The Sheriff of Zimbabwe v Minister of State for Presidential Affairs and Monitoring of Government Programmes and Albert Mabika

### Preamble
1
HH 841-18
HC 5798/18
THE SHERIFF OF ZIMBABWE
versus
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==============================

THE SHERIFF OF ZIMBABWE
versus
MINISTER OF STATE FOR PRESIDENTIAL AFFAIRS AND MONITORING OF
GOVERNMENT PROGRAMMES
and
ALBERT MABIKA

HIGH COURT OF ZIMBWE
TSANGA J
HARARE, 9 November 2018 & 20 December 2018

Opposed Interpleader Application

N Mugandiwa, for the applicant
T Mutumba, for the claimant
JB Mutandire, for the judgment Creditor

TSANGA J: These were interpleader proceedings in which following a judgment in favour of judgment creditor Albert Mabika, the claimant laid claim to a cotton ginnery plant which had been attached by the applicant. The judgment creditor and the claimant’s claims being adverse and mutually exclusive, the Sheriff, as he was bound to do, filed an Interpleader Notice with the High Court in terms of Order 30 of the High Court Rules, 1971.

The claimant’s claim was that the plant belonged to the Government of Zimbabwe and therefore that it was not liable to attachment. Government was said to have loaned the plant to the judgement debtor. The judgment creditor opposed the claim on the basis this was false and that there was collusion between the judgement debtor and the claimant. He had been a senior employee of the judgment debtor and was therefore familiar with the internal workings of the company.

The judgment creditor averred that the deponent of the affidavit on behalf of the government one Mr Lovemore Mafurirano had not submitted any proof of authority that he was authorised to perform the duty of suing and claiming the remedy of rei vindicatio on behalf of the Minister as required by s 7 of the Signatures and Powers Delegation Act [Chapter 10:24]. Equally significant, was said to be the fact that none of the goods on the claimant’s invoices which were submitted as proof of ownership, were in fact attached in execution. What was attached was a 50 ton cotton ginnery plant composed of four units which could not have been contained in a 26 cubic container which carried the goods on the invoices. In other words, the claimant had not proved ownership of the attached cotton ginnery plant. According to the invoices the container had contained ginnery and office supplies. The container was also said to have contained expendables. As these had been ordered in August 2014 it was the judgment creditor’s averment that they could not still have been in existence four years later in 2018. He worked for the judgment debtor as an Assistant Engineer. Also emphasised was that the duty free certificate was not in relation to the attached cotton ginnery but for ginnery supplies. Moreover the goods attached were found at the judgment debtor’s premises raising the presumption of ownership.

He also averred that the President’s office had been corruptly used to facilitate importation of goods on a duty free basis by specified individuals, one of whom was a director in the judgment debtor’s company. The goods had not been procured through the procurement board in terms of the relevant legislation which is necessary for government goods if they were indeed procured on behalf of government. There was no record of the ginnery and plant also having been purchased by or for the State as claimed. The claim that the plant had been lent to the judgment debtor was also said to be a bare assertion as no evidence was produced of any lease. Moreover, the interpleader had been filed some 32 days after the judgment and on the date of execution despite the debtor having been advised of the attachment of the cotton ginnery plant earlier. This was said to point to collusion.

The claimant failed to file its heads of argument on time. The judgment creditor’s heads were served upon the claimant on 31 July and the dies induciae expired on 3 August 2018. The claimant purported to file its heads well out of time on 25 September and without seeking an upliftment of the bar.

It is trite that where a party fails to observe court process that party is barred. At the hearing the claimant sought upliftment of the bar. This was opposed by the judgment creditor. While an oral application is permissible in terms of the rules, the preference of the courts is that applications be written. Where a written application is deemed merited for further explanation to be provided, the matter is generally postponed. See *GMB v Muchero* 2008 (1) ZLR 216. In this instance, I refused to grant the upliftment of bar because of the inordinate delay in seeking the upliftment of bar, the lack of a credible explanation for the delay and also because of the weakness of the case on merits.

The legal practitioner’s explanation was that he had been given the file and that he had miscalculated the days. The approach advocated in *Ndlovu v Guardforce Invstms (Pvt) Ltd & Ors* 2014 (1) ZLR 25 (H) aimed at encouraging legal practitioners to observe court rules, is that courts should decline to exercise judicial discretion where the explanation proffered is not credible, even where the fault of the legal practitioner will have adverse consequences on the litigant.

There was no reason why the claimant should have had to wait until the 9th of November to formally make an application for upliftment of a bar. A chamber application could have been filed. The lawyer had proceeded to file heads of argument knowing fully well they were barred. It would have been proper to file a written application the moment it had been realised by the lawyer that he was out of time. The excuse that the lawyer miscalculated the dates and only thought he was a few days out of time cannot hold. His revelation that he had also been given the file recently also meant that he was not in a position to give a full explanation of the reasons for the delay in the initial instance of why the heads of argument had not been filed on time.

I also refused to grant the upliftment of the bar as the claim itself, on the papers filed, was evidently without merit. Not only was the fact that the ginnery was in the possession of the judgment debtor a prima facie indication of ownership but also the papers clearly showed that the claimant had failed to provide tangible proof of a lease of the machinery to the judgment debtor. The case of *Phillips N.O. v National Foods Ltd & Anor* 1996 (2) ZLR 532 (H) following *dictum* of DE VILLIERS makes it clear that the onus of proving ownership rests on the claimant. See also *Bruce N.O. v Josiah Parkes & Sons (Rhodesia) Limited & Another* 1971 (1) RLR 154. Moreover, the property reflected on the invoices that were attached did not relate to that which was attached by the Sheriff. In addition, the value of the property on the invoices attached and the value of that which was attached differed significantly. The value of the invoices produced amounted to $35 000.00 whilst the value of the property attached was $600 000.00. There was no need to delay justice under the circumstances.

Having refused to grant the upliftment of the bar for the above reasons the matter was dealt with as unopposed on the merits.


The order was accordingly granted in the alternative as follows:

1. The claimant’s claim to the cotton ginnery plant which appears on the Notice of Seizure and Attachment dated 16 May 2016 which was placed under attachment in execution of the order in Case No. HC 4391/17 be and is hereby dismissed.
2. The above mentioned property attached in terms of Notice of Seizure and Attachment dated 16 May 2018 issued by the applicant is hereby declared executable.
3. The Claimant is to pay the judgment creditor’s costs.

Kantor and Immerman, applicant’s legal practitioners
Civil Division of the Attorney General’s Office, claimant’s legal practitioners
Kanoti and Partners, judgment creditor’s legal practitioners
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