The Sheriff of Zimbabwe v Glynis Kelly and F.M. Katsande & Partners Legal Practitioners

### Preamble
1
HH 661-18
HC 6066/18
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THE SHERIFF OF ZIMBABWE

versus

GLYNIS KELLY

and

F.M. KATSANDE & PARTNERS LEGAL PRACTITIONERS

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 15 & 18 October 2018

Opposed interpleader application

Ms F Mavungu, for the applicant

C Macgown, for the claimant

F M Katsande, for the judgment creditor

MANZUNZU J: These interpleader proceedings were brought by the Sheriff in terms of the Rules. The Sheriff is an officer of this court whose duties include, inter alia, the execution of court orders. In line with his duties the Sheriff attached and took into execution the judgment debtors’ movable property in Case No. HC 11692/16. The judgment debtors are Mydale International (Pvt) Ltd and one Dr Rob Kelly. The Sheriff attached movable property part of which includes 2 motor vehicles and household furniture. The property was attached at No. 8 Shirely Road, Borrowdale Harare. According to the notice of seizure and attachment by the Sheriff the attachment was made in the presence of Dr Kelly.

The claimant has however claimed that one motor vehicle a Toyota Corolla registration No. ABA 3136 belongs to her. She attached copy of the vehicle registration book in support. She said the other motor vehicle a Toyota Prado registration number ADM 8951 belongs to one Fredrick John Metzger. She also attached a copy of a registration book to that effect. No claim was raised by Fredrick John  Metzger.

Claimant claimed all the attached household furniture as her property as per a property ownership agreement between her and her husband who is the second judgment debtor. The agreement executed on 3 September 2016 reads; “It is hereby agreed by R Kelly and G Kelly that all that moveable and any other fixed property whatsoever it may be belongs solely to G Kelly who may utilize or dispose of it in any way she chooses”.

The claimant’s opposing affidavit was short. It gives no further details in support of ownership beyond the registration books and the property ownership agreement. Even then, one would expect the applicant to explain as to what motivated the agreement so as to cast out any aspersions that it was a creature of a bad motive.

However, this cursory approach to proving ownership, according to submissions made for the claimant, was merely meant to buttress issue of ownership since the onus to show that claimant was not the owner rested with the judgment creditor. It was argued that when the property was attached it was in possession of the claimant hence onus shifted to the judgment creditor.

On the other hand it was argued on behalf of judgment creditor that the property was in the possession of the judgment debtor who happens to be the husband to the claimant. Further, that the place from where the property was attached is where the judgment debtor resides. This was not disputed.

The issue of in whose possession was the property attached becomes critical in order to determine question of onus.

The evidence before me favours the judgment creditor more than it does the claimant that the property was in the judgment debtor’s possession. This is because the address from where the property was attached is where the debtor resides. Claimant says she also resides there. Understandably so because these are husband and wife. But the mere fact that she resides there does not remove the aspect of the property being in possession of the judgment debtor. Not only that, but Dr Kelly and not claimant was present when the Sheriff attached the property. There is nothing from Dr Kelly to suggest that the property was not his, not even a protest.

Having found that the judgment debtor was in possession of the goods, the onus of proof of ownership rests with the claimant see Greenfield N.O. v Blignaut & Ors, 1953 SR 73 and Muzanenhamo v Fishtown Investments Pvt Ltd & Ors SC 08/17. The claimant relied on vehicle registration books which are not conclusive of any ownership. The notice of opposition by the judgment creditor should have put her on guard that what she was relying on was insufficient to discharge the onus upon her. Claimant relied upon an agreement in respect to other household-furniture. The case of Smit Investment Holdings SA (Proprietary) Limited & Anor v Sheriff of Zimbabwe & Anor, SC 33/18 was relied upon as authority that such agreement should be recognised as proof of ownership by the claimant. In response, it was drawn to the attention of the court that there was a history of litany of cases some backdating to 2009 which the court must not close its eyes to. Mr Katsande urged the court to treat the agreement with suspicion. Like earlier own pointed out, no reason or background is given as to why a husband and wife should see it fit to come with such an agreement. I am inclined in the absence of an explanation, that this document was crafted with an ulterior motive. The Smit case referred to supra is distinguishable from the present case. The Smit case was a commercial transaction hence is different from the present case. The present case is unique for a husband and wife to enter to such an agreement in the ordinary course of life and yet profer no explanation as to why it was necessary to do so or what purpose it was intended to save. In the absence of an explanation I am unable to treat the same as proof of ownership of the movable goods attached from the judgment debtor’s possession.

The claimant has failed to discharge the onus upon her to show that the attached goods belong to her. On the issue of costs, no good cause has been made for awarding of costs at a higher scale.

In the result:

IT IS ORDERED THAT:

The claimant’s claim to a Toyota Corrolla Registration Number ABA 3136, Toyota Prado Registration No. ADM 8951 and household furniture attached by the Sheriff pursuant to execution of judgment in case No. HC 11692/16 is hereby dismissed.

The attached property is hereby declared executable.

The claimant is to pay the judgment creditor and applicant’s costs.

Dube-Banda, Nzarayapenga & partners, applicant’s legal practitioners

Venturas & Samukange, claimant’s legal practitioners

F.M. Katsande & partners, judgment creditor’s legal practitioners