Opposed
application – Interpleader
MAFUSIRE
J:
The
first and second claimants were husband and wife respectively. The
judgment debtor was first claimant's mother and, naturally, second
claimant's mother-in-law. The judgment creditor had a provisional
sentence from this court against the judgment debtor for
US$60,000-00. 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
interpleader 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.
Before
dealing with the merits, there was a preliminary point that the
claimants raised in respect of the notice of opposition filed by the
judgment creditor. It was this. In his notice of opposition to the
interpleader notice, the judgment creditor cited the parties as “THE
DEPUTY SHERIFF MARONDERA
(Applicant) [v] VICEMAST
SERVICES (PVT) LTD
(Judgment Creditor) and MANDY
MARGRET MAJONI
(Judgment Debtor)”. The correct citation, of course, was as set out
on the face of this judgment.
In
their heads of argument, the claimants took the point that there was
no proper opposition to their claim and that the persons or entities
cited by the judgment creditor were unknown.
In
response, the judgment creditor filed a notice to amend his notice of
opposition by citing the parties correctly. At the hearing, Mr Jera,
for the claimants, persisted with the objection. I overruled it. My
view was that the objection had been taken and persisted with purely
as a matter of duty or routine. It was doubtless that, save for the
foreign names appearing in the citation, the notice of opposition was
answering to the interpleader notice by the applicant, and, paragraph
by paragraph, to the claimants' own notice of opposition. The case
number was correct. Mr Jera
conceded that no prejudice would be caused to the claimants if the
amendment was allowed. Mr Chijara,
for the judgment creditor, explained that the wrong names were a
result of a typing error by himself or his typist.
The
wrong names were plainly a silly mistake. It was manifestly harmless.
I considered that silly and harmless typing errors should not impede
the adjudicating of the real disputes on the merits.
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 2013. 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.
Mr, Jera,
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 20th
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 interpleader 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 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 case before me upon which I pronounced judgment ex
tempore
dismissing the claimants' claim to the attached property.
In
interpleader 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,
Greenfiled
NO v
Blignaut & Ors;
Bruce
NO v
Josiah Parkes & Sons (Rhod) (Pvt) Ltd & Anor
and Phillips
NO v
National
Foods Ltd & Anor;
Deputy
Sheriff, Marondera v
Traverse Investments (Private) Limited & Anor.
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,
supra;
Bruce
NO, supra
and Phillips
NO, supra.
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.
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.
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
and Phillips
NO
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
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,
supra,
Bruce
NO, supra
and Phillips
NO, supra,
would, in my view, apply. The position was put this way by DE
VILLIERS CJ, in Zandberg's
case;
“… [P]ossession
of a movable raises a presumption of ownership; and that therefore a
claimant in her inter pleader 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 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 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.”
(My emphasis)
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 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.
7
August 2015
Kantor
& Immerman,
applicant's legal practitioners
Moyo
& Partners,
claimants' legal practitioners
Lawman
Chimuriwo attorneys,
judgment creditor's legal practitioners
1.
1910 AD 258
2.
1953 SR 73
3.
1971 (1) RLR 154 (G)
4.
1996 (2) ZLR 532 (HC)
5.
HH 11-03
6.
Room
Hire Company (Private) Limited v Jeppe Street Mansions (Private)
Limited
1949 (3) SA 1155 (T), @ 1165; 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), @ 339C – F;
7.
1956 (4) SA 150, @ 154G – H
8.
At p 272
9.
See James
Gumbi v Mandy Margaret Majoni
HH654-14, at p 1
