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 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.

This is an appeal against the judgment of the High Court which dismissed the appellant's appeal against a decision of the Magistrates' Court. The latter judgment had dismissed the appellant`s interpleader claim to goods attached by the nineteenth respondent on the instructions of the first to seventeenth respondents. The goods were in the possession of the eighteenth respondent.

FACTUAL BACKGROUND

The appellant, NJZ Resources (HK) Limited, is a company incorporated according to the laws of Hong Kong. It is the subsidiary of a company called NJZ Group Holdings (Private) Limited ('NJZ Group'), which is duly registered in Singapore. The eighteenth respondent, Mine Mills Trading (Private) Limited ('Mine Mills'), is a company duly registered in Zimbabwe. The appellant avers that it was instrumental in the formation of Mine Mills Trading (Private) Limited, a company in which the NJZ Group holds 49 percent of the shareholding.

Among others, the three companies have two mutual directors, Michael Lai and Johannes Thormahlen.

Mine Mills was the judgment debtor in the Magistrates Court while the first to seventeenth respondents, who were its former employees, were the judgment creditors. They won an arbitral award against Mine Mills (Pvt) Ltd for payment of outstanding wages and salaries on 20 May 2014.

The nineteenth respondent is the Messenger of Court, Gweru who is cited in his official capacity.

The facts of this case can be summarised as follows:

Sometime in 2010, the appellant and Mine Mills (Pvt) Ltd entered into what they termed an 'Equipment Sales Contract' in terms of which the appellant sourced and Mine Mills bought from it, certain machinery and other equipment.

Clause 2 of the contract reads as follows, in part:

“Title and ownership of all imported equipment and any locally purchased equipment and assets including vehicles from loan/cash advances made by the seller to the buyer shall remain the property of NJZ Resources (HK) Limited until paid for IN FULL.”

It is not in dispute that Mine Mills (Pvt) Ltd breached the agreement by failing to pay the relevant purchase price. This prompted the appellant to file an application in the High Court under case number HC2111/13, seeking repossession of the property.

Before this matter was determined, the appellant filed an urgent chamber application for a provisional order seeking return of the property pending the determination of HC2111/13. The High Court, per BHUNU J…, found that it could safely be inferred from the evidence that the applicant had established that it was the owner of the property. He granted the provisional order on 9 October 2013.

Aggrieved by that decision, Mine Mills unsuccessfully appealed to this Court against BHUNU JA's provisional order. Thereafter, the directors of Mine Mills signed company resolutions to return the property to the appellant, resulting in the appellant withdrawing the main application under HC2111/13. The resolutions were signed from 13 May 2014 to 25 May 2014.

During this period, the judgment creditors won the arbitral award against Mine Mills (Pvt) Ltd. By the time the judgment creditors sought to enforce the award, some of the property had already been handed back to the appellant. The rest of the property is what was then attached by the Messenger of Court, leading to the interpleader proceedings being instituted by the appellant.

The Magistrates` Court dismissed the appellant`s claim on the basis that its assertion of ownership over the seized property was designed to defeat the judgment creditors` claim. The magistrate was of the view that the appellant and Mine Mills, being both subsidiaries of the NJZ Group, and run by the same people, would obviously protect the interests of the two companies through all means possible.

The appellant unsuccessfully noted an appeal to the High Court against the decision of the Magistrates` Court. The High Court found that manifest injustice would have been visited upon the judgment creditors had the Magistrates` Court not traversed the intricate relationship between the appellant, the holding company, NJZ Group, and Mine Mills (Pvt) Ltd. This was particularly so given the conduct of two mutual directors of the three companies. Notwithstanding that NJZ Group was not cited in these proceedings, the court expressed the view that the holding company, owning as it did 49 percent of Mine Mills, had an obligation to honour liabilities incurred by Mine Mills to the extent of its shareholding. The court a quo also upheld the magistrate's finding that the conduct of the mutual directors exposed the appellant`s claim as an act of connivance aimed at frustrating enforcement of the judgment creditors' award. This is evident from the following concluding remarks to its judgment:

“It is this conduct, where Michael Lai signed the original agreement (where the assets are the subject matter) in his capacity as buyer representing the judgment creditor (sic) in a transaction where his company (the appellant) was the seller, that makes the whole claim wreak (sic) of connivance. Upholding the claim would have resulted in manifest injustice as the behaviour of the directors clearly and largely defied the whole essence of the sanctity of the companies' separate legal personality. There was thus no misdirection by the court a quo on this point.”

ISSUES FOR DETERMINATION

The appellant was aggrieved by the decision of the High Court and noted this appeal on grounds that raised two main issues for determination, namely:

(i) Whether or not the appellant proved, on a balance of probabilities, that the property at the centre of the dispute was owned by it; and

(ii) Whether the property in question, if proved to belong to the appellant, was nevertheless executable on the basis that the NJZ Group, which owned 49 percent shareholding in Mine Mills (Pvt) Ltd, was the holding company of both parties.

These issues will be dealt with separately.

In inter-pleader proceedings, the issue to be determined is who, between the claimant and the judgment debtor, owns the property that has been attached.

The court's determination on that issue settles the matter.

Considerations that go beyond this determination, to provide a basis for nevertheless declaring the property concerned executable, clearly go beyond the scope of the dispute and are not legally sustainable….,.

To the extent that the court a quo premised its decision on considerations that went beyond the question of whether or not ownership of the property in question was proved to be the appellant's, it clearly misdirected itself. Such a decision cannot stand.

On 19 May 2016 we dismissed the appellant's appeal with costs. The appellant requested for reasons for judgment as early as 19 May 2016 but the request was not brought to our attention until 20 March 2017, this explains the delay. The reasons for our dismissal of the appeal are hereby furnished.

The appellant had its claim to property in interpleader proceedings instituted at the Magistrates' Court dismissed with costs. The appellant filed an appeal on the following grounds:

That the court a quo erred in:

1. Failing to appreciate that the appellant is the owner of the equipment/machinery and motor vehicles attached by the nineteenth respondent;

2. Failing to appreciate that the appellant and the eighteenth respondent are two different corporate and legal entities;

3. Disregarding the judgment of Hon Justice Bhunu (vide HC2136/13) wherein the High Court found that the appellant is the owner of the attached equipment/ machinery and motor vehicles;

4. Finding that the appellant's claim over the property was merely designed to defeat the judgment creditor's claim;

5. Finding that the Equipment Sales Contract and Short Term Loan/Financing Agreement between the appellant and the eighteenth respondent was fraudulent or a sham;

6. Failing to appreciate the grounds upon which the corporate veil should be pierced;

7. Failing to appreciate that the appellant and the eighteenth respondent are not wholly owned subsidiaries of NJZ Group Holdings Limited;

8. Failing to appreciate that NJZ Group Holdings Limited has no controlling interest in the eighteenth respondent, with its 49% shareholding therein;

9. Failing to appreciate that the operations of the eighteenth respondent were being run by its local directors, Charles Chisango and Kevin Makoni not their foreign counterparts;

10. Failing to appreciate that Minemills Trading (Pvt) Ltd, Charles Chisango and Kevin Makoni signed resolutions returning the equipment/machinery and the motor vehicles to the appellants because they had not paid anything for the same;

11. Finding that the resolutions signed by the eighteenth respondent, Charles Chisango and Kevin Makoni, returning the equipment/ machinery and the motor vehicles to the appellant, were fraudulent or sham;

12. Failing to appreciate that the attached equipment/machinery and the motor vehicles were sold to the eighteenth respondent by the appellant, and the former failed to pay the purchase price resulting in the latter taking legal action in the High Court;

13. Finding that the attached equipment/machinery and motor vehicles are liable to be sold in execution in respect of the judgement to which the appellant was not a party;

14. Failing to appreciate that the appellant is not liable to pay the salaries of the employees of the eighteenth respondent;

15. Failing to appreciate that the 1^st- 17^th respondents were not employed by, nor serving the interest of, the appellant, and that the appellant had not hidden the assets of the eighteenth respondent;

16. Failing to appreciate that the appellant instituted legal action in the High Court against the eighteenth respondent, claiming ownership of the equipment/machinery and the motor vehicles in March 2013, long before the salary dispute between the 1^st - 17^th respondents and the eighteen respondent had arisen;

17. Piercing the corporate veil; despite its finding that the appellant was not formed with deceptive intent; and

18. Piercing the corporate veil solely on the basis that Michael Lai and Thormahlen are directors for the appellant and eighteen respondent, and co-founders of NJZ Group Holdings Ltd and the appellant when it had found that the appellant was not formed with a deceptive intent.

WHEREFORE the appellant prays that:-

1. The judgment of the court a quo be set aside and substituted with the following:

“The claimant's claim of ownership over the attached equipment/machinery and motor vehicles be and is hereby granted with costs.”

2. The respondents shall pay costs of suit on a legal practitioner-client scale.

I find the grounds to be unnecessarily long, repetitive and not concise and precise as is demanded by the Rules. Most of the grounds could simply have been crystalised.

It seems that a change of lawyers by the appellant brought about realization that the grounds of appeal were unnecessarily extensive. The new lawyers crystallised the grounds of appeal in the heads of argument. The condensed grounds narrowed the issues for determination by the Appeal Court and were put as follows:

1. Whether or not the court a quo erred and misdirected itself in failing to appreciate that the attached equipment belonged to the appellant and therefore could not be sold in execution to satisfy a judgment debt against the 18^th respondent.

2. Whether or not the court a quo erred and misdirected itself in failing to appreciate that the appellant and the respondent were separate legal entities.

3. Whether or not the court a quo erred and misdirected itself in piercing the corporate veil where no such grounds for such a course of action existed.

The background facts of this matter are as follows:

The 1^st - 17^th respondents are employees of the 18^th respondent, Minemills Trading (Private) Limited (hereinafter called “Minemills Co.”).

The said employees, who are the judgment creditors, got an award for the payment of their salaries, and, in seeking execution, motor vehicles, machinery/equipment in the possession of the 18^th respondent, Minemills Trading (Private) Limited, were attached by the Messenger of Court. The appellant, through inter-pleader proceedings, claimed the assets but the court a quo dismissed the claim.

Ad Grounds 1, 3, 10, 12, 13, 16

These grounds pertain to averments on ownership.

Counsel for the appellant argued that as the assets belonged to the appellant, they could not be applied to satisfy the debts of the 18^th respondent, Minemills Trading (Pvt) Ltd. He argued that in another matter, NJZ Resources (HK) Limited v Minemills Trading (Pvt) Ltd HH341-13, where the applicant was seeking a provisional order, BHUNU J had found that;

“Considering that it is not in dispute that the applicant sourced the property and handed it over to the first respondent and it has not been paid anything, it can safely be inferred that the applicant has established that it is the owner of the property though the validity of the contract of sale is subject to debate.”

A reading of the judgment shows that Bhunu J found that the applicant (appellant in casu) had discharged the onus, on a balance of probabilities, that it had a prima facie case hence he granted interim relief. In my view, this cannot be taken to mean that the judgment bestowed or confirmed ownership.

Equally, Case No. HC2111/13, in which ownership was an issue, was withdrawn, which means the court never made a substantive finding on the issue of ownership of the assets. I am conscious of the argument that the directors and/or shareholders passed resolutions to return assets to the appellant in HC2111/13 but the judgment creditor was not privy to these arrangements.

I would agree with counsel for the respondents that the resolutions were a self-serving gesture by two of Minemills Trading (Pvt) Ltd's directors who happen to benefit in either the appellant company or the holding company. I find no misdirection by the court a quo in its finding that the dispute over ownership or the legality of the contract was never resolved by any court as the parties decided to do an out of court settlement.

Ad Grounds 2, 7, 8, 13, 14 15

The grounds speak to one issue; being the alleged failure by the court a quo to treat the appellant and Minemills Company as separate legal entities, which are not wholly-owned subsidiaries of the holding company.

As such, the appellant argues, the appellant was not legally obliged to pay employees of Minemills Company. Counsel for the appellant argued that the holding company had 49% shareholding in Minemills Trading so it had no controlling interest in the affairs of the judgment debtor.

It is common cause that the claimant and the judgment debtors are subsidiary companies of NJZ Group Holding Limited. The holding group holds 49% shareholding in the judgment debtor company. The court took cognizance of the fact that J Francios Thormahlen, a director in the holding company and in the judgment debtor, Minemills Company, together with Michael Lai, who is a director in the appellant whilst also a director in Minemills were privy to the fact that Minemills Company had a legal battle over salaries. This reasoning cannot be faltered where the respondents got an arbitral award on 20 May 2014 and the directors of Minemills Trading (Pvt) Ltd signed resolutions between 15 to 23 May 2014. Given that scenario connivance could not be ruled out.

I find merit in the court a quo's finding, that, whilst the companies are separate entities the actions of the claimant's director and his counterpart, point to the following facts;

(i) That directors were conflicted in the manner in which they handled the affairs of the companies involved in this dispute.

(ii) Third parties were prejudiced as a result of their conduct.

(iii) The third parties were not privy to the internal arrangements between the holding company and its two subsidiaries.

Whilst it is accepted that a holding company cannot be held liable for the debts of a subsidiary. See Regina Gumbo v Steelnent Zimbabwe (Pvt) Ltd and Another HB84-13, the court a quo did not advocate for the taking over or satisfying of Minemills Trading (Pvt) Ltd's debt by the holding company of the appellant. Its stance was simply that the assets had not been proved to belong to the appellant.

Ad grounds 4, 5, 6, 17, 18

These grounds pertain to the piercing of the corporate veil. The appellant argues that the facts, as presented, did not require piercing of the corporate veil. Fault is found in the court a quo's finding that:

“Although it cannot be stated that the company was incorporated with deceptive intent, it is however clear that the two subsidiaries are run by one and the same people who would obviously protect their interest at all means.”

In Mkombachoto v Commercial Bank of Zimbabwe Ltd & Anor 2002 (1) ZLR 21 (H)..., the court held that:

“The court may 'lift the veil' only where otherwise as a result only of its existence fraud would exist or manifest justice would be denied. See Botha Van Niekeck 1983 (3) SA 513 W at 522 – 24…,.”

For the purpose of disposing of the dispute in this matter, we did not find it necessary to dwell on the issue of the lifting of the corporate veil as no personal liability is sought to be imputed to the directors or shareholders of the companies involved. Clearly, manifest injustice was to result had the court not traversed the intricate relationship between the appellant, the holding company and Minemills Trading (Pvt) Ltd, the judgment debtor; moreso, looking at the conduct of the directors. The holding company, owning 49% of Minemills Trading (Pvt) Ltd, had an obligation to the honoring of liabilities in Minemills Trading (Pvt) Ltd to the extent of its shareholding. Its director, privy to the obligation, whilst wearing a different hat as director of Minemills Trading (Pvt) Ltd, handed over assets to the appellant. At the same time the appellant's director, in his capacity as the judgment debtor's director, handed over assets to his other company, the appellant.

It is this conduct, especially where Michael Lai signed the original agreement (where the assets are the subject matter) in his capacity as buyer representing judgment creditor in a transaction where his company (the appellant) was the seller, that makes the whole claim wreak of connivance. Upholding the claim would have resulted in manifest injustice as the behaviour of the directors clearly and largely defied the whole essence of the sanctity of the companies' separate legal personality. There was thus no misdirection by the court a quo on this point.

It is due to the aforegoing reasons that the appeal was dismissed with costs.

This was an interpleader. I dismissed the claimant's claim at the end of argument. The facts were these.

The applicant had placed certain goods under attachment in execution of a judgment obtained by the judgment creditor against the judgment debtor which was still outstanding. The claimant claimed that all the attached goods belonged to him, not the judgment debtor.

The attached goods comprised washing machines; a microwave; several carpets; several television sets and a stand; an office chair; several wall mirrors; a bedside cabinet; a study table; a play station [video game]; a fan; refrigerators; a garden suite and chair; a garden table and chairs; lounge suites; a coffee table; a radio and speakers; side tables; a dining room suite; a VCR and decoders; lamp shades; wall picture frames; dining room cabinet; a glass side table; sets of golf clubs and bar stools.

The goods were attached at an address in Rhodene, a low density suburb of Masvingo City.

The claimant claimed that the court only needed to look at the nature of the attached property to see that it was clearly household goods and personal effects that could not conceivably be assumed to be owned by the judgment debtor, a company. It was argued that the place of attachment was the claimant's place of residence and that the claimant was in possession of the goods when they were attached. In paragraphs 11 to 13 of his affidavit the claimant said:

“11. If First Respondent (the judgment creditor) is to execute, he [sic] should target specifically the assets held by Takataka Plant Hire (the judgment debtor), not me. I cannot lose my property to satisfy an alleged debt the Judgment Debtor would be liable for in its own capacity.

12. The attached property belongs to me, this fact is obviously apparent from the very nature of the good [sic] removed as seen on Annexure “A” (the Sheriff's inventory of attached goods). There is absolutely no link between the attached property and the Judgment Debtor.

13. Proof of my ownership of the items attached is evident from the nature of the property. The items attached are clearly household items.”

Developing the above argument further, counsel for the claimant singled out the play station video game, televisions, and the sets of golf clubs as clearly being such household items and personal effects as could not reasonably be expected to be owned by a company.

Counsel for the judgment debtor countered by saying the onus was on the claimant to prove ownership of the attached goods; that he could not do so by merely pointing to the nature and identity of the goods; that nothing stopped a company from owning televisions sets or golf clubs or video games; that the place at which the goods had been attached was the judgment debtor's registered office and place of business and that the claimant was its Director and “owner”.

For the law on the point the parties referred me to such cases as Phillips N.O. v National Foods Ltd & Anor 1996 [2] ZLR 532 [H]; Deputy Sheriff, Marondera v Traverse Investments [Pvt] Ltd & Anor HH11-03; Sheriff of the High Court v Mayaya & Ors HH494-15; and Sheriff of the High Court v Majoni & Ors HH689-15.

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.

In casu, certain salient facts were highlighted or brought to my attention. They were these. The address in Rhodene, at which the goods were attached, Stand 14 Protea Avenue, was at all times the address for service for the judgment debtor. Counsel for the judgment creditor said it was the judgment debtor's registered office and place of business. He produced no proof. But counsel for the claimant did not refute it. Instead, he stressed that it was actually the claimant's residence with his family. He claimed that in the Deeds Office the property was registered in the name of the claimant. But he produced no proof either, promising to provide the title deed later. That was not good enough. The inter-pleader had been at the instance of the claimant. He had had two chances: firstly, when he submitted an affidavit to the Sheriff which triggered the application. Secondly, when the Sheriff initiated the application and called upon both parties to file their notices of opposition within the requisite ten days. But all that the claimant kept saying was that the nature of the attached property showed that they were household goods and personal effects.

Another salient factor highlighted by counsel for the judgement creditor was that the writ of execution was one against both movable and immovable property. Stand 14 Protea Avenue above was one of two properties singled out for attachment and said to have been transferred to the judgment debtor. Counsel for the claimant had no meaningful response to that. If indeed the property was one transferred to the judgment debtor, and if in the writ the judgment creditor wanted it attached in execution, then it was probably registered in the name of the judgment debtor.

Some issues could easily have been proved. Details of the registered office of a registered company are filed in the Companies' Office. Proof of ownership of an immovable property is obtained from the Deeds Office. But, in casu, the parties were content to blitz each other and wear down the court with bald assertions and bare denials.

Counsel for the claimant's argument that one only needed to look at the nature of the attached property to see that they were household goods and effects and that therefore I should find that they belonged to the claimant was lame and insufficient. The argument did not rebut the presumption of ownership by the judgment debtor. Whilst the goods that he singled out to press home the point: video games; golf clubs and televisions sets, are ordinarily personal items for enjoyment by natural persons, nothing precludes juristic persons from owning such type of goods as well, including immovable properties, all for the personal or exclusive enjoyment by such of their personnel as may be entitled to such perquisites.

Counsel for the judgment creditor claimed the claimant was the soul and brains of the judgment debtor. Counsel for the claimant said there were other players. Characteristically, there was no proof either way. But it seemed more probable that the judgment debtor was the claimant's alter ego. At any rate, among the attached goods were an office chair; garden tables and chairs; a fan; toilet mirrors; refrigerators, and the like, goods that can ordinarily be found in company premises also.

In the end, I decided the case on the question of onus. It was on the applicant. Dismally it failed to rebut the presumption that the attached goods belonged to the judgment debtor. I gave an order in terms of the applicant's alternative draft as follows:

(i) The Claimant's claim to the property mentioned in Paragraph 3 of the Inter pleader Notice, which was placed under attachment in execution of [the] judgment in HC1148/15 is hereby dismissed.

(ii) The property attached in terms of [the] Notice of Seizure and attachment dated 6^th February 2018, issued by the Applicant, is hereby declared executable.

(iii) The Claimant [shall] pay the Judgment Creditor's and Applicant's costs.

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 16 January 2014.

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.

The first and second claimants were husband and wife respectively. The judgment debtor was the first claimant's mother, and, naturally, the second claimant's mother-in-law. The judgment creditor had a provisional sentence from this court against the judgment debtor for US$60,000=. It was in respect of that provisional sentence that the applicant herein, the Sheriff, had attached certain household goods for sale in execution.

The attachment of the household goods aforesaid was made at a certain house in the Harare suburb of Gunhill. The first and second claimants claimed that the attached goods did not belong to the judgment debtor, but to them. At their instance, the applicant instituted inter-pleader proceedings. At the end of the hearing, on 15 July 2015, I dismissed the claimants' claim. I gave my reasons ex tempore. However, the claimants' have requested a written judgment because they say they have appealed against my decision….,.

On the merits, the claimants' case was this.

Their mother (or mother-in-law), i.e. the judgment debtor, did not live at the Gunhill property. For her, the Gunhill property was just a convenient address for service. She lived and carried her business operations elsewhere. The claimants argued that it was not for them to say where the judgment debtor ordinarily lived. They said the judgment creditor knew, or ought to know, where the judgment debtor lived because they had been doing business together.

The claimants claimed that they lived at the Gunhill property themselves. The property was rented accommodation. As proof, the claimants produced a copy of a written lease agreement between themselves, as tenants, and one Kalister Christine Manyame-Tazarurwa as landlady. The lease agreement showed that it was signed at Harare on 23 September 2013. The lease period was three years from 1 October 2013 to 31 October 2016. So, actually that was three years and one month.

The claimants claimed that all the movable assets at the Gunhill property, including those placed under attachment by the applicant, belonged to them. As proof, the applicants produced a copy of an invoice on the letter-head of a company or outfit called Zimbrellas (Pvt) Ltd. The invoice was dated 20 September 2011. It was in the name of the second claimant. On it was a list of items, largely household goods, with prices listed against each individual item. But, there was no telling whether or not all the goods on the applicant's inventory of attached items, or some of them, were on the invoice. Counsel for the claimant, from the Bar, said they were. In his affidavit, the first claimant had said this on that point:

“7. All the property attached does not belong to the judgment debtor. It belongs to me and my wife, PAULINA KWADZANAYI MAJONI. I attach hereto an invoice which shows that we purchased some of the attached property from Zimbrellas (Pvt) Ltd on the 20^th September 2011 as Annexure 'B'”.

It was also part of the claimants' case that the judgment creditor seemed to be on a fishing expedition. He was causing attachment of assets at every place that seemingly was associated with the judgment debtor. As support for such claim, the first claimant disclosed that the judgment creditor, in separate proceedings before this court, had caused the attachment of the first claimant's goods at his plot in Rusape, to recover the same debt owed by his mother, the judgment debtor. From the Bar, counsel for both sides were in agreement that the inter pleader proceedings in respect of that attachment had been disposed of in favour of the claimants the previous day by TSANGA J.

As I probed further on the separate interpleader proceedings in respect of the attachment at the Rusape plot, I expressed concern that the two cases had not been consolidated. That other attachment had been in respect of the same debt and between the same parties. There was a real likelihood of conflicting findings or judgments between myself and TSANGA J. However, both counsel seemed agreed that the situations were slightly different. In particular, the judgment creditor had not, in that other case, unlike in the present one, impeached the lease agreement in question. In the Rusape plot attachment, the lease agreement in question had been one of the instruments used by Government in its land redistribution programme. The lease had been issued in favour of the first claimant.

There seemed to be other aspects as well about the attached assets at the Rusape plot that made the cases different.

In casu, the judgment creditor tore into the claimant's documents. He claimed the documents were counterfeit, or mere simulations executed in order to frustrate his recovery efforts. With the invoice document in particular, the judgment creditor pointed out that it predated the alleged lease agreement by more than two years. How could the invoice reflect an address at which the purchasers could not possibly have been staying at the time when they had allegedly purchased the goods, the judgment creditor asked? Furthermore, his argument persisted, no explanation for the discrepancy on the dates on the claimants' documents had been tendered.

Regarding the lease agreement, the judgment creditor's argument was that, by itself, the document was no proof of ownership of the attached goods. The Gunhill property was the address supplied by the judgment debtor herself in the acknowledgement of debt that had formed the subject matter of the provisional sentence. The summons against her in the main action had been served at that address. Thus, it ought to be presumed that the goods attached at the debtor's address belonged to the debtor.

To make matters worse, counsel for the judgment creditor argued, the claimants had refused to take the court into their confidence. They had flatly refused to disclose the judgment creditor's real place of abode. This latter submission was, no doubt, bolstered by my enquiry of the claimants' counsel, on more than one occasion, whether there was no obligation on the claimants to disclose where their mother (or mother-in-law) stayed if they insisted that she did not live at the Gunhill property, given that she herself had supplied that address in her commercial transactions, and given the fact that process meant for her had previously been served successfully at that address. But counsel felt that there was no such obligation.

It was also the judgment creditor's submission that there was no correlation between the attached assets, as listed on the applicant's inventory, and those items on the claimants' invoice.

That was the case before me upon which I pronounced judgment ex tempore dismissing the claimants' claim to the attached property.

In inter-pleader proceedings, the approach seems straightforward. By virtue of Order 30, the interpleader proceedings commence by way of a court application. Interpleaders arise because two or more persons both, or all, claim ownership of the same property. In the case of a judicial attachment, the Sheriff or his deputy, initiates the process by depositing the adverse claims with the court and deposing to an affidavit in support of the interpleader notice. The Sheriff eventually drops out, only retaining an interest for his costs. The claimants are left to fight it out between, or amongst, themselves.

The court makes a determination on the papers. Where it is unable to do so by reason of an irreconcilable dispute of fact, it may refer the matter to trial with specific directives. It can direct who, between or amongst the claimants, shall be plaintiff/s and who defendant/s. It ensures as much as possible that no party should carry an advantage or disadvantage when it gives directives on who the duty to begin falls; who the onus of proof lies on and which specific issue should be referred to trial: see Zandberg v Van Zyl 1910 AD 258; Greenfield NO v Blignaut & Ors 1953 SR 73; Bruce NO v Josiah Parkes & Sons (Rhod) (Pvt) Ltd & Anor 1971 (1) RLR 154 (G); and Phillips NO v National Foods Ltd & Anor 1996 (2) ZLR 532 (HC); Deputy Sheriff, Marondera v Traverse Investments (Private) Limited & Anor HH11-03.

In situations of judicial attachments, the proceedings generally feature a person laying claim to the attached goods and the judgment creditor insisting that the goods belong to the judgment debtor. Frequently, the judgment creditor alleges some connivance or collusion between the judgment debtor and the claimant in order to frustrate or defeat his claim. Invariably, the judgment debtor is silent, even though his footprints may be all over the dispute.

The onus rests on the claimant to prove ownership of the attached goods.

Where the goods were in the possession of the judgment debtor at the time of the attachment, there is a presumption that they belong to him. Possession is taken as prima facie evidence of title: see Greenfield NO v Blignaut & Ors 1953 SR 73; Bruce NO v Josiah Parkes & Sons (Rhod) (Pvt) Ltd & Anor 1971 (1) RLR 154 (G); and Phillips NO v National Foods Ltd & Anor 1996 (2) ZLR 532 (HC); Deputy Sheriff, Marondera v Traverse Investments (Private) Limited & Anor HH11-03.

The claimant must set out facts and allegations which constitute proof of ownership. The court will endeavour to decide the case on the papers. If a dispute of fact is alleged, the court must be satisfied that it is not fanciful. It must be real. The court will adopt a robust and common sense approach and not an over fastidious one. See Room Hire Company (Private) Limited v Jeppe Street Mansions (Private) Limited 1949 (3) SA 1155 (T)…,; Soffiantini v Mould 1956 (4) SA 150; Masukusa v National Foods Limited & Anor 1983 (1) ZLR 232 (H); and Zimbabwe Bonded Fibreglass (Private) Limited v Peech 1987 (2) ZLR 338 (S)…,. It should not hesitate to decide the issue on the affidavits merely because it may be difficult to do so. The ends of justice cannot be defeated or seriously impeded by an over fastidious approach to disputes raised in affidavits: per PRICE JP in Soffiantini v Mould 1956 (4) SA 150…,.

In my view, despite the real possibility of collusion between the judgment debtor and a claimant who are spouses, or in some way very closely related, the court should always free itself of stereotypes and preconceived notions. The case must be decided on the basis of the evidence placed before it. Nonetheless, the court should not be blind to the real possibility of such collusion taking place. It is just prudent to adopt a higher degree of circumspection where the claimant and the judgment debtor are closely related, whether by blood or through marriage, or if they are close business or social partners or associates, etc. than would otherwise be the case with total strangers.

It is pure common sense.

In Bruce NO v Josiah Parkes & Sons (Rhod) (Pvt) Ltd & Anor 1971 (1) RLR 154 (G) and Phillips NO v National Foods Ltd & Anor 1996 (2) ZLR 532 (HC); Deputy Sheriff, Marondera v Traverse Investments (Private) Limited & Anor HH11-03, the interpleader proceedings were referred to trial with appropriate directions as to what specific issues would require oral evidence, and who, between the rival claimants, would be the plaintiff and who the defendant. The referral to trial was in spite of the fact that the claimants had failed to provide sufficient facts or information to prove their ownership of the goods. In Phillips NO v National Foods Ltd & Anor 1996 (2) ZLR 532 (HC); Deputy Sheriff, Marondera v Traverse Investments (Private) Limited & Anor HH11-03 the judgment debtors and the claimant were closely related, the first judgment debtor being the claimant's sister and the second judgment debtor being the claimant's brother-in-law.

In my view, it is not possible to lay down hard and fast rules as to what factors, or what information, or what allegations, and so forth, would constitute sufficient proof of ownership of the goods at the centre of the dispute, or in what circumstances would such claims be referred to trial. Every case will depend on its own set of facts and will fall to be decided in terms of the broad parameters that have been laid down over time.

In the present case, I balanced the probabilities. The scales tilted in favour of the judgment creditor. I considered that the claimants had failed to discharge the onus resting upon them. My thought process was this.

In the first place, the address at which the goods had been seized by the applicant was the address given out by the judgment debtor as her official address. Process had successfully been served for her at that address. The claimants did not contest that position. All that they sought to do was to explain away that aspect by arguing that the Gunhill address was the judgment debtor's address for convenience only. But, in my view, that did not stop it from being the judgement debtor's official address. In such circumstances, the presumption of ownership, as referred to in such cases as Zandberg v Van Zyl 1910 AD 258, Bruce NO v Josiah Parkes & Sons (Rhod) (Pvt) Ltd & Anor 1971 (1) RLR 154 (G) and Phillips NO v National Foods Ltd & Anor 1996 (2) ZLR 532 (HC); Deputy Sheriff, Marondera v Traverse Investments (Private) Limited & Anor HH11-03, would, in my view, apply. The position was put this way by DE VILLIERS CJ, in Zandberg v Van Zyl 1910 AD 258…,.;

“…,. [P]ossession of a movable raises a presumption of ownership; and that therefore a claimant in her interpleader 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 the second place, that in this case the goods attached by the Sheriff were found at an address which the judgment debtor had always given out as hers was not, by itself, decisive. I looked at all the factors cumulatively. The claimants' alleged lease agreement gave the start date of the lease period some two years after the date of the invoice. If the lease was genuine, the alleged invoice from Zimbrellas (Pvt) Ltd, the alleged sellers or suppliers of the goods in question, should have reflected the correct address at which the claimants were staying at the time of the purchase. Despite the judgment creditor expressly picking on this point in his notice of opposition, there was no answering affidavit from the claimants to refute it. Instead, in the claimants' heads of argument there was this:

“11. The fact that invoice, as regards the ownership of property, predates the lease agreement is neither here nor there. It is common practice to have lessors giving leases to tenants for a specific period. When the period lapses, the lease in (sic) not renewed. Instead a completely new lease agreement is signed. Without and (sic) evidence to the effect that the Claimants were not staying at the premises in September 2011, the Judgment Creditor has not discharged the reverse onus on it.”

However, the above was counsel talking, or arguing, not the claimants themselves. Counsel was talking, or arguing, about what sometimes happens in lease situations. Therefore, the court was left none the wiser as to what exactly was the claimants' situation in this particular matter. At any rate, counsel seemed mistaken on who the onus lay.

My third reason for dismissing the claimant's claim was their steadfast and conscious refusal to take the court into their confidence as far as the judgment debtor's true place of abode was. They said they had no obligation to disclose. But it was not lost to me what this court had said of the judgment debtor and her case in the provisional sentence proceedings. Delivering judgment in that case CHIGUMBA J (see James Gumbi v Mandy Margaret Majoni HH654-14…,.) had said :

“The facts of this matter, in my view, disclose a tangled web of deceit. The plaintiff is cast in the role of the big hairy spider and the defendant would have the court believe that she is a harmless fly, caught in the spider's web. There is an underlying element that pervades this case, of an unfortunate malaise that has afflicted business transactions in this country in these harsh economic times. People borrow money, then turn around and come up with the flimsiest of excuses to avoid paying back. The court's task is to separate the wheat from the chaff, and to determine who is telling the truth between the borrower and the lender. In order to do this, the court looks at the evidence on the papers which the parties place before it. Sometimes, the court can decide that the whole story is not apparent from the papers before it, and, consequently, refers the matter to trial so that witnesses can testify under oath. Other times, the court can adopt a robust approach when it looks at the papers before it, and decide that the papers contain sufficient evidence for the dispute to be resolved without going to trial.”…,.

Although Her Ladyship made those remarks in relation to the judgment debtor, it was not lost to me that in view of the close blood and marital relationship between her and the claimants, the likelihood of collusion to frustrate the judgment creditor was high. It was not the judgment debtor who was disowning the Gunhill address. It was the claimants themselves. In my view, common sense dictated that if the claimants were divorcing the judgment debtor from the Gunhill property, then it was incumbent upon them to disclose her usual place of abode, especially as they were not professing ignorance of such a place.

My next point was that the alleged invoice from Zimbrellas (Pvt) Ltd, quite apart from the fact that it predated the alleged lease agreement, was suspicious for other reasons. There were more than twenty five items of property on that invoice, some big and others small. Allegedly they had been bought for $21,140=, all on the same day and all on one transaction. The items were all household goods. It was curious. It seemed incongruous and contrary to every day experience that, in a normal household, a purchase of such a large quantity of items for such a princely sum would be made all on one invoice and all on one day. Counsel had no plausible explanation. Furthermore, there was no telling whether or not the items on the applicant's inventory of attached goods were all on that invoice.

In the end, I was not satisfied that the claimants had discharged the onus resting on them to prove ownership of the attached goods. I was also not satisfied that they had laid out such facts and such information as would persuade me to refer the proceedings to trial for viva voce evidence. In the circumstances, I dismissed the claimants' claim with costs.