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.
