Judgment record
Paradzai Choga v Rebecca Masedza and The Messenger of Court and Esnath Masedza
HH 335-21HH 335-212021
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HH 335-21
CIV ‘A’ 192/20
PARADZAI CHOGA
versus
REBECCA MASEDZA
and
THE MESSENGER OF COURT
and
ESNATH MASEDZA
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA & MANZUNZU JJ
HARARE, 23 March 2021
CIVIL APPEAL
N.T Tsarwe, for the appellant
1st respondent, in person
CHIRAWU-MUGOMBA J: The Magistrates Court sitting at Chitungwiza ordered the 3 rd
respondent to deliver to the appellant, an embroidery machine which has become the central
issue in this matter. This was after the appellant had filed a court application against the 3 rd
respondent seeking delivery of the machine on the basis of a loan of US$4200 that the 3 rd
respondent had borrowed but failed to repay. The 1st respondent laid claim to the machine
stating by way of an affidavit that it was hers having purchased it from the 3 rd respondent
resulting in the 2nd respondent causing the issuance of interpleader summons in terms of
O27(1)(b) of the Magistrate Court (Civil) Rules, 2018. The claim was strenuously opposed
by the appellant as the judgment creditor. The lower court found in favour of the 1 st
respondent on a balance of probabilities and determined that the machine belonged to her.
Dissatisfied with the ruling, the appellant noted an appeal on the following grounds:
1. The court a quo erred in finding that the 1 st respondent is the owner of the embroidery
machine which was attached by the second respondent in circumstances where the 1 st
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respondent failed to set clear and satisfactory evidence constituting proof of
ownership of the embroidery machine.
2. The court a quo erred in finding that the first respondent is the owner of the
embroidery machine in circumstances where the appellant disproved 1 st respondent’s
evidence of ownership of the embroidery machine by producing satisfactory evidence
in the form of an affidavit of the 3 rd respondent dated 10 February 2020 wherein the
third respondent promised to deliver the embroidery machine to the appellant.
3. The court a quo erred in finding that the agreement of sale produced by the 1 st
respondent was authentic in circumstances where the appellant produced satisfactory
evidence that the agreement of sale is a fraudulent document which appears to have
been signed in Zimbabwe on the 19 th of June 2019 when in fact the 3 rd respondent and
the embroidery machine was in South Africa on the date of the alleged signing of the
agreement of sale as appears on the ZIMRA declaration form dated 7 August 2019.
4. The court a quo erred in finding that there was no collusion between the 1 st
respondent and the 3rd respondent in circumstances where the appellant satisfactorily
produced evidence in support of the collusion in the form of a protection order and a
peace order sought by the 1st respondent and the 3rd respondent respectively in a move
to prevent the appellant from claiming his money and accessing the embroidery
machine.
5. The court a quo erred in finding that the appellant had supplied insufficient evidence
to disprove 1st respondent’s ownership of the attached embroidery machine in
circumstances where the appellant produced satisfactory evidence that the 3 rd
respondent owned the embroidery machine from the time she purchased the machine
until the time when the embroidery machine was attached and delivered to the
appellant by the 2nd respondent.
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6. The court a quo erred in finding that the embroidery machine is owned by the 1 st
respondent in circumstances where the embroidery machine was attached and
removed from the 1st respondent’s business address as evidenced by the notice of
seizure and attachment which indicates that service was effected at the 3 rd
respondent’s business address upon the third respondent’s son.
7. The court a quo erred in finding that the embroidery machine is owned by the 1 st
respondent in circumstances where there is proof of payment in the form of a tax
invoice in the name of the 3rd respondent.
After the hearing, we gave an order ex tempore allowing the appeal as prayed for.
These are our reasons.
At the hearing Mr Tsarwe abandoned grounds of appeal number 1 and 7. The 1 st
respondent whose papers were prepared by someone else was understandably unable to
advance any meaningful argument on the point of law raised in her heads of argument
that the appellant was in possession of the embroidery machine and hence should not be
heard by the court.
Mr Tsarwe made the following submissions in sequence in relation to grounds 2-6 of
the appeal. The court a quo had completely ignored the evidence to the effect that there
was an affidavit signed by the 3rd respondent where she indicated that she owed the
appellant some money. She stated that if she fails to return the money, she would hand
over the machine to the appellant. The 3 rd respondent was communicating with the
appellant that she was the owner of the property. The court a quo merely pointed out that
there was an affidavit without making any specific findings as to its significance. That
was a misdirection on its part. There was no evidence that the 3 rd respondent was in
Zimbabwe at the time she is alleged to have signed the agreement of sale with the 1 st
respondent. At the time that the appellant sought payment of his money from the 3 rd
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respondent, she and the 1st respondent connived to bar him from going to the place where
the machine was. The peace and protection orders were sought on the same day and at the
same court by the 1st and 3rd respondents who are sisters. The court a quo failed to
consider that point. It also ignored the evidence submitted on how the machine was
purchased in South Africa, the payment of import duty, the transport costs and payment
of rent for the premises in which the machine was put. Although the court a quo made a
finding that the machine was found in the possession of the 1 st respondent, the record
indicates that it was recovered whilst it was in the possession of the 3 rd respondent from
one Kudzanai Chikosi the 3rd respondent’s son.
The 1st respondent being a self-actor was constrained in making meaningful submissions
before the court. Her heads of argument were prepared for her by someone else. Reference
was made to the case of Bruce N.O vs Josiah Parkers and Sons Limited, 1972(1) SA 68®
@70 C-E and Sheriff of the High Court vs Mayaya and others HH-494-15 for the contention
that a claimant must prove on a balance of probabilities that the property is his or hers. The
court put the following issues to her being a self-actor so that she could make submissions.
The fact that there was no affidavit from the 3 rd respondent confirming her version of events
as contended by the 3rd respondent, the relationship between her and the 3 rd respondent as
cousins, the fact that the agreement of sale did not appear to be genuine for instance there was
a part written ‘vehicle’ then it was cancelled but not counter signed, that the agreement of
sale was entered into before the machine arrived in Zimbabwe, the fact that the tax invoice
from South Africa bears the name of the 3 rd respondent, three different signatures
purportedly all belonging to 1st respondent, the obtaining of a peace and protection order
against the appellant from the same court and on the same day. She attempted to lead
evidence from the bar which was not part of the record despite the explanation from the court
on the purpose of an appeal.
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In our view, the central issue arising from the grounds of appeal is that of ownership and
whether there are any factors that would discount the evidence placed by the 1 st respondent
before the court a quo. In other words did the court a quo err in holding that the 1st
respondent had proved on a balance of probabilities that the embroidery machine belonged to
her? The court a quo rightly pointed out that the onus in an interpleader application rests on
the claimant to prove ownership. See Sheriff of Zimbabwe vs. Majoni and ors, HH-689-15.
Due weight was placed on the fact that there was an agreement of sale between the 1 st and 3rd
respondents even though the 3rd respondent had offered to give the machine to the appellant
on the 10th of February 2020. Possession was with the claimant at the time of the seizure as
highlighted by the agreement of sale even though the appellant had highlighted that at the
time that the agreement was entered into, both the machine and the 3 rd respondent were not in
Zimbabwe. The 1st respondent had tendered evidence that she last used her passport in 2014
and had resorted to using illegal means to cross into South Africa.
In our view, the court a quo erred in the following respects:-
a. The central figure in the interpleader application is the 3 rd respondent (the judgment
debtor). Crucially there was no evidence from her whatsoever placed before the court
to support the version of the 1st respondent.
b. There was no satisfactory explanation as to why the purported agreement of sale in
June 2019 between the 1st and 3rd respondents was entered into before the machine
found its way into Zimbabwe. We find it a misdirection that the Magistrate recognised
this anomaly as well as the fact that the 3rd respondent had offered in February 2020 to
pay back to the appellant some money failure of which she was to hand it over to
appellant and yet went on to find that the 1st respondent had proved on a balance of
probabilities that the machine was hers. The inescapable conclusion is that the
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agreement between the 1st and 3rd respondents was a ruse to deprive appellant of the
machine.
c. The receipt presented by the 1st respondent in the court a quo as being the one issued
at the time of the sale in South Africa bears the name of the 3 rd respondent (Esnart)
and the signature is E. Masedza.
d. The 1st and 3rd respondents are cousins and there is likelihood of connivance – see
Makoni case (supra). The two even applied for orders on the same date and same
court to bar the appellant from accessing the machine. The 1 st respondent applied for a
protection order and the 2nd respondent applied for a peace order against the appellant.
They appeared before the same Commissioner of Oaths. They both sought ‘stay-
away’ orders against the appellant. This cannot be a coincidence but actions of
persons who connived to put the machine beyond the reach of the appellant.
The 1st respondent failed to show reasons why the decision of the court a quo ought to be
upheld. Her heads of argument were not helpful to the court. She could not advance any
reasons during her oral submissions and interaction with the court as to why the decision of
the court a quo was correct.
We therefore find merit in the appellant’s grounds of appeal numbers 2-6.
We therefore issue the following order:-
1. The appeal is allowed with costs
2. Judgment of the court a quo is set aside and substituted with the following:-
a. The claimant’s claim to the property placed under attachment in execution of the
judgment under case no. 138/20 is hereby dismissed.
b. The claimant shall pay the costs.
Manzunzu J: Agrees…………………………………
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Tadiwa and Associates, appellant’s Legal Practitioners