The Sheriff for Zimbabwe v Warlom Investments (Pvt) Ltd and The Faye Trust and Local Authorities Pension Fund

### Preamble
1
HH 813-18
HC 11176/17
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THE SHERIFF FOR ZIMBABWE

versus

WARLOM INVESTMENTS (PVT) LTD

and

THE FAYE TRUST

and

LOCAL AUTHORITIES PENSION FUND

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 25 September, 2018 and 11 December 2018

Opposed Matter

Ms T Makanga, for the applicant.

1st and 2nd Claimants in person

T. K Mudzimbasekwa, for the judgment creditor

MANGOTA J: On 23 March, 2015 the judgment creditor which sued Eleco Elevator Company (Pvt) Ltd, the judgment debtor, obtained a consent order against the latter. The consent order was for the sum of $44 111.32, interest on the stated sum at the prescribed rate reckoned from 30 May 2013 to the date of full payment and costs of suit in the sum of $1 700 which the judgment debtor was enjoined to pay on or before 10 April, 2015.

Following the issuance of the consent order, the judgment creditor instructed the Sheriff for Zimbabwe, who is the applicant in casu, to attach and take into execution the movable good of the judgment debtor. The attachment of the good brought the claimants into the equation.

The first claimant claimed that a Toyota Venture motor vehicle with registration number AAG 7935 which the Sheriff attached belonged to it. It attached to its claim the registration book of the car. It called it Annexure E. The registration book, it insisted, constituted proof of ownership of the car. It stated that the car was at the judgment debtor’s premises which it leased. It produced the agreement of lease which it called Annexure F.

The second claimant’s statement was that two motor vehicles which the Sheriff attached belonged to it. The cars comprised:

a Mercedes Benz S 350 with registration number ABD 2525 – and

a Toyota Chaser motor vehicle with registration number ACX 1740.

It attached to its claim Annexures E and F. The annexures, it said, were the respective registration books of the cars. They, it insisted, constituted proof of its ownership of the cars. It claimed that the motor vehicles were attached from the judgment debtor’s premises which it leased.

The judgment debtor opposed the two claims. It stated that registration of the cars into the names of the claimants did not constitute proof of ownership of the cars. It alleged that the claimants were colluding with the judgment debtor. The collusion, it asserted, was evident in that the judgment debtor’s legal practitioners were also the legal practitioners of the claimants. It moved the court to dismiss the claims with costs.

A person who claims ownership in a thing must establish, on a balance of probabilities, his claim to the same. One who claims ownership of a car must do likewise. Appearance of his name in the registration book of the car does not, on its own, constitute proof of his ownership of the car. All it does is to show a prima facie position which must be supported by other evidence. Additional evidence of ownership of the car focuses on such matters as relate to the fact that he purchased the car from someone as well as that the car is insured in his name.

The claimants’ statements fall short of the required proof of ownership. They anchor their claims on the fact that the cars are registered in their respective names.

The court correctly stated in Air Zimbabwe (Pvt) Ltd & Anor v Nhuta & Ors SC 65/14 that registration books are not proof of ownership. It stated, further, in Bruce NO v Josiah Parkers and Sons [Rhodesia] (Pvt) Ltd & Anor 1972 (1) SA 68 (R) that in proceedings of this nature, the claimant must set out such facts and allegations which constitute proof of ownership.

The claimants do not mention the person or entity from whom they purchased the cars, if they did. Nor do they state that the cars are insured in their names, if they are. The statement which each of them makes is prima facie evidence of its ownership of the car(s). That prima facie evidence, however, requires additional evidence which establishes the claim of each claimant. That additional evidence is wholly lacking in casu.

The claimants lie in between their teeth. They allege that they lease the judgment debtor’s premises from which the Sheriff attached the cars and other movable goods. They attach to their respective claims annexures F and G. They state that the annexures show the lease which each of them concluded with the judgment debtor.

Annexure F appears at page 19 of the record. It describes an entity which is known by the name Brownstone Insurance Company (Pvt) Ltd as the lessor and the first claimant as the lessee. Annexure G appears at page 36 of the record. The annexure is an agreement of lease which the first claimant concluded with Brownstone Insurance Company (Pvt) Ltd.

A number of matters come out clearly from the above stated set of circumstances. These are that:

(i)	none of the claimants concluded any lease agreement with the judgment debtor as had been alleged.

(ii)	Brownstone Insurance Company (Pvt) Ltd which concluded a lease agreement with the first claimant is separate and distinct from Eleco Elevator Company (Pvt) Ltd which is the judgment debtor under HC 7046/14;

(iii)	the first claimant concluded two lease agreements with Brownstone Insurance Company (Pvt) Ltd

(iv)	annexures F and G are not two separate agreements of lease. They are one and the same agreement which the first claimant concluded with Brownstone Insurance Company on 17 January 2017.

(v)	the second claimant did not ever sign any lease agreement with Brownstone Insurance Company (Pvt) Ltd – and

(vi)	annexure G, therefore, tells a lie about itself because it is not, in any way, different from Annexure F.

The claimants’ statement which is to the effect that they are leasing the judgment debtor’s premises does not reflect the correct position of the matter. They are leasing the premises of Brownstone Insurance Company (Pvt) Ltd. The second claimant’s production of annexure G shows the mala fides of the claimants. It shows their determination to pull wool over the eyes of the court in the vein hope that their unwholesome conduct would remain undetected.

The fact that the legal practitioners of the judgment debtor are also the legal practitioners of the two claimants shows, in clear terms, evidence of collusion between the judgment debtor and the claimants. The letter which the judgment debtor’s legal practitioners addressed to the legal practitioners of the judgment creditor constitutes ample evidence of the stated matter. It is dated 29 November, 2017. It reads, in the relevant part, as follows:

“… we act for Eleco Elevotor Company (Pvt) Ltd in this matter” (See page 90 of the record).

Ncube and Associates who are the claimants’ legal practitioners wrote the letter. The same firm of legal practitioners prepared and filed the claimants’ notice of opposition as well as the latter’s answering affidavits and / or their Heads of argument.

The claimants confirm the above stated position. They submit that no law prevents them from working with legal practitioners who represent the judgment debtor. They move the court not to draw any adverse inferences on the basis of the observed collusion which exists between the judgment debtor and them.

The claimants are, in my view, a pair of legal entities which work together with the judgment debtor with a view to defeating the judgment creditor’s right to sell the attached goods in satisfaction of its judgment. They made every effort to mislead the court at every turn. They, unfortunately for them, overdid their trick to a point where their effort became meaningless. Their respective claims are devoid of merit. They are, therefore, dismissed as per the alternative draft order.

Kantor & Immerman, applicant’s legal practitioners

Ncube & Associates, 1st and 2nd claimant’s legal practitioners

Sawyer & Mkushi, judgment creditor’s legal practitioners