The Sheriff of Zimbabwe and Frederick Charles Moses Mutanda v Beresford Hawley Richard Brown and Gordon Fraser Farquharson

### Preamble
1
HH 42-21
HC 5918/15
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THE SHERIFF OF ZIMBABWE

and

FREDERICK CHARLES MOSES MUTANDA

versus

BERESFORD HAWLEY RICHARD BROWN

and

GORDON FRASER FARQUHARSON

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 10 November 2020 & 17 February 2021

Opposed Application – Interpleader

Ms L Chirumbwana, for applicant

Mr E. R. Samukange, for the claimant

Mr K Mutyasira, for the judgment creditors

CHAREWA J: The claimant instituted interpleader proceedings claiming ownership of an excavator which was attached by the applicant to satisfy a writ issued by the judgment creditors.

Background

The judgment creditors obtained provisional sentence against one Andries B Bester (the judgment debtor), in HC 5918/15, in the amount of US$240 000 and issued a writ in execution which was executed against the excavator in issue at Winrax Estate, Mutorashanga. The claimant claims that the excavator is his as he was found in possession thereof, or more particularly, that the excavator was found at a farm which is owned by a company of which he is a shareholder. He provides no documentary support to prove his ownership, except his averment that he bought the excavator from the judgment debtor in 2015.

On the other hand, the judgment creditors aver that the excavator could not have been lawfully sold to anyone, including the claimant, as it was ceded in 2012 in lieu of a debt. Further, they submit that the excavator was subject of a joint venture agreement between the judgment debtor and the judgment creditors in pursuance of which a cession agreement was entered. They provide the documentation to that effect. Therefore any purported sale to the claimant could only have been an aide to evading the judgment debtor’s liabilities.

The Law

The law in interpleader proceeding is trite. A claimant has the onus to adduce such facts and evidence that constitute proof of ownership. Where a claimant is found in possession, a rebuttable presumption of ownership is raised. Where a claimant has discharged his onus aforesaid, the duty shifts to the judgment creditor to discharge the presumption so raised.

The issue

The issue before the court is therefore whether the claimant has discharged the onus upon him and if so, whether, the judgment creditor has sufficiently rebutted such facts and allegations of ownership raised by the claimant.

Analysis

I think not. Firstly, claimant claims that he bought the excavator from the judgment debtor. However, he produces no agreement of sale or proof of payment at all. He claims that these documents are lost or misplaced, but does not even proffer an affidavit by the judgment debtor in support of his averments.

Furthermore, he claims that he was found in possession of the excavator and therefore there is a rebuttable presumption of ownership. But even this averment falls short for the simple reason that he produces no proof that he was in fact found in possession of the excavator. In fact, the Sheriff’s returns do not show that he found the claimant in possession of the excavator.

Besides, the claimant claims that the attachment was done at his farm, when the documentation he produces, including the Form CR14, show that the farm is in fact owned by a company of which he is not a sole shareholder or director. In fact, in HC9831/15, the company obtained an order in its own right, to ownership of the farm. He does not even claim to be the farm manager.

In any event, the judgment creditors have produced documentation which indicate that the excavator was subject of a lien at the time it was allegedly sold to the claimant: it being the subject of a joint venture agreement whereby the excavator was subject to be hired out. As a consequence, it was subject of a cession between the judgment creditors and the judgment debtor. It seems to me that those documents sufficiently dispel the notion of any valid sale to the claimant and discharge the presumption of ownership (if any), raised by the excavator being found at the farm of which the claimant is a shareholder in the company owning the same.

I cannot therefore find, in the circumstances, that the claimant has sufficiently raised facts and allegations constituting ownership: there is no sale agreement in favour of the claimant, there is no proof of payment of the purchase price by the claimant, there is no proof of ownership of the farm where the excavator was found by the claimant, and finally there is no proof of possession of the excavator by the claimant.  In fact, the claimant’s claim falls woefully short of the requirements for a successful interpleader claim and must be dismissed.

Disposition

In the premises the claimant’s claim to all the moveable property which was placed under attachment in execution of judgment HC5918/15 is hereby dismissed.

All the moveable property attached in terms of Notice of Seizure and Attachment dated 13 July 2018 issued by applicant is hereby declared executable.

The claimant is ordered to pay the judgment creditors and the applicant’s costs of suit on an attorney and client scale.

Messrs Dube Banda, Nzarayapenga & Partners, applicant’s legal practitioners

Messrs Samukange Hungwe Attorneys, claimant’s legal practitioners

Messrs Mubangwa & Partners, judgment creditors’ legal practitioners