It
is sometimes said that surprises always abound in the practice of
law.
As
to how and why a litigant whose property has been attached and
removed for sale in execution of a judgment of this court thinks it
is possible for one of the items so attached to be released to enable
it to use that item, a Toyota Land Cruiser motor vehicle on a safari,
is indeed a mystery.
That
is especially so when a Director of the litigant claimed the property
forcing the Sheriff to institute interpleader proceedings which have
now been concluded and the property declared executable by this court
by virtue of an order issued on 11 February 2016.
In
essence, the court order granting relief to the first respondent and
that declaring the property executable are both extant and binding.
They were issued by the same court which the applicant has now
approached, by urgent application, seeking the release of the motor
vehicle.
The
applicant believes it is entitled to drive away merely because its
Director has filed two applications for rescission of judgment
without more. This court is not in the habit of contradicting itself.
It has granted an order which should be executed. There
is, in fact, no impediment to that execution, but it is now being
asked to release the property in the middle of execution.
In
its founding affidavit, deposed to by Thulani Matiwaza, another
Director, the applicant states that the inter-pleader applications
made by the Sheriff, in HC2209/15 and HC2234/15, following a claim to
the property placed under attachment in execution of a writ issued in
HC2708/14 was dealt with in default of the claimant. In fact, the
claimant in both matters was one Bianca Schultz who happens to be a
Director and shareholder of the present applicant company and the
wife of the judgment debtor, one Timothy John Schultz.
This
court, per MAKONESE J, granted orders on 11 February 2016 in
HC2209/15 and HC2234/15 in favour of the Sheriff in which it declared
the property placed under attachment which was being claimed by
Bianca Schultz (and not by the present applicant), executable and
dismissed the latter's claim. The default orders were granted
because the claimant had been served with the interpleader
application on 21 August 2015 and only purported to file opposition
on 13 October 2015 well after the expiration of the dies
inducae
which expired on 9 September 2015, triggering an automatic bar
against the claimant.
As
I have said those court orders are valid and remain extant.
What
has happened is that Bianca Schultz, ably assisted by her husband,
Timothy Schultz, as second applicant, have filed rescission of
judgment applications in both matters, namely, HC677/16 and HC768/16
simultaneously filed on 16 March 2016. The import of those
applications is to seek to revive interpleader proceedings which have
been determined by this court. It is important to note that there has
been no stay of execution of the court order which the first
respondent is executing which also remains effectual and binding.
Although
the present applicant is not a party to the two applications for
rescission of judgment and the inter-pleader applications, it has now
filed this urgent application seeking the release of a Toyota Land
Cruiser motor vehicle registration number ACG 0981 to enable it to
use it for hunting purposes with its clients who were due to arrive
for that purpose on 21 March 2016. The applicant says the vehicle is
owned by it and as proof of such ownership it has attached a Sale
Agreement purportedly entered into between itself, represented by
none other than the judgment debtor himself, Timothy John Schultz,
and one Calvyn Jan Da Nobrega on 20 December 2013 in terms of which
the vehicle was purchased for $24,500=.
No
explanation is given as to why change of ownership has not been
effected. Clearly, I am not sitting to decide the interpleader
applications because they have already been determined, neither am I
deciding the rescission of judgment applications which appear to have
their own frailties. I am required to decide whether there is a basis
for the release of property which is the subject of judicial
attachment pending the determination of rescission of judgment
applications in which the applicant is not even a party.
Counsel
for the applicant could not point to any legal basis upon which that
can be done.
Goods
are attached in order to facilitate the recovery of the judgment
debt. It has not been suggested that the debt has been liquidated. A
person who is not the applicant lays
a claim to those goods which claim necessitated inter-pleader
proceedings. The proceedings have been determined against the
claimant who was demonstrably tardy in the pursuit of the claim. She
has tried to revive the interpleader but that does not, on its own,
alter the fact that the judgment being executed is valid and has to
be satisfied.
Significantly,
execution has not been stayed, and, as such, this application, which
seeks to derail lawful execution, is an exercise in futility. There
can be no lawful basis for the release of the motor vehicle which is
the subject of judicial attachment in the circumstances of this
case….,.
Accordingly,
the application is hereby dismissed with costs on a legal
practitioner and client scale.
