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HB125-18 - THE SHERIFF OF ZIMBABWE - APPLICANT vs CORESOIL MINING PL (Represented by Kelvin Kaguru) - CLAIMANT and KUSAFUNGA KAGURU - JUDGMENT DEBTOR and ESTER MOYO (NEE KELLIE) - JUDGMENT CREDITOR

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Procedural Law-viz judicial attachment re interpleader proceedings iro Rule 205 of the High Court Rules.
Procedural Law-viz judicial attachment re inter-pleader proceedings iro Rule 207 of the High Court Rules.
Procedural Law-viz judicial attachment re inter pleader proceedings iro Form 29A.
Procedural Law-viz rules of evidence re documentary evidence.
Law of Property-viz proof of title re movable property.
Procedural Law-viz automatic bar re failure to file opposing papers timeously iro Rule 210 of the High Court Rules.
Procedural Law-viz automatic bar re failure to comply with dies induciae for filing court process iro Rule 210 of the High Court Rules.
Procedural Law-viz condonation re the interests of justice iro Rule 4C of the High Court Rules.
Procedural Law-viz pleadings re unopposed proceedings iro automatic bar.
Procedural Law-viz automatic bar re upliftment of bar.
Procedural Law-viz final orders re procedural irregularities iro discretion of the court to dismiss a matter.
Procedural Law-viz form of proceedings re application proceedings iro Rule 233 of the High Court Rules.
Procedural Law-viz manner of proceedings re motion proceedings iro Form 29A.
Procedural Law-viz condonation re liability of a client for the negligent acts of its legal practitioners.

Passing of Ownership, Proof of Title re: Movable Property & Principle that Possession Raises a Presumption of Ownership


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. 

The claimant attached to its papers certain invoices to prove its claim to the attached property.

Condonation or Judicial Indulgence re: Approach, Time-Barred Proceedings, Extension of Time and Interests of Justice


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach and Unopposed Proceedings


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

Automatic Bar re: Approach, Notice to Plead, Notice of Intention to Bar, Upliftment of Bar and the Dies Induciae


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Judicial Declaratory Order or Declaratur re: Interpleader Proceedings iro Judicial Attachment


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the Rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No.29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the Rules. Their papers are, to that extent, fatally defective: see Jack v Mushipe NO & Ors HH318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods, as set out in the Notice of Seizure dated 14th December 2016, be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.

Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the Rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No.29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the Rules. Their papers are, to that extent, fatally defective: see Jack v Mushipe NO & Ors HH318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods, as set out in the Notice of Seizure dated 14th December 2016, be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the Rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No.29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the Rules. Their papers are, to that extent, fatally defective: see Jack v Mushipe NO & Ors HH318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods, as set out in the Notice of Seizure dated 14th December 2016, be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.

Final Orders re: Procedural Irregularities & Discretion of Court to Condone, Interfere, Dismiss, Strike, Remit or Set Aside


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the Rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No.29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the Rules. Their papers are, to that extent, fatally defective: see Jack v Mushipe NO & Ors HH318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods, as set out in the Notice of Seizure dated 14th December 2016, be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.

Condonation or Judicial Indulgence re: Consequential Effects of Negligent Acts of Legal Practitioners


The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant to attach certain property comprising two (2) tractors, earth moving equipment, a 3 stamp mill, a crusher, and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No.29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter, the judgment creditor raised certain preliminary points, which, if upheld, would dispose of the matter without further ado.

The first point raised by the judgement creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the Rules.

It is common cause that the claimant was served with the interpleader application on the 2nd of February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th of February 2017 and served the judgment creditor on 2nd March 2017 - way after the 10 day period stipulated by the Rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“Where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter, the court may make an order declaring him, and all persons claiming under him, barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by counsel for the claimant, it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the Rules.

Counsel for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred: see Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the Rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No.29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the Rules. Their papers are, to that extent, fatally defective: see Jack v Mushipe NO & Ors HH318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods, as set out in the Notice of Seizure dated 14th December 2016, be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.

MAKONESE J: The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.

The Judgment Creditor obtained judgment in case number HC735/15, and subsequently instructed the applicant to attach certain property comprising 2 tractors, earth moving equipment and a 3 stamp mill, a crusher and a motor.

Upon such attachment, the claimant informed the applicant that the attached property belonged to it, and not to the judgment debtor.

The claimant and judgment creditor were called upon to deliver particulars of their respective claims to the attached property in terms of Form No. 29A, together with one or more opposing affidavits, with the Registrar of the High Court.

The notice specifically called upon the parties to lodge their papers within ten days from the date of service of the notice.

The claimant seeks relief for the release of the attached property on the basis that such property is not executable as it does not belong to the judgment debtor. The claimant attached to its papers certain invoices to prove its claim to the attached property.

The claimant's claims are resisted by the judgment creditor who contends that the directors and shareholders of the claimant are the judgment debtor and one Kelvin Kaguru, the judgment debtor's son.

Before dealing with the merits of the matter the judgment creditor raised certain preliminary points, which, if upheld would dispose of the matter without further ado.

The first point raised by the judgment creditor is that the claimant is barred in terms of the Rules of this Court in that it failed to file its opposing papers within the time stipulated in the rules.

It is common cause that the claimant was served with the interpleader application on the 2nd February 2017, and ought to have filed opposing papers on or before 16th February 2017. The claimants failed to do so, and only filed their opposing papers on the 27th February 2017 and served the judgment creditor on 2nd March 2017, way after the 10 day period stipulated by the rules.

In terms of Rule 210 of the High Court Rules it is provided that:

“where a claimant to whom an interpleader notice and affidavit have been delivered has failed to file and serve a notice of opposition in terms of Rule 233 or is in default of appearance at any hearing of the matter the court may make an order declaring him and all persons claiming under him barred as against the applicant from making any claim on the subject matter of the dispute.”

From the submissions made by Ms Vundla, appearing for the claimant it was abundantly clear that the claimant was barred.

She however invited the court to condone the non-compliance with the rules. An attempt was made to request the court to invoke the provisions of Rule 4C of the Rules of this court.

The only difficulty with this course of action is that there was absolutely no explanation placed before the court why there was non-compliance with the rules.

Mr Mafirakureva, appearing for the judgment creditor indicated that the matter ought to be treated as unopposed as there was no application for the upliftment of the automatic bar.

He further drew the court's attention to the fact that the judgment debtor was also duly barred as opposing papers had been filed way after the stipulated ten (10) days had elapsed.

As regards the failure to file a notice of opposition within the stipulated time frame is concerned, there can be no doubt that the claimant was out of time and therefore duly barred. See Regina Gumbo v Steelnet (Zimbabwe) & Anor HB84-13.

Further, and in any event, the notice of opposition filed by the claimant is defective for lack of compliance with the rules of the court.

In terms of Rule 233 of the High Court Rules, a notice of opposition must be in Form No. 29A.

The claimant and judgment debtors' notice of opposition are not in compliance with the Rules.

The claimant and judgment debtor have not sought condonation for their failure to comply with the rules. Their papers are to that extent fatally defective. See Jack v Mushipe NO & Ors HH-318-15 and Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101.

For the aforegoing reasons, I am satisfied that the preliminary points raised by the judgment creditor should be upheld.

I accordingly make the following order:

1. The claimant's claim be and is hereby dismissed.

2. The attached goods as set out in the notice of seizure dated 14th December 2016 be declared executable.

3. The claimant pays the costs of suit of the judgment creditor and the applicant.







Coghlan & Welsh, applicant's legal practitioners

Mutuso, Taruvinga & Mhiribidi, claimant's legal practitioners

Moyo & Nyonis, judgment creditor's legal practitioners

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