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.
