The Sheriff of Zimbabwe v Padrino Holdings (Private) Limited and Philotimo Investments (Private) Limited

### Preamble
1
HH 615 - 25
HCH 2819/25
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THE SHERIFF OF ZIMBABWE

versus

PADRINO HOLDINGS (PRIVATE) LIMITED

and

PHILOTIMO INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 9 October 2025

Interpleader Proceedings

T. Gonzi, for the Applicant

G.S. Chaparika, for the Claimant

C. Gwaka, for the judgment creditor

DEME J:    The Applicant approached this court through interpleader proceedings in terms of Rule 63 following the Claimant’s claim to the attached property. Parties filed their pleadings up to the stage of Heads of Argument.

The Claimant in the Heads of Argument raised a point in limine against the Judgment Creditor’s opposing papers. The Claimant argued that the opposing papers were not filed at the same time as contemplated in terms of Rule 59(7) of the High Court Rules. The Claimant further contended that the Judgment Creditor is consequently barred. Reference was made to Rule 59(9). The Claimant motivated the court to treat the matter as unopposed.

Arguing against the point in limine, Ms Gwaka argued that the opposing papers were simultaneously filed in terms of the Rules. She further argued that the opposing papers of the Judgment Creditor are properly before the court.

It is not disputed that the Judgment Creditor filed its opposing papers on 27 June 2025. However, for an unknown reason, the notice of opposition filed on 27 June 2025 was not stamped by the Registrar. The opposing affidavit filed on the same day was stamped.  The Judgment Creditor filed another notice of opposition on 30 June 2025 which was stamped on the same day.

The Claimant submitted that the filing of opposing papers is regulated by the appropriate part of applications in the Rules. Reference was made to Rule 63(10) which provides as follows:

“(10) Rules 57, 58, 59 and 60 shall apply to any application made in terms of this rule.”

In terms of Rule 59(7), the opposing papers, that is to say, the notice of opposition and opposing affidavit, must be filed together. Rule 59(7) provides as follows:

“(7) The respondent shall be entitled, within the time given in the court application in accordance with subrule (6), to file a notice of opposition, together with one or more opposing affidavits.”

In Statutory Instrument 81 of 2024 which amended the High Court Rules, a date of filing was defined. It defines the date of filing as follows:

“the date on which any pleading envisaged by these rules is lodged with and accepted by the Registrar;”

Thus, in terms of the definition, the filing is never complete when the filing has not been accepted by the Registrar. Thus, the notice of opposition lodged on 27 June 2025 by the Judgment Creditor is not properly before the court as this was not accepted by the Registrar. The notice of opposition lodged on 30 June 2025 was not accompanied by the opposing affidavit. The opposing affidavit was filed by the Judgment Creditor on 27 June 2025. The Registrar accepted the opposing affidavit on the same day. In my opinion, the Judgment Creditor’s opposing papers were not filed together as contemplated by Rule 59(7). For this reason, the Judgment Creditor’s opposing papers are not properly before the court.

There was no application for condonation made by the counsel for the judgment creditor to regularize the opposing papers filed. The court cannot condone an irregularity in the absence of a proper application. Reference is made to the case of Mugabe and Ors v Tsvangirai, where the Supreme Court propounded the following remarks:

“I am aware that r 4C of the High Court Rules authorises the High Court to depart from its own Rules. Thus, if the Prime Minister had admitted his failure to comply with r 18 and had sought condonation for such failure to comply with r 18 of the High Court Rules, the court a quo could, if it was so persuaded, have granted condonation for such failure to comply with r 18 of the High Court Rules. It, however, is a misdirection for the court to condone a departure from the High Court Rules in the absence of an application for such condonation. In casu, the Prime Minister contended that he did not need such condonation because r 18 of the High Court Rules was superfluous or invalid. Where a litigant adopts such a stance condonation cannot be granted by the court mero motu.”

In the circumstances, the opposing papers filed on behalf of the Judgment Creditor are improperly before the court. Consequently, the claim remains unopposed. The Judgment Creditor is resultantly barred as it failed to file proper opposing papers within the dies induciae.

The Judgment Creditor, having been warned of the irregularity in advance, ought to have taken steps to remedy the situation. For its failure or neglect to rectify the complaint, the Judgment Creditor must bear costs on an ordinary scale. Costs on an attorney and client scale can only be granted in exceptional circumstances. Such exceptional circumstances have not been advanced by the Claimant and the Applicant in this matter. In the premises, the following order is made:

The Claimant’s point in limine to the effect that the Judgment Creditor’s opposing papers are improperly before the court be and is hereby upheld.

The Claimant’s claim be and is hereby deemed to be an unopposed matter.

Claimant’s claim to the Grey Setra Bus Registration Number AGJ 0171, which appears on Notice of Seizure and Attachment dated 13 May 2025, which was placed under attachment in execution of the order in HCHC 445/22 be and is hereby granted.

The above-mentioned bus attached in terms of the Notice of Seizure and Attachment dated 13 May 2025 issued by the Applicant be and is hereby declared not executable.

The Judgment Creditor, to the extent applicable, shall pay in full the attachment and storage costs incurred by the Applicant from the date of removal of the goods to the date of their release from storage.

The Judgment Creditor shall pay the Claimant’s and Applicant’s costs of suit on an ordinary scale.

Deme J: ……………………………………………………………..

Kantor and Immerman, applicant’s legal practitioners

Hofisi and Partners, claimant’s legal practitioners

I.V Pasi Law, judgment creditor’s legal practitioners