Deputy Sheriff-Harare vs Conview Energy Private Limited and Kalahari Petroleum Private Limited

### Preamble
HH 250-2012
HC 4086-2011
REF: HC 2122-2011
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DEPUTY SHERIFF-HARARE

versus

CONVIEW ENERGY PRIVATE LIMITED

and

KALAHARI PETROLEUM PRIVATE LIMITED

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE 12 June and 20 June 2012

K. Musimwa for the Applicant

Ms F. Gutsa for the Claimant

S. Bhebhe for the Judgment Creditor

OPPOSED APPLICATION

MATHONSI J: The judgment creditor obtained judgment against Webster Ngwaru and Confuels (Pvt) Ltd in Case No. HC 2122/10 on 1 December 2010 in the sum of US$364 434 together with interest and costs of suit.

In pursuance of that judgment a writ of execution, directing the applicant herein to attach and take into execution movable property belonging to the judgment debtors, was issued. The  Applicant duly placed under attachment certain items of property some of which have been claimed by the claimant.

In laying a claim to the property, one Mhona Tapiwa Felix, whose designation and particulars are not given, deposed to an affidavit on 22 March 2011 alleging that the goods placed under attachment belong to the claimant. The said affidavit and annexures were submitted to the Applicant, prompting him to institute interpleader  proceedings in terms of Order 30 of the High Court of Zimbabwe Rules (“the rules”).

In doing so, the Applicant proceeded by Court application in Form 29 of the rules which calls upon the Claimants to file notices of opposition in Form 29A together with opposing affidavits. Although the Court application was explicit as to what the claimants were required to do, the Claimant (Conview Energy (Pvt) Ltd) did not file any notice of opposition and or opposing affidavit.

However, Ms Gutsa appeared at the hearing representing the Claimant and, while conceding that no opposing papers were filed, she took the view that the Claimant was entitled to be heard as an interested party who had also submitted an affidavit to the Applicant claiming the goods. I must also add that the Claimant’s legal practitioners had, on 15 May 2012, more than a year after the Claimant had been served with the Applicant’s heads of argument, purported to file their heads of argument in the matter.

The Claimant was barred in terms of r233(3) of the rules by reasons of failure to timeously file heads of argument. Mr Bhebhe for the Judgment Creditor draw to my attention something which the Claimant’s legal practitioner had withheld from me, namely that the Claimant had, on 9 February 2012, filed an application for condonation of the late filing of heads of argument. That application was not prosecuted, the Claimant electing instead to smuggle such heads of argument into the record without the leave of the Court.

In my view, the application for condonation of the late filing of heads of argument was as misplaced as it was an exercise in futility. In fact, it was the fruit of a flawed thought process. This is because the Claimant could not possibly seek to file heads of argument in an application it did not oppose and in which it was already automatically barred in terms of r233(3) of the rules which provides:

“A Respondent who has failed to file a notice of opposition and opposing affidavit in

terms of subrule (1) shall be barred.”

This application is one of many coming before this Court with alarming frequency in which people who find their goods being attached by the Deputy Sheriff merely submit an affidavit and documents to the Deputy Sheriff laying a claim to such goods and sit back and do nothing more. When the Deputy Sheriff institutes interpleader proceedings, they do not bother to file opposition only to surface on the day of hearing oblivions of their failure to oppose the interpleader proceedings.

It is not easy to understand where this misconception emanates from. In the first place, where a Deputy Sheriff has served a Court application initiating interpleader proceedings in Form 29, that application commands the respondents (the Claimant and the Judgment Creditor) to file the opposition. It also announces to them that in the event of failure to do so within the time frame given, the matter would be set down for hearing unopposed. Clearly therefore the Respondents are required to comply and failure to do so results in the automatic bar coming into effect.

The fact that a Claimant submitted an affidavit to the Deputy Sheriff claiming the goods placed under attachment and did nothing more, does not confer upon such Claimant the right to appear in Court when no notice of opposition and opposing affidavit have been filed. One does not have to go beyond the provisions of Order 30 which deal with interpleader  process to see the faultiness of this belief.

Rule 205A of the rules provides:

“(1) Where any person alleges he holds any property or is under any liability in

respect of which he is or expects to be sued by two or more persons making

adverse claims in respect of the property or liability, he may deliver to the

Claimants a notice and an affidavit setting out the matters referred to in

rules 207 and 208 respectively.

(2)  In regard to conflicting claims with respect to property attached in execution,

the Sheriff or Deputy Sheriff shall have the right of an applicant and an

execution creditor shall have the rights of a Claimant.”

It is for this reason that when the Deputy Sheriff is faced with conflicting claims from a person alleging ownership of goods he has attached and a Judgment Creditor unwilling to admit the claim, he is required to institute an interpleader application which invites the antagonists to prove their claims. In my view it is not enough for the Claimant to submit a claim to the Deputy Sheriff. Such Claimant must go further and file Court papers proving its claim to the property. It is the Court that adjudicates on such conflicting claims and not the Deputy Sheriff, who, in any event is not a conduit for the conveyance of the Claimant’s papers to the Court.

I am unable to comprehend why it is only in respect of an interpleader Court application that litigants suffer the amnesia of failing to file opposition. Rules 207 and 208 state very clearly what the parties are required to do;

“207. Contents of notice

The interpleader notice shall:-

state the nature of the liability, property or claim which is the subject matter of the dispute.

Call upon the Claimants to deliver particulars of their claims in the form of a notice of opposition in terms of rule 223; and

state that the Applicant is applying for the Court’s decision as to his liability or the validity of the respective claims.

208   Affidavit by Applicant

There shall be delivered together with the interpleader notice an affidavit stating that the Applicant:-

claims no interest in the subject matter in dispute other than for charges and costs;

does not collide with any of the Claimants;

is willing to deal with or act in regard to the subject matter of the dispute as the Court may direct.”

As to the requirement for the filing of opposing papers which is explicitly set out in r207(b), rule 209 puts the question beyond doubt by stating that Order 32 shall apply to any application made in terms of Order 30. Order 32 r 232 makes it mandatory for the Claimant, just like the Judgment Creditor, to file a notice of opposition and opposing affidavit.

Therefore a Claimant who has not filed a notice of opposition and opposing affidavit is barred and cannot have a right of audience unless the bar is lifted. As a corollary to that, considering that in such proceedings the Deputy Sheriff is a disinterested on looker who claims no interest in the subject matter and is willing to deal with the subject matter as directed by the Court, once either the  Claimant or Judgment Creditor fails to file opposition, the matter becomes unopposed for all intents and purposes.

To that extent, either the Deputy Sheriff or the party who has filed opposition, should simply set the matter down on the unopposed roll and seek final relief. In casu, it was not necessary for the Applicant and the Judgment Creditor to wait for more than a year before finalising the matter when it was, in essence, unopposed.

Having come to the conclusion that the Claimant is out of Court by reason of failure to file opposition, it is not necessary for me to deal with the merits of the matter. However, having studied the papers, I cannot resist the urge to mention that, on the papers filed, the Claimant has dismally failed to prove ownership of the property placed under attachment. There is also the related issue that there is really no difference between Conview Energy (Pvt) Ltd and Confuels (Pvt) Ltd. In my view, what belongs to one belongs to the other.

I totally agree with Mr Bhebhe for the Judgment Creditor that Conview Energy (Pvt) Ltd, which was formed when the litigation between the parties was pending, was formed as a vehicle to confound creditors.

That is the kind of behaviour which is now in vogue, where business people are quick to incur liability and then expend a lot of energy avoiding to pay debts. It must be discouraged by all means possible. For that reason those that engage in such conduct must know that the Courts will always express indignation to it and the outcome will be heavy on their pockets . An order for punitive costs is therefore called for.

In the result I make the following order, that;-

The Claimant’s claim to the goods placed under attachment in execution of a debt owed to the Judgment Creditor by Webster Ngwaru and Confuels (Pvt) Ltd is hereby dismissed.

The said goods, as set out in the notices of seizure and attachment dated 22 March 2011 issued by the Applicant, are declared executable.

The costs of this application shall be borne by the Claimant at the legal practitioner and client scale.

Musimwa & Associates, Applicant’s legal practioners

Chingeya & Mandizira, Claimant’s legal practitioners

Kantor & Immerman Judgment Creditor’s, legal practitioners