MTSHIYA
J:
This
is an interpleader application.
On
5 September 2014 the following consent order was granted in favour of
the Judgement Creditor;
“IT
IS ORDERED BY CONSENT THAT:
1.
The defendants shall pay US$60,000.00 being 10% commission on an
investment of U$60,000.00 brokered by the plaintiff.
2.
The US$60,000.00 shall be paid through plaintiff's legal
practitioners on or before 30 September 2014.
3.
The balance of plaintiff's claim shall be referred to trial in
terms of the joint pre-trial conference minute signed by the parties'
legal representatives.
4.
There be no order as to costs.”
On
the basis of the above court order and on the instructions of the
Judgment Creditor, on 6 November 2014, the Sheriff of Zimbabwe
attached various goods allegedly belonging to the judgement debtors
who have not been cited in
casu.
The judgment debtors, in the consent order, were Zhuwakinyu Chazarira
(first defendant) and Xingrong Hu (second defendant).
On
19 November 2014 the claimant herein advised the applicant that the
attached goods belonged to it. That led to the applicant filing this
interpleader application on 5 December 2014.
The
attached goods included mining equipment, vehicles and office
equipment.
As
already stated, the claimant alleges that the attached goods belong
to it and that it has no relationship with the judgement debtors. It
states that the assets were imported into Zimbabwe following the
grant to it of an Investment Licence by the authorities in Zimbabwe.
It says the equipment was meant for its mining operations in Zimbabwe
and it had legally imported it into the country as evidenced by
documentation from The Zimbabwe Revenue Authority (ZIMRA).
The
claimant went on to argue that, although the judgement debtors might
have had an interest in the claim, the court should recognise the
fact that it is a separate legal entity whose property did not belong
to them (judgement debtors).
On
its party the applicant, who has no interest in the matter, stated
that it would abide by the court's decision.
The
judgement creditor initially raised a point
in limine,
namely that the affidavit used to lay a claim to the attached
property was not properly signed and therefore there was no claim.
However, that claim was not persued in submissions.
In
any case the point in
limine
would not have been upheld because the rules do not specify how a
claimant informs the applicant of its claim. It could be verbal or be
through any other written instrument that moves the applicant to file
an interpleader. The situation, however, would have been different if
the affidavit in the opposing papers of the claimant were not
properly executed.
I
fully agree that the property of the company should be distinguished
from that of its shareholders. That is exactly what the law says.
However,
the judgement creditor has, in my view, correctly argued that the
claimant has failed to place before the court proof that the attached
assets indeed belong to it. The assets can only be removed from
attachment upon ample proof of ownership by the claimant.
There
is no such proof in
casu.
It
is true that some assets may have been a listed on the ZIMRA
receipts. That alone, however, does not tell us that the judgment
debtors, whose interests on the claimant were not denied, could not
have imported some of the assets through “their” company. It is
not only the claimant who could import the listed items.
In
any case, why would the claimant fail to produce such evidence as
clear receipts and registration books for the attached vehicle(s).
It
would be inappropriate for this court to allow judgment debtors to
hide behind the corporate veil in order to avoid payment of personal
proven and accepted debts.
The
claim in
casu
becomes even more dismissable when the judgment creditor states;
“(ii)
Immediately after the attachment of defendant's property and on 11
November 2014 one Anqi Hu, a Director of Rongxin Company (Private)
Limited, approached me and made an undertaking to repay the debt on
terms. I attach as Annexure 'B' hereto her payment proposal on
behalf of defendants which I then accepted. I confirm that I received
the initial payment of US$8,000.00. Again, this proposal was not made
in good faith as it made with a view to buying more time for
defendants while they finds ways of defeating my claim. The present
application is nothing but a way of trying to defeat my claim.
(iii)
I am aware that defendants own 65% Shares of Rongxin Mining Company
(Private) Limited. I attach as Annexure 'C' the company's
investment License No. 1870 dated 26 June 2013. The Defendants are,
therefore, direct owners of the attached goods to the extent of their
shareholding, which goods may well be individually owned.
3.3.
The mention of Rongxin Mining Company (Private) Limited is designed
to mask defendants' ownership of the goods attached.”
It
is worth noting that it is actually the deponent to the claimant's
affidavit who, on 11 November 2014, signed the following document:
“11
November 2014
I
Anqi Hu, on behalf of Zhuwankinyu Chazarira to pay USD60,000.00 which
is 10% of the sum of $600,000.00 in following terms:
12
Nov 2014 USD$ 8,000
12
Dec 2014 USD$14,000
12
Jan 2015 USD$14,000
12
Feb 2015 USD$14,000
13
Mar 2015 USD$10,000
Anqi
Hu”
When
the above note was written, the assets being claimed had already been
attached.
Surely
by that time Mr Anqi Hu, a Director of the claimant, must have known
that wrong assets had been attached. He did not say so but went on to
propose settlement terms and even made a payment of $8,000.00.
A
week later his colleague, Mr Xingron Hu, made this claim to the
applicant.
Like
his colleague, Mr Anqi Hu also knew what had been imported under the
Investment Licence. However, as at 11 November, 2014, Mr Anqi Hu
pretended not to know and only came up with a different position on
28 January 2015, when he swore to the affidavit herein, in support of
the claimant's claim.
The
papers before me do not even challenge the place of execution.
This
is so because that is where the judgement debtors operated from.
That
also reinforces the principle that possession of a movable asset
raises a presumption of ownership.
The
assets were attached at the premises used by the judgment debtors.
The assets, in my finding, belonged to the judgement debtors. See
Bruce
NO v Josiah Parkes & Sons (Rhodesia) (Pvt) Ltd and Another
1972 (1) SA 68 (R).
In
view of the foregoing, I am not satisfied that the claimant has a
valid claim to the attached assets.
The
claimant's claim is dismissed with costs.
Messrs
Kantor & Immerman,
applicant's legal practitioners
Messrs
Hussein Ranchod & Company,
claimant's legal practitioners
Messrs
Mbidzo Muchadehama & Makoni,
judgement creditor's legal practitioners
