Opposed
interpleader application
CHIKOWERO
J:
JUSTIFICATION
The
HOLY BIBLE CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078
reads in Ecclesiastes 4:09-12:
“9.
Two are better than one; because they have a good reward for their
labour.
10.
For if they fall, the one will lift up his fellow: but woe to him who
is alone when he falls; for he has not another to help him up.
11.
Again, if two lie together, then they have heat: but how can one be
warm alone?
12.
And if one prevail against him, two shall withstand him; and a
threefold cord is not quickly broken.”
I
therefore refer to a number of legal sources as well as illustrations
in determining this interpleader application.
CLAIMANT
BEARS THE ONUS TO PROVE THAT THE ATTACHED PROPERTY BELONGS TO IT AND
MUST DISCHARGE THAT ONUS ON A BALANCE OF PROBABILITIES
In
Sabarauta
v
Local
Authorities Pension Fund and the Sheriff
SC77/17 Uchena
JA,
writing for the Zimbabwe Supreme Court, said:
“Inter
pleader proceedings are instituted by the Sheriff in respect of
property attached by him when a third party claims ownership of that
property. In such proceedings, it is necessary for the party claiming
the attached property to prove ownership by clear and satisfactory
evidence.”
In
the Sheriff
for Zimbabwe
v Mahachi
and Leomarch Engineering
HMA 34/18 Mafusire
J puts it thus at page 3:
“One
common thread running through such cases, and several others on the
point, is that there is a rebuttable presumption that where someone
is found in possession of movable goods, they are presumed to be the
owner of that property.
Where
someone else other than the possessor clams to be the owner of those
goods, they have the onus to prove, on a balance of probabilities,
that they are the owner. There are no hard and fast rules on how they
may go about proving such ownership. Every case depends on its own
facts. The claimant may have to produce some evidence, such as
receipts or other documents, if available, to prove ownership. A bald
assertion that they are the owner is not enough.”
(underlining my own)
The
facts of each matter ultimately resolves the question whether clear
and satisfactory evidence has been tendered by a claimant to satisfy
the court that, on a balance of probabilities, the property attached
belongs to the claimant. The road to proving ownership is not a one
way street.
WHERE
THE CLAIMANT HAS PRODUCED SUFFICIENT EVIDENCE TO CONSTITUTE PRIMA
FACIE
PROOF OF OWNERSHIP THE ONUS SHIFTS TO THE JUDGMENT CREDITOR TO
DISPROVE SAME BY PRODUCING EVIDENCE TO THE CONTRARY
The
claimant does not need, at this stage, to prove on a balance of
probabilities that the attached property belongs to it. All that is
required of it is to show, on the face of it, that the property
probably belongs to it.
That
is what prima facie
proof means in civil cases.
The
onus then shifts to the judgment creditor to disprove the claimant's
prima
facie
evidence of ownership by producing its own evidence to the contrary.
If
the contrary evidence satisfies the court the claim fails and
execution proceeds. The converse is true.
The
judgment creditor cannot successfully disprove the claimant's prima
facie
evidence of ownership by making unsubstantiated assertions in its own
opposing affidavit. Neither can it do so through composing heads of
argument based on the bare assertions in the opposing affidavit.
It
follows also that argument at the hearing of the interpleader
application is no substitute for a judgment creditor's failure to
produce contrary evidence to disprove the claimant's prima facie
evidence of ownership of the attached goods.
If
the judgment creditor cannot disprove the claimant's prima
facie
evidence of ownership the result is this. What was prima
facie
evidence of ownership is transformed into proof on a balance of
probabilities. The attached goods are then declared not executable
and their release from attachment ensues.
This
procedure has a parallel in criminal law.
If
the State establishes a prima
facie
case against an accused who then opens and closes his defence case
without without leading any evidence at all that person will be
convicted. The conviction is not based on the prima
facie
case. It is no longer that. It has graduated to become proof beyond a
reasonable doubt for want of any competing evidence.
In
(1) Smit
Investments Holdings SA (Proprietary) Limited (2) Genet Mining
(Proprietary) Limited
v (1) The
Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited
SC33/18 Patel JA, with whom Malaba
CJ and Hlatshwayo
JA concurred, said at pages 9-10:
“In
a bid to prove its ownership of the assets, the first appellant
produced statements of account for Mbada Mine which showed that some
payments but not all had been made by Mbada Mine. In addition, both
appellants produced detailed agreements concluded with Mbada Mine (on
15 July 2012 and 22 July 2015) respectively which stipulated that
ownership of the assets would remain with the appellants until the
full purchase price was paid. It was the court a quo's finding that
the agreements were not authentic and that there was collusion
between the appellants and Mbada Mine.
It
was alleged by the second respondent that the agreements were
doctored by Mbada Mine and the appellants ex post facto and that
there was no paper trail to show that the assets belonged to the
appellants.
However,
no evidence was led to substantiate the second respondent's
allegations of collusion.
The
court relied on the bald averment by the second respondent that the
documents were not authentic and simply took that to be correct. It
is the second respondent that levelled allegations of inauthenticity
and collusion. Consequently, it is the second respondent that should
have proven the same.
This
position was succinctly captured in the case of Circle
Tracking
v Mahachi
SC4/07, where the court held that the principle that he who alleges
must prove is a basic concept of our law.
No
evidence was adduced by the second respondent to substantiate the
alleged inauthenticity of the agreements.
The
appellants produced documents which show that the assets had been
procured by them and initially belonged to them. They also produced
the agreements concluded with Mbada Mine in 2012 and 2015 which show
that ownership was reserved in favour of the appellants until the
full purchase price was paid. The relevant provisions are contained
in clauses 4.3 and 11.6 of the first appellant's agreement and
clause 7.7 of the second appellant's agreement.
The
second respondent alleged that the documents supporting the
appellants' claims were a recent fabrication meant to frustrate the
execution of the assets, but the dates when the agreements were
concluded reveal that they were executed well before the second
respondent instituted any legal proceedings in this matter. There is
also nothing in the record to give credence to the allegations that
the documents were fabricated by the appellants in collusion with
Mbada Mine. It is my view, therefore in the absence of any evidence
to the contrary, that the agreements are genuine and that their
provisions and the agreed compacts contained therein must be accepted
as being authentic, as well as commercially and legally cognizable.”
This
court's decision in the Sheriff
of Zimbabwe
v Senital
(Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company
Ltd HB233/18 underscores this point. There, Makonese
J expressed it in these words, at page 3:
“The
claimant refuted the allegations that the property belonged to the
judgment debtor and in a bid to prove ownership of he attached
property, the claimant attached some receipts and agreements of sale
as proof of the attached assets. An agreement of sale is taken as
prima
facie
proof of ownership. Where a claimant tenders some acceptable proof of
ownership the onus must necessarily shift to the judgment creditor
disproving the claimant's ownership of the attached goods.”
Similarly,
Chitapi
J explained in the Deputy
Sheriff Marondera
v Hombarume
and 7 Ors
HH521/18 at page 3-4:
“In
my view, this claimant's claim is not far fetched. The claimant did
not just attach the registration book as proof of legal ownership. He
attached the official motor vehicle extract from Central Vehicle
Registry. It gives details of the importation of the vehicle by the
claimant and proof of payment of import duty and police clearances.
In such a situation, the onus to prove that the third claimant is not
the owner of the vehicle must shift to the judgment creditor. Where
the claimant places before the court acceptable evidence of ownership
or of some other legally recognizable ground warranting release of
the attached property from execution, the onus shifts on the party
who impugns such evidence to controvert it.”
SALIENT
POINTS RELATING TO LITIGATION WHICH ARISE IN THE PRESENT MATTER
I
refer to two documents on litigation before I determine this matter.
The
first is a “handout” prepared for the 1995 University of Zimbabwe
Faculty of Law final year students by Ms Sheilla Jarvis, the then
Practical Skills Law Lecturer.
In
those days Lecturers often handed out notes in written form. The
document in question runs up to 11 pages, but I confine myself to
pages 2-3, which read as follows:
“DRAFTING
COURT DOCUMENTS
Writing
in all contentious matters, claims, or offers in letters, pleadings,
affidavits, or heads of argument, needs the same approach, although
the final form differs according to the rolle of the document.
1.
Establish as many facts as you can, using your interview technique
and examining all available documents.
2.
Decide what is the applicable law or practice, looking at all
possible causes of action or defense you can think of…check a
textbook and any cases on the subject to ensure you do know all the
law.
3.
Decide what are the essential elements of each; on what basis will
the right be recognized or discretion be exercised? This
tells you what has to be alleged (underlining
in original).
4.
Decide whether you can allege the facts to meet all those elements.
Get more details from client if necessary, and consider whether you
can prove each essential fact, by admissible evidence. Anticipate
problems. Always
look for any “essence” that could decide the case and emphasize
it if you find one.
(underlined words are in bold in original)
5.
Reconsider whether there are any possible alternative causes of
action – eg to contract: unjust enrichment/delictual negligence; to
agency ostensible authority; to share of house under Mat causes:
joint commercial venture or universal partnership. Because
of trial delays and prescription you probably won't be able to
start a fresh action if the principal cause of action fails.
Repeat steps 2-4 for these alternatives.
6.
Check relevant rules for format.
Distinguish
between any Forms which should be followed closely, and precedents
which are simply available to help you.
7.
Get on with writing:
(i)
Make sure you cover each essential point.
(ii)
Ask for everything needed to do what the client wants done, a.s.a.p.
(iii)
Go
back and make sure you've justified everything you've asked for
(underlining is mine)
(iv)
Do it in a logical order, generally chronological but putting all the
elements of each separate cause of action together.
Don't
think this is too difficult: If you follow this approach, drafting
can be simple.
HIGH
COURT PLEADINGS AND AFFIDAVITS
Pleadings
simply state the basis of the claims and defences to define the
dispute. They will be followed later at the trial by the evidence.
The
papers in applications do not just define the issues for a trial;
they must also contain sufficient evidence to convince the court that
the party should get whatever he is asking for. (underlining
mine for emphasis).
The
difference between what is put into an affidavit and what is put into
a pleading follows naturally from their different purpose.
(underlining not mine).
Both
pleadings and applications use the ancient method of alternative
allegations to ascertain precisely the matters on which the parties
differ and the points on which they agree.
Be
clear, concise, accurate, complete
(my underlining)”.
Mr
George Charles Chikumbirike was a reputable Zimbabwean legal
practitioner, notary public and conveyancer.
He
is now late.
On
25 May 1989 he presented a 7 page paper at the Law Society of
Zimbabwe Winter Law School at a venue not disclosed on the face of
the paper itself. I will liberally quote from the document, which is
headed “THE TECHNIQUE OF LITIGATION”:
“… The
young lawyer these days qualifies after leaving University with an
LLB degree (these days labelled honours as if there is some magic in
that caption). He is no longer required to serve his articles of
clerkship like some of the grey hairs in this room were wont to be.
THIS
IS WHERE THE PROBLEM STARTS.
He
is then launched upon the world, theoretically qualified to appear in
any court and tribunal in the land, perhaps to plead for the life of
an accused person whose funds do not cover such trifles as his
defence on a murder charge. This is serious business.
There
is obviously need for the young practitioner to study the art of
advocacy. But how does he learn. Bitter experience is, of course, one
of the best teachers, but bitter experience is apt to leave in its
wake a trail of destruction or a clutch of ghosts that ever and anon
will return to haunt their creator.
But
how can one avoid this? How can one learn the “how” of practice
without having to destroy oneself at one's inception? There are
books of course, but… Rather, I desire to collate lessons which can
be learned from the law reports and practical experience of about 9
years in the courts, apply those lessons in particular to local
circumstances and present day practice in Zimbabwe.
……..
………
What
does one require to be a good lawyer – in this instance, a good
court lawyer. Intellect, voice, personality?
Yes
it is necessary to possess these qualities. But are they enough? Is
any one of them more important than the others?
The
answer is: of course not.
Intellect,
voice, personality are all weapons in one's armoury, but to none
can be ascribed any degree of dominance or even of importance. There
is however, one quality that can overcome any physical failing and
fortunately, it is a quality that is yours for the taking.
It
is the quality of being or becoming conscientious or diligent.
A
legal practitioner should strive to be known for this quality to his
colleagues and to the bench. Judges, and Magistrates in my view and I
have seen this happen listen with more tolerance and more receptively
to an argument which they know has conscientious effort as its
foundation. You should therefore display this characteristic, it will
help you gain the respect of your clients and from this respect will
acquire the reputation upon which a successful legal practice is
built …
…..
….
Practical
suggestions
Your
greatest cases will be those in which you call no witnesses (or only
formal witnesses). Your finest cross-examination will be where you
ask fewer questions, your soundest arguments will be where the facts
speak for themselves. It is where these Utopian conditions do not
apply that court craft and trial technique are important whether the
tribunal be the community court, magistrates court or High Court.
From
the moment a client walks into your office, gives you a story, you
are engaged in a tug of war behind two forces. Firstly, the facts and
secondly the law. Which one do you concentrate on. In my view, you
concentrate on the facts, because if you do the law can bend to the
facts. Simple isn't it? If you are to fight cases as you will be
doing, look for the facts; if you are compelled to argue a case, you
may look for the law.
The
first rule of practice as Professor Christie would sometimes say…
also the paramount rule for the experienced practitioner is to look
for one issue of law or fact which determines the matter.
In
every case, in every problem, in every point, there will be found an
essence indeed a quint-essence, hidden perhaps, dissipated perhaps,
but nevertheless there for seeking. The successful practitioner is he
who can recognise this essence, can pursue it and can ultimately
distill and capture it.
It
is unfortunate that with a less discerning mind, you will create
numerous phantom problems and encounter false scents, all too
alluring that they may be taken for reality. There are however no set
rules to be applied to these tasks; the insight required cannot be
taught, it can only be gained by experience and by patience.
The
other word of advice I would like to share with you is this:
NEVER
MAKE A MISTAKE.
Accountants
may make mistakes, our bookkeepers always do – and add up their
figures again. Doctors may make mistakes and either rely on nature or
call in a specialist. The mistakes of these professional men are
their own and normally reversible. But you as a lawyer must know that
you are faced with an adversary who will seize on any mistake and may
not allow it to be reversed. I do not refer here to technical
mistakes, but to such tactical blunders as calling the wrong witness
or not calling the right witness.
It
is well known that no one is perfect, what is not so well known is
that the lawyer cannot afford to be less than perfect. Leave out an
allegation in a pleading, or a statement in an affidavit and that
roaring noise about your ears will be the roof falling in.
In
this regard, it is necessary to have as a principle, as a motto,
this. You should approach every case as though it is your first and
if not handled properly, it may be your last…
…
…
…
Another
issue which I need to venture into is research, research on law…
… However,
in your desire to learn the techniques of litigation, be not in
haste. Legal practice requires not only perseverance,
conscientiousness but patience as well….The practice of law
requires the consideration of a problem from many angles, from every
angle, and indeed from angles that Euclid never imagined ….”
THE
FACTS
The
judgment creditors were employees of Amble Mining (Private) Limited.
The latter traded as Amble Mine.
On
24 May 2010 an Independent Arbitrator granted an award ordering the
Mine to reinstate the 99 employees with effect from March 2006
without loss of salary and benefits. As an alternative, the Mine was
to pay them certain sums for back pay, damages for loss of
employment, punitive damages, housing allowance, cash in lieu of
leave and cash in lieu of notice. The total amount was
US$1,199,251,88.
The
date when the matter was referred to the Arbitrator is not disclosed
in the papers. Also kept under wraps is the history of the labour
matter leading up to the award.
Amble
Mining (Pvt) Ltd is the judgment debtor.
On
28 June 2017 the employees filed a court application for registration
of the arbitral award. The application to register the award as an
order of this court was granted, unopposed, on 16 August 2017.
A
Writ of Execution Against Movable Property must have been issued. I
have not seen it. What I have perused both in the court record
relating to registration of the arbitral award and the present matter
is a Writ of Execution against immovable property. It was issued on
18 June 2018. In the writ is a statement speaking to a nulla
bona
return of service. The nulla
bona
return of service was not placed before me. I do not know when it was
issued. I am also in the dark as to where the sheriff had sought to
effect the attachment.
However,
as regards the immovable property, the sheriff was instructed to
attach and execute what was said to be the judgment debtor's
property being a certain Chrome Mine comprising of:
(i)
The Mining claim, being a block of 25 mining claims known as BEE 47
registered as No. G310 BM.
(ii)
110 compound houses.
(iii)
1 x shop.
(iv)
6 x round thatched guest houses tiled/geyser.
(v)
3 separate guest houses.
(vi)
Workshop.
This
was to realise the sum of US$1,199,252.99 which was the alternative
remedy to reinstatement.
On
26 June 2018 the Sheriff wrote to the Provincial Mining Director
Mashonaland West Province attaching the mining claim in question
together with everything else listed on the writ of execution against
immovable property.
Gurta
AG is the claimant. It is a company incorporated in terms of the laws
of Switzerland. It is therefore a peregrinus. It has paid security
for costs.
Gurta
AG filed an affidavit with the Sheriff claiming ownership of all the
attached property. The affidavit was deposed to by Carlo Ghezzi. He
is a Board member and Chairman of the claimant.
Claimant
admits that the mining claim used to belong to the judgment debtor.
However, claimant purchased the same sometime in 2009 and took
transfer the same year.
In
an endeavor to prove its claim, Gurta AG annexed certain documents to
the affidavit delivered to the Sheriff.
Those
documents are copies each of the certificate of registration of the
mining claim after transfer; a Board Resolution of Maranatha Ferro
Chrome (Pvt) Ltd, signed by the chairman and secretary on 15 October
2009 reflecting that the board agreed on 13 October 2009 to sell all
its mining claims as well as those of its subsidiary, Amble Mining
(Pvt) Ltd, to Gurta AG for US$1,350,000; an unsigned document on
Maranatha Ferrochrome's letterhead said to be an invoice relating
to the sale and a Lease Agreement on Maranatha Ferrochrome's
letterhead, dated 9 September 2015, in terms whereof Joseph Wirima
rented one of the rooms at the mining claim for a period of 3 months
running from 1 September 2015 to 30 November 2015 at a rental of
US$25.00 per month.
The
judgment creditors rejected the claim.
This
led to the Sheriff instituting these interpleader proceedings.
The
claimant, in a bid to prove its claim before this court, again filed
an affidavit by the same deponent. It annexed thereto copies of the
same documents as previously laid before the Sheriff. This time it
attached also copies of two letters written by the Acting Provincial
Mining Director Mashonaland West on behalf of the Secretary for Mines
and Mining Development. The letters are dated 5 July 2018. One was
addressed to the judgment creditor's then legal practitioners,
Citizens Legal Society and Advisory Trust. The other was addressed to
the Sheriff's office.
In
both letters the Ministry of Mines and Mining Development, through
the author set the record straight by advising that the mining claim
in question belongs to claimant as evidenced by records reflecting
transfer as having been effected to Gurta AG on 26 October 2009.
The
author apologized to both addressees for a mistake which had been
made in an earlier letter to Citizens Legal Society and Advisory
Trust on 31 May 2018 which stated that the mining claims and two
other claims belonged to the judgment debtor.
THE
JUDGMENT CREDITORS' POSITION
Besides
the letter of 31 May 2018 from the Ministry of Mines and Mining
Development (which was superseded by the letters of 5 July 2018 from
the same Ministry) the judgment creditors did not produce any
evidence to contradict that tendered by the claimant.
They
alleged collusion between the Acting Provincial Mining Director
Mashonaland West, the claimant, the judgment debtor and Maranatha
Ferrochrome (Pvt) Ltd to cook up the documentary evidence which the
claimant placed before me.
I
was told that there was therefore no sale of the mining claim in
question to the claimant because all the documents speaking to such
sale and transfer of the claim were fabricated.
The
judgment creditors, in opposing papers, heads of argument,
supplementary heads of argument and oral argument at the hearing said
this.
No
paper trail leading up to transfer of the mining claim to the
claimant had been put before me. There was therefore neither sale nor
transfer of the mining claim in favour of Gurta AG. The claim was
still registered in the name of the judgment debtor and therefore
executable.
The
argument was premised upon s275 of the Mines and Minerals Act
[Chapter
21:05]
which reads in relevant part:
“275
Registration of transfer of mining locations and transfer duty
payable
1.
When any registered mining location or any interest therein is sold
or otherwise alienated in any manner whatsoever, the seller or person
who so alienates shall notify the mining commissioner of the
transaction within sixty days of the date of such transaction, and
shall inform him of the name of the person to whom such location or
interest is sold or otherwise alienated and of the amount of the
valuable consideration, if any, agreed upon and the date of the
transaction.
2.
When any registered mining location or any interest therein has been
sold or otherwise alienated, whether before or after the first
November, 1961, in any manner whatsoever for valuable consideration,
transfer duty at the rate fixed by parliament shall be paid by the
purchaser, which terms shall include any person becoming entitled to
such location or interest therein by way of sale, exchange or other
like transaction;
1.………………
2.……………..
3.………………
4.
Subject to this Act, any person entitled to be registered as the
holder of a registered mining location, or any interest therein,
shall make application to the mining commissioner for the transfer of
such location or interest, and every such application shall be in
writing and signed by or on behalf of the applicant, and shall be
accompanied by the following particulars -
(a)
The last issued certificate of registration or of special
registration of the location or the holder's copy of the mining
lease, as the case may be;
(b)
Certificates by the transferor and transferee in the prescribed form;
(c)
A duplicate original grosse or notarially certified copy of any and
every existing written agreement affecting or bearing upon the sale,
alienation, exchange or transfer;
(d)
In the event of there being no such existing written agreement,
certificates by the transferor and transferee to that effect;
(e)
The original or notarially certified copy of any power of attorney
which maybe required to authorize an agent to act on behalf of any
party to the transfer; if the original power is lodged with the
mining commissioner and the applicant does not wish the mining
commissioner to retain it, he shall furnish with it a copy which the
mining commissioner shall compare with the original, certify to be a
true copy and retain;
(f)
If such application is in respect of the transfer of any mining
location registered for precious stones or any interest therein, a
certificate from the secretary that the Minister has granted the
permission required under section two hundred and eighty two in
respect of such transfer.
5.
The mining commissioner shall, on receipt of such application and
other documents and of the transfer duty or, if no such duty is or
may in the future be payable or the whole of such duty has been
remitted under subsection (9) of the prescribed fee, and if he is
satisfied that the other provisions of this Act have been complied
with, register transfer by making the necessary entries in his
registers and other records: Provided that -
(i)
No transfer as aforesaid shall be valid unless it has been registered
by the mining commissioner, and no such registration shall be made -
(a)
Where such location is liable for forfeiture or under attachment;
(b)
Until dues, fees, royalties rents or other moneys due and payable to
the mining commissioner under this Act in respect of the property to
be transferred have been paid;
(c)…….
(d)
Where the transferee is not a permanent resident of Zimbabwe, unless
the mining commissioner, after consultation with the Reserve Bank of
Zimbabwe, is satisfied that all requirements imposed by or under the
exchange Control Act [Chapter
22:05]
have been complied with;
(i)………..
(ii)……….
(8)
The mining commissioner shall also, on receipt of the prescribed fee,
issue to the transferee a certificate in the form prescribed and such
certificate shall record the interest of the transferor, whether
whole or otherwise, in such block.”
The
judgment creditor's alternative argument was this.
Should
I find that there was a sale then I should pierce the corporate veil
on two grounds.
(i)
Gurta AG, Amble Mining (Pvt) Ltd and Maranatha Ferrochrome (Pvt) Ltd
were companies in the same group. The first two were subsidiaries of
the third. Therefore the sale was between subsidiary companies.
(ii)
Secondly, there was fraud involved because the sale and transfer of
the mining claim wre designed to defeat the judgment creditors'
entitlement to attach the mining claim by taking it out of the
judgment debtor's hands.
THE
ANALYSIS
I
am satisfied that the claimant established, prima
facie,
that the mining claim belongs to it. The precise legal position is
that the holder of a mining claim has the right to work such claim to
the exclusion of everyone else.
The
totality of the documentary evidence tendered by the claimant
satisfies me in this regard.
It
is true that the date stamp on the copy of the certificate of
registration on record is not legible to the extent that the day and
month of registration of the transfer is not visible. But the year of
registration of that transfer is reflected on the document as being
2009. The two letters from the Ministry of Mines and Mining
Development dated 5 July 2018, clearly state the date of registration
of the transfer as 26 October 2009. So the letters cure the
deficiency appearing on copy of the certificate in question.
What
I have is a copy of the certificate, not the original.
The
transfer number for the certificate in question is given in the
letter which was addressed to Citizens Legal Society and Advisory
Trust. It is TR 6627. That is the transfer number appearing on copy
of the Certificate of Registration after transfer tendered by the
claimant. When issuing a duplicate original Certificate of
Registration to a holder, the office of the Mining Commissioner
obviously retains the original on file.
The
Certificate of registration is documentary evidence issued and signed
by the Mining Commissioner in Harare. The letters of 5 July 2018 are
pieces of documentary evidence authored by the Acting Provincial
Mining Director Mashonaland West in Chinhoyi. All three documents
confirm that claimant is the registered holder of the claim in
question since 2009.
No
contrary evidence was led by the judgment creditors to demonstrate
that the certificate of registration was cancelled by the Mining
Commissioner for whatever reason or disowned by him as being
inauthentic or that the letters of 5 July 2018 contain falsehoods.
This
court is not the mining commissioner. This court does not issue
certificates of registration of mining claims. The person who must be
satisfied that s275 of the Act has been complied with is the mining
commissioner. It is him, and not myself, who is under obligation to
receive, peruse and be satisfied with the documentation required
before he issues a certificate of registration.
No
evidence was placed before me by the judgment creditors to
demonstrate that the certificate of registration in question was
issued outside the statutory requirements.
The
judgment creditors' criticism of the Board resolution to sell the
mining claim to the claimant, the invoice and the lease agreement
cannot be evidence tendered by the judgment creditors disproving the
authenticity of the sale and transfer.
The
courts have accepted that business persons often record their
dealings in terms which perfectly make sense to them but are often
wanting in clarity to the legal mind. One must therefore read
commercial documents sensibly. A mere reading of a commercial
document, standing alone, may not make much sense because the context
of its making may not appear within the 4 corners of the document.
This
is how I have looked at the invoice, the lease agreement and the
board resolution.
For
example, the lease agreement entered into on 9 September 2015 at
Ngezi Mining Area with the tenant, Joseph Wirima, is recorded as:
“A
Settlement Agreement was negotiated between Upthrow Trading (Pvt)
Ltd, Maranatha Ferro Chrome (Pvt) Ltd, Amble Mining (Pvt) Ltd, Gurta
AG, Glossy Investment (Pvt) Ltd and Honourable Paul Mangwana and
signed in Italy on 3 October 2013. In terms of this Settlement
Agreement, following the completion of the handover of the mining
claims, Maranatha Ferro Chrome (Pvt) Ltd representing Gurta AG who
are the legitimate owners of the mining claims in Ngezi do hereby
offer the Lease Agreement/Arrangement for the property known as:
WHITE HOUSE ROOM 3...”
The
judgment creditors led no evidence from Joseph Wirima (the tenant), C
Mutema (the witness to the lease agreement), Upthrow Trading (Pvt)
Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana.
In
respect of Joseph Wirima and Mutema there was no evidence that the
lease agreement between the former and claimant, represented by
Maranatha Ferro Chrome (Pvt) Ltd, was inauthentic and not entered
into on 9 September 2015 but after the attachment of the mining claim
on 27 June 2018, almost 3 years later.
Similarly,
the judgment creditors adduced no evidence from Upthrow Trading (Pvt)
Ltd, Glossy Investments (Pvt)Ltd and Honourable Paul Mangwana on the
nature of the Settlement Agreement between these companies, Paul
Mangwana, the judgment debtor and the claimant.
The
Smith Investment Holdings
(supra),
The
Sheriff of Zimbabwe
v Senital
(Pvt) Ltd
(supra)
and
The Deputy Sheriff Marondera
v Hombarume
and Others
(supra)
cases are clear that where the claimant has made out a prima facie
case that it is the owner of the attached goods the onus shifts to
the judgment debtor to controvert such evidence.
Evidence
can only be controverted by other evidence, not through heads of
argument or oral submissions the sole purpose of which is to
endeavour to punch holes into a case which is already prima
facie
established.
The
sale and transfer of the mining claim occurred in 2009.
This
arbitral award was not yet in existence. Accordingly, there was no
basis for the judgment creditors' assertions of fraudulent conduct
and collusion between the claimant, the judgment debtor and Maranatha
Ferro Chrome (Pvt) Ltd.
There
was no execution to defeat at the time of sale and transfer of the
mining claims.
It
was not even disclosed by the judgment creditors when it is that
litigation in their labour case with the judgment debtor was
instituted. See S
v Stead
1991 (2) ZLR 54 (S); Mkombachoto
v Commercial
Bank of Zimbabwe Ltd and Another
2002 (1) ZLR 21 (H).
Still
on lifting the corporate petticoat of Gurta and peering behind it, I
see no other exceptional circumstance justifying the same.
The
judgment creditors told me both in heads of argument and at the
hearing that Maranatha Ferro Chrome (Pvt) Ltd, the judgment debtor
and the claimant are a single economic entity. I was therefore
invited to go behind the claimant's skirt, disregard the three
companies' separate corporate personalities and order execution of
the mining claim even though registered in the claimant's name to
satisfy the judgment debt owed by Amble Mining (Pvt) Ltd.
Mr
Zimudzi
referred me to Deputy
Sheriff Harare
v Trinpac
Investments (Pvt) Ltd and Anor
HH 121/11.
That
case is distinguishable.
Here,
there is no evidence at all as to who the shareholders of the
claimant are. There is completely no evidence to prove that they are
the same persons as the shareholders of the judgment debtor and its
holding company, Maranatha Ferro Chrome (Pvt) Ltd. Neither is there
any evidence that the directorship of the claimant is the same as
that of the other two companies. The bare allegation that claimant is
a “baby” of the “Ghezzi family” was not substantiated. I
therefore refuse to interfere with claimant's corporate regalia.
See Sibanda
v JLF
(Pvt) Ltd & Anor SC
117/04.
HAS
CLAIMANT PROVED ITS CASE ON A BALANCE OF PROBABILITIES?
In
The
Sheriff for Zimbabwe
v Renson
Mahachi and Leomarch Engineering
(supra)
MAFUSIRE
J
stated that there are no hard and fast rules on how a claimant goes
about proving ownership of attached goods.
I
fully subscribe to that view.
Examples
abound both at law and in life experiences. It is not every case
where ownership is proved through production of receipts and
agreements of sale. Also, in encouraging pupils to think outside the
box, teachers would sometimes say, even after John had answered a
question:
“Yes,
there are many ways of killing a cat, Mary what is the answer?”
The
route does not always matter. What is important is a safe journey.
For
example, it is a fact notorious for judicial notice to be taken of
that people in most African countries would, if travelling by air,
have to board a plane to London or Paris first before connecting to a
flight back to their African destinations. That does not make London
or Paris the destination.
Olivia
Charamba and The Fishers of Men realised this when they sang:
“Kana
uchienda
Uchienda
Kwaunoda
Kwaunoda
kune
nzira
Kune
nzira
Dzakawanda
Dzakawanda
...
Nzira
dzekuenda kuGweru:
Kune
Kadoma;
Chivhumudhara;
...”
These
Shona lyrics simply mean that a traveller has a choice on the route
to take to a destination. The gospel musician and her band then gave
the example of the availability of two options when travelling to the
Midlands Province city of Gweru: either through the Mashonaland West
town of Kadoma or through the Mashonaland East town of Chivhu (also
called “Chivhumudhara” or “The Republic of Enkeldorn”).
The
judgment creditors were rigid.
They
were of the view that ownership could only be proven by the claimant
producing the documentation listed in s275 of the Act. That was too
narrow a view of the matter.
They
appear not to have been alive to the law relating to shifting of the
onus as laid down by the Supreme Court and applied in numerous
decisions of this court. The result is that they did not realise that
they had no defence to the claim right from the word go.
Full
instructions appear not to have been taken and exhaustive legal
research seems not to have been conducted by their legal
practitioners.
On
perusal of the claimant's initial affidavit and annexures laying
claim to the property the legal practitioners should have gone to the
office of the Mining Commissioner in Harare to peruse the Ministry of
Mines and Mining Development's file relating to the claim in
question rather than being content in seeing permanent and unshifting
onus on the shoulders of a party who did not bear the same.
The
legal practitioners should thereafter have fully researched on the
law relating to interpleader matters.
The
law on interpleader claims is simple and readily available both in
the textbooks and decided cases of the Supreme Court and this court.
In the course of this judgment I referred to some of those decisions.
I also referred to the words of wisdom from two legal practitioners:
the first an academic and the other one of the finest court lawyers
that this nation has produced.
My
view is that the two sets of legal practitioners who represented the
judgment creditors in this matter, at different stages, should
clearly have done better.
COSTS
The
claim should never have been opposed. At the very least, the judgment
creditors' legal practitioners should have gathered sufficient
facts and evidence, both oral and documentary, for purposes of
properly advising their clients.
I
add that considering that the judgment creditors were a staggering 99
persons, the importance of the matter, its effect on them, and the
monetary value of the arbitral award a thorough job needed to be done
to advance their interests rather than exposing them to further
unwarranted financial prejudice in the form of legal fees and costs.
If properly advised, the judgment creditors may not have opposed this
claim.
It
is for these reasons that I exercise my discretion on costs. I do not
order punitive costs. The fault in defending the claim, as I have
found, lies elsewhere.
ORDER
In
the result, the following order shall issue:
1.
The claimant's claim to all the immovable property which was placed
under attachment in execution of judgment in HC5852/17 be and is
hereby granted.
2.
All the mining claims attached in terms of the letter written to the
Provincial Mining Director Mashonaland West dated 26 June 2018 are
declared not executable.
3.
The judgment creditors shall jointly and severally the one paying the
others to be absolved pay the claimant and applicant's costs of
suit.
Dube-Banda,
Nzarayapenga & Partners,
applicant's legal practitioners
Kantor
& Immerman,
claimant's legal practitioners
Zimudzi
& Associates,
judgment creditors' legal practitioners
