Court name
Harare High Court
Case number
683 of 2022

The Sheriff of Zimbabwe v Chikango and Another (683 of 2022) [2022] ZWHHC 683 (06 October 2022);

Media neutral citation
[2022] ZWHHC 683
Coram
Manyangadze J

 

1

HH 683-22

HC 442/22

THE SHERIFF OF ZIMBABWE

and

KUDZANAI CHIKANGO

and

OWEN POTANI

HIGH COURT HARARE

MANYANYADZE J

HARARE, 23 May & 6 October 2022

Opposed Matter

Mr M Nyathi, for the applicant

Mr C Bare, for the claimant

Mr L Ziro, for the judgment creditor

MANYANGADZE J: The applicant filed an interpleader notice in terms of r 63(2), as read with r 63(5), of the High Court Rules, 2021.  It relates to certain movable property attached by the applicant at Stand No. 125 Monavale, Harare.

The said attachment emanates from a Supreme Court order of 17 January 2020, Civil Appeal No. SC 339/19.  The order was the outcome of an appeal noted by the judgment debtor, cited as JOHN MASHIRI T/A GWAI MILLERS, against the judgment creditor, cited as BROADWAY INVESTMENTS (PVT) LTD, as first respondent, with OWEN POTANI (the judgment creditor in casu) as the second respondent.

The papers filed of record show that the appeal was against a High Court order under Case No. HC 10081/15, in which the appellant (as defendant) was ordered to pay an amount of $18 966, 13 to the respondent (as plaintiff) plus costs of suit.

The Supreme Court dismissed the appeal, and ordered the appellant to pay the respondents’ costs.  Pursuant to this order, the judgment creditor herein had his costs taxed by the Registrar of the Supreme Court.  He then instructed the Sheriff, the applicant herein, to execute against the judgment debtor’s property for the recovery of his costs.

The applicant, under a notice of seizure and attachment dated 21 December 2021, proceeded to attach various goods at No. 125 Monavale, Harare. This was the judgment debtor’s place of residence and business as well. This is the attachment that prompted the claimant to institute the instant proceedings, in which he claims exclusive ownership of all the property listed on the notice of seizure.

The basis of the claim to the property seized is that the claimant moved onto the judgment debtor’s premises soon after the latter’s death. The judgment debtor was his uncle. The claimant moved into the judgment debtor’s house with his own property, together with his family.

The claimant avers that he occupied his late uncle’s house in accordance with the prevalent customary laws of Zimbabwe.  He claims that all his uncle’s other goods were distributed according to Shona custom as he died intestate.  What remained on the property was the claimant’s own property, which he brought with him onto the residence.

The claimant’s averments are vehemently opposed by the judgment creditor. The judgment creditor avers that the claimant has no legal basis on which to claim the property. It belongs to the judgment debtor.  The judgment creditor further avers that the claimant does not stay at No. 125 Monavale.  The immovable property, i.e. the house, was sold through a public auction conducted by the Sheriff/Applicant.  The sale was in respect of a debt owed by the judgment debtor to Broadway Investments. This debt was the subject of the order in HC  10081/15, and the Supreme Court Order in SC 339/19.  The judgment creditor asserts that the immovable property in question has always been the business premises of the judgment debtor.

The judgment creditor further points out that he is the new owner of the immovable property, which he holds under Deed of Transfer 4160/20.  He instituted a court application for the eviction of the judgment debtor under Case No. HC 6515/20.

The law on interpleader claims is clear and well settled. There is a plethora of case authorities on the principles applied and the factors taken into consideration.  Both the claimant and the judgment creditor have referred to some of the cases in their submissions.

It appears, from the authorities, the starting point is who is in possession of the property at the time of the attachment.  If it is the claimant, there is a rebuttable presumption he is the owner thereof.  The onus rests on the judgment creditor to rebut this presumption, on a balance of probabilities.

If, on the other hand, the judgment debtor is the one in possession of the property, the presumption is that he owns such property.  The onus then rests on the claimant, to establish that the property is in fact his and should therefore not be declared executable.  See Greenfield N.O. v Blignaught and Others 1953 (3) SA 597, The Sheriff of the High Court of Zimbabwe v Munyaradzi Majoni and Others HH 689/15, The Sheriff of the High Court of Zimbabwe v Virginia Sibanda and Another HH 275/18, Deputy Sheriff v Lameck and Others HH 269/18, Sabaranta v LocaL Aauthorities Pension Fund and the Sheriff SC 77/17, Sheriff of Zimbabwe v Mahachi and Leomarch Engineering MHA 34/18.

In Greenfield v Blignaught, supra, the court expressed the principle in the following terms, at p 598 C:

“In a Sheriff Interpleader, the claimant is as a general rule made the plaintiff, and the burden of proof rests upon him where the goods seized were at the time of seizure in the possession of the Judgment Debtor, possession being prima facie evidence of title.”

In Sheriff of Zimbabwe v Mahachi, supra, the court highlighted the fact that each case depends on its own facts, the important principle being that the party on whom the onus to prove ownership rests must satisfactorily discharge such onus.  A bald assertion is not enough. mafusire J stated, at p 3 of the cyclostyled judgment;

“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 claims 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.”

In the instant case, the story presented by the claimant is that he moved with all his goods and family onto the judgment debtor’s property.  This was soon after the death of the judgment debtor, in accordance with some customary rites and practices.

As to what happened to the deceased’s own property, the claimant says it was all disposed of in terms of customary processes of intestate distribution of property.

I find the claimant’s story implausible.  Soon after his uncle’s death, he moves in with his entire family onto the deceased’s residence.  He then goes on to dispose of all that belonged to the deceased, leaving only his property in the house.  No effort at all was made to register the estate of the deceased and have it devolve onto his beneficiaries in an accountable manner. It means the deceased’s widow, who is still on the premises, is now entirely dependent on the claimant.

There is no supporting affidavit confirming what the claimant is averring, not even from the deceased’s widow who is still on the premises.

All this is against developments well attested to by the judgment creditor.  He now holds title to the property and has filed a copy of the Title Deeds. He instituted proceedings for the eviction of the judgment debtor.  It seems unlikely the claimant would move onto such a property with his entire family, unchallenged by the judgment creditor. It is unlikely that the judgment debtor’s property on these premises was replaced entirely with that of the claimant.

The probabilities rather are, in the circumstances, the judgment debtor, being a business that is still on the premises, is the one in possession of the attached property.  As already indicated, the residence doubled up as the business premises for Gwai Millers. The probabilities are further that the late Mr Mashiri operated this business jointly with his wife, Mrs Mashiri, who is still on the premises.  She is the one the applicant found on the premises, and it is on her that the applicant served the Notice of Seizure and Attachment.

In the circumstances, it is the court’s considered view that, on a balance of probabilities, the claimant has not satisfactorily shown that the attached property belongs to him and should not be declared executable.

In the result, an order is granted in the following terms:

  1. “The Claimant’s claim to all the property which appears on the Notice of Seizure and          Attachment dated 21 December 2021 which was placed under attachment in execution of the costs order under SC 339/19 be and is hereby dismissed.
  2. The abovementioned property attached in terms of the Notice of Seizure and Attachment dated 21 December, 2021 issued by the Applicant be and is hereby declared executable.
  3. The Claimant is to pay in full the storage costs incurred by the Applicant from the date of the removal of the goods to the date of their release from storage.
  4. The Claimant is to pay the Judgment Creditor’s and the Applicant’s costs on a legal         practitioner and client scale.”

Kantor & Immerman, applicant’s legal practitioners

Murambasvina Legal Practice, claimant’s legal practitioners

Dzoro Partners, Judgment Creditor’s legal practitioners

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