

In answer to a question posed to him by the court, counsel for the appellant conceded that there was no connection between the property that was attached and the invoice that was produced by the appellant in the proceedings in the court a quo. He then submitted that the judge in the court a quo could have exercised her discretion and referred to trial any matter on which she felt that there was no clarity.

He, however, prayed for the appeal to be allowed and for the decision of the court a quo to be set aside and substituted with an order in favour of the claimant (appellant in this matter) with costs.

FIRST RESPONDENT (JUDGMENT CREDITOR)'S CASE BEFORE THIS COURT

The first respondent's stance, in both its heads of argument and in oral argument, was that the court a quo was correct in its finding that the appellant had failed to discharge the onus of proving that the movable property attached by the fourth respondent belonged to her. Furthermore, that the court a quo had also justifiably found that the appellant failed to prove that the second and third respondents did not reside at and operate from the premises whose address they had provided as their domicilium citandi et executandi.

Counsel for the first respondent drew the court's attention to and highlighted the presumption that possession implies ownership as being applicable to the facts of the case.

She cited Phillips N.O. v National Foods Ltd & Anor 1996 (2) ZLR 532 (H) where CHATIKOBO J cited with approval the following dictum of DE VILLIERS CJ in Zandberg v Van Zyl 1910 AD 258…,:

“…., possession of a movable raises a presumption of ownership…,.”

She submitted that the second and third respondents presented their address as 52 Eastern Drive, Greendale, Eastlea, and that, consequently, that was the address at which summons was served resulting in the filing of a Notice of Appearance to Defend. Subsequently, the writ of execution was also served at the same address. She submitted that as the property was attached at the given address, it was attached whilst in the possession of the second and third respondents.

The first respondent's contention is that notwithstanding the manner in which the grounds of appeal have been couched, the appeal is, in fact, an appeal against findings of fact made by the court a quo. It contends that there was no misdirection on the part of the court a quo in making the findings of fact as the appellant failed to discharge the onus of proving ownership of either the movable or the immovable property. 

It urged the court to dismiss the appeal and uphold the decision of the court a quo.

THE ISSUE FOR DETERMINATION ON APPEAL

The issue for the Court to determine is whether the appellant established that the property that was attached by the fourth respondent belonged to her.

That question arises because of the evidence that the premises were in fact used as offices of the second respondent which entered into an agreement with the first respondent (the judgment creditor). In terms of the Agreement, the second respondent chose the said premises as its domicilium citandi et executandi.  As a result, the said address was the first port of call for the Sheriff - who was not directed to any other place. Significantly, and in addition, summons commencing action in the first respondent's claim had been served at the same address. Such service resulted in the entry of appearance to defend by the second respondent.

It is clear that from the time the summons was served to the time the property was attached, the affairs of the second respondent were being conducted from that address. Insofar as the relationship of the judgment creditor and the judgment debtor is concerned, the attached property was in the possession of the second respondent as that was its chosen address for service of any court process relating to any dispute arising from the interpretation and application of the Agreement.

The appellant's failure to prove her ownership of both the movable and the immovable property in the proceedings in the court a quo resulted in the dismissal of her claim to the attached property.

In so far as the relationship between the first and the second respondents is concerned, when it is viewed against the backdrop of the given address being the second respondent's domicilium, it was for the appellant to prove ownership of the property that was attached at that address. 

The onus was on her.

The law is clear on this point that a person who is in possession of a movable thing is presumed to be the owner of it. It is also a settled principle that where movable property is attached whilst in the possession of the judgment debtor at the time of the attachment, the onus of proving ownership rests on the claimant. 

See Bruce N.O. v Josiah Parkes & Sons (Rhodesia) Limited & Another 1971 (1) RLR 154.

The property in casu was attached whilst at the judgment debtor's address and therefore in its possession. Thus, the principle that counsel for the appellant cited from the case of Deputy Sheriff Marondera v Traverse Investments (Pvt) Ltd & Another HH11-03 was not offended against by the court a quo's placing the onus on the appellant, and, subsequently, finding that on the evidence placed before it, she had failed to discharge the onus. Counsel for the appellant quoted MATIKA J who stated therein:

“Mr. Biti correctly submitted that the onus of proving that the goods which were in possession of the judgment debtor at the time of attachment is on the first Claimant. The first Claimant must discharge the said onus on a balance of probabilities.”

In casu, the appellant failed to prove ownership of the property.

She did not produce any receipts that pertained directly to the attached property. The invoice related to only three items the nature of which suggests that they could not have been bought for domestic use, being very high end furniture. The first item on the invoice, a Blush marble glass table is not linked to the attached property. The second item, described as Annabelle black leather sofa with cushions, is also not linked to the attached property. While there is a six piece sofa on the list of property that was attached, the court cannot infer from that alone that it is the Annabelle that is referred to in the list of attached property. The same position pertains to what is described as “Essex deluxe sofa.” There is also no connection to the attached property.

The invoice was, in any event, not produced to prove ownership of movables but to prove her residence at the property, yet proof of residence would not suffice because it was possible for the three, the appellant, the second, and third respondents, to all live there. They all could also be tenants at the premises.

Even if the appellant had been found to have been the owner of the immovable property, there was also the possibility that she could have allowed her daughter and the company to operate from the premises. The appellant's statement that she had allowed the third respondent to use her address for purposes of service of documents only does not alter the fact that the given address was in fact the third respondent's domicilium citandi et executandi….,.

In addition, the Deputy Sheriff was not, at any stage, pointed to any other address.

The attached goods were thus found and attached at the second respondent's address and therefore in its possession. The execution of the writ was based on the acceptance that the premises belonged to the second respondent. It is on this basis that the onus fell on the appellant to prove her claimed ownership of the premises.

She failed to discharge the onus.

This is in accordance with what the court stated in Deputy Sheriff, Marondera v Traverse Investments (Pvt) Ltd & Anor HH11-03. In that light, the statement by MATIKA J, quoted earlier in this judgment, was not violated.

Viewed from another angle, it appears that the appellant's claim that she only allowed the third respondent to use her address for purposes of service of documents and notices only does not bear scrutiny. There is no explanation why the second and third respondents, who had previously actively defended the first respondent's claim, suddenly became dormant, invisible and inactive at the crucial stage of execution; that also being the stage when the third respondent's mother, the appellant, suddenly sprung to action to claim ownership of the attached property. She had allowed the second and third respondents the right to use the premises. She also did not call the daughter to confirm the alleged mistaken or wrongful attachment of the property.

In the circumstances, the court a quo cannot be faulted for finding against the appellant as it did. The appeal has no merit.

It is accordingly ordered as follows:

The appeal is dismissed with costs.

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 No.4716 Mainway Meadows, Prospect, Waterfalls.

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….,.

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 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

(c) The claimant's claim to the property.

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

(c) The legal practitioners of the claimant are also the debtor's legal practitioners.

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.

This is an appeal against the judgement of the High Court in interpleader proceedings arising from the attachment of mining equipment carried out by the first respondent (the Sheriff) at Mbada Mine….,.

It is trite law that in inter-pleader proceedings the claimant has to set out facts and evidence which constitute proof of ownership of the assets which are the subject of contention. This point was underscored in the case of Muzanenhamo v Fishtown Investments (Pvt) Ltd & Ors SC08-17, where it was held that the claimant must prove, on a balance of probabilities, that he owns the property.

The question to be answered in casu is whether, on a preponderance of probabilities, the appellants proved that they were the owners of the assets that they claimed.

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;

(c) Zimbabwe Revenue Authority Bills of Entry;

(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.

Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971 the applicant filed an inter pleader notice calling upon the claimant and judgment creditor to deliver particulars of their claims to the attached property as per Notice of Seizure and Attachment.

The applicant subsequently set down the matter applying for:-

“1. Directions as to the proper forum for determining its liability to each claimant and validity of the respective claims;

2. A decision as to the validity to each claimant and validity of the respective claims; and

3. An order authorizing the applicant to deduct the costs incurred subsequent to the date of this notice from the amount paid in.”

Prior to this, one Benedict Gilbert Moyo had filed with the applicant an “inter pleader affidavit” wherein he claimed that the attached motor vehicle, a Prado, registration number AAQ 6130, belongs to the Development Trust of Insiza (claimant). This notwithstanding the fact that he was driving the vehicle and kept it at his house where it was seized. He attached a copy of the motor vehicle's registration book as proof that the motor vehicle belongs to the claimant.

Upon being served with the interpleader notice, Benedict Gilbert Moyo filed a notice of opposition in his capacity as one of the trustees of the claimant. He swore and filed what he termed “respondent's opposing affidavit.” He attached the Trust Deed of the claimant and a letter of his appointment as a trustee. Further, he confirmed that under case number HC3679/15 the applicant served a Notice of Attachment and Seizure to remove the motor vehicle, which according to him belongs to the Trust. The registration book was again attached as “proof that the motor vehicle belongs to the Development Trust of Insiza.”

Finally, he contended that since the notice of seizure and attachment relates to his personal debt, it would be improper for the applicant to attach property of a party which is not part to the proceedings giving rise to the attachment.

One of the founding trustees of the claimant, one Ndumiso Mpofu, filed a supporting affidavit confirming Benedict Gilbert Moyo's averments that the property belongs to the claimant and that Benedict Gilbert Moyo, as a trustee, has “rights to use the property only on its business.”

The judgment creditor, through its Regional Manager, one Craig Follwell, filed an opposing affidavit opposing the claimant's claim on the following grounds:

In limine

1. There is no claimant before the court in that a trust has no locus standi in judicio at law notwithstanding that it is duly registered in terms of the laws of Zimbabwe.

2. The claimant's affidavit has been deposed to by one Benedict Gilbert Moyo who is an interested party in the present proceedings and also in the proceedings under case number HC3679/15, in that the judgment creditor is pursuing him for debt recovery pursuant to an order of this court, per MATANDA-MOYO J, attached as annexure A. As an interested party, he is automatically disqualified from litigating on claimant's behalf since it reveals double standards to wear two hats that of the claimant and that of the judgment debtor.

2. There is no record to confirm that Benedict Gilbert Moyo is a trustee of the claimant who has been authorized by the claimant to depose to the founding affidavit on behalf of the claimant.

On the merits, it was argued that since the registration book bears the warning “this registration book is not proof of legal ownership,” the claimant must go further in proving that it owns the vehicle. This is so in view of the fact that Benedict Gilbert Moyo has been using the vehicle for his own business at his farm in Bulawayo to transport his stock feed, milk and other farm produce and farming implements.

Further, the judgment creditor filed heads of argument wherein it relied on a number of decided cases….,.

For these reasons, it was argued that the claimant in casu is simply non-suited and the proceedings before this court are a nullity.

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 vehi