Urgent
Chamber Application
MATHONSI
J:
The
first respondent obtained judgement against the third respondent and
issued a writ in the sum of $11,821-12 against the third respondent's
property on 14 May 2014.
In
pursuance thereof the first respondent instructed the Sheriff of this
court to execute against the third respondent's property whereupon
the Sheriff placed under attachment certain items of property found
at No. 6484 Sumatra Road Shamrock Park, Gweru. This was on 7 July
2014.
In
terms of the notice of seizure dated 7 July 2014, the items attached
were “now under judicial attachment” and the goods were to be
sold in situ. Those goods were later claimed by the applicant who
says that it was only fortuitous that on 16 July 2014 he had visited
the business stand where he kept his equipment, being 6484 Sumatra
Road Shamrock, Gweru and found that the locks had been changed. He
also found the writ of execution and the notice of attachment showing
that his equipment had been attached. In locking the premises and
putting a chain at the main entrance the Sheriff was effectively
evicting him from the premises.
At
the instance of the Sheriff the applicant says he instituted
interpleader proceedings which he expected the Sheriff to issue out
of the court in order to resolve the conflicting claims.
On
22 July 2014 he delivered the process to the Sheriff and paid the
requisite $388-00 to enable the issuance of the interpleader
application. He was laying a claim on all the property that had been
attached.
Instead
of staying execution, the Sheriff telephoned the Messenger of Court
in his presence and instructed him to forthwith remove the property
and put it in storage. As a result the property was removed on 28
July 2014 and is now in storage in spite of a letter of protest
written by the applicant's legal practitioners on 24 July 2014.
It
would seem that the Sheriff's office is now wallowing under this
unfortunate misconception that where goods that have been placed
under judicial attachment are claimed by a third party, the Sheriff
must move with indecent haste to remove those goods and place them in
storage before instituting interpleader proceedings. It is a
misconception that not only betrays a closed mind but also an
unfortunate trait indeed. What it achieves is an inconvenience of
gigantic proportions which is as unacceptable as it is not borne by
logic and common sense.
Where
goods are claimed by a party who is not the judgement debtor, such
claim must first be investigated before execution proceeds.
Ideally
the Sheriff should refer the claim to the judgement creditor and
enquire whether the judgement creditor is prepared to admit the claim
or not. If the judgement creditor admits the claim the matter should
end there as the goods should be released from judicial attachment.
In the event that the judgment creditor does not admit the claim,
then 2 conflicting claims over the goods arise bringing into play the
provisions of Order 30 of the High Court of Zimbabwe Rules, 1971.
That Order sets out the procedure to be followed in Interpleader
proceedings.
In
terms of Rule 205A(2) in regard to conflicting claims with respect to
property attached in execution, the Sheriff shall have the right of
an applicant and the execution creditor shall have the right of a
claimant.
In
terms of Rule 206(2) where the claim relates to a thing capable of
delivery the applicant shall tender the subject matter to the
Registrar when delivering the interpleader notice or take such steps
to secure the availability of the thing in question as the Registrar
may direct.
In
my view, it is sufficient for the Sheriff to render a return of
service to the Registrar signifying that the goods being claimed have
been placed under judicial attachment.
The
effect of a judicial attachment is to place the goods so attached
under the wings of the court and any person who places those goods
outside that ambit acts unlawfully and in contempt of the court.
It
is for the Registrar, perhaps after taking into account the
exigencies of a particular matter, to give directions as to how the
goods should be dealt with.
To
my mind, it is extremely uncanny for the Sheriff to proceed mero motu
to remove goods that are being claimed without even seeking an input
from the judgment creditor and without the specific directions of the
Registrar. Practically it unnecessarily increases execution costs
even when it may well be that the claim for the goods is well
grounded.
Rule
211 makes it clear that where an interpleader notice is issue by a
defendant, proceedings in that action shall be stayed pending a
decision upon the interpleader, unless the court otherwise orders.
By
parity of reason, where the claim is made by a third party, the
execution must be stayed to allow for an investigation into the claim
and a decision on the interpleader.
I
am therefore satisfied that a good case has been made for the interim
relief sought. Accordingly the provisional order is granted the
interim relief of which is:-
“INTERIM
RELIEF GRANTED
Pending
determination of this matter, the applicant is granted the following
relief:-
1.
The second respondent is restrained and interdicted from removing
applicant's property in execution until the hearing and
determination of the interpleader proceedings.
2.
In the event that the property has been removed, the second
respondent is directed to forthwith release that property to the
applicant.
3.
Notwithstanding that, it is confirmed that the goods shall remain
under judicial attachment.”
Mhaka
Attorneys, applicant's legal practitioners
Guni
& Guni, 1st respondent's legal practitioners
