The Sheriff of Zimbabwe v Phumelela Masuku and Tapiwa Nelson Magwizi

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                                                                                        HC 6526/20
THE SHERIFF OF ZIMBABWE
versus
PHUMELELA MASUKU
and
TAPIWA NELSON MAGWIZI


HIGH COURT OF ZIMBABWE
TSANGA J
8 June & 21 July 2021


Interpleader application


A Ingwane, for Applicant
W Chikanya in person, for Claimant
Judgment creditor: Barred


       TSANGA J: On the 30th of June 2016, the judgment creditor, Tapiwa Nelson Magwizi,
obtained a default judgment in his favour against Brandhope Enterprises Private Limited t/a
Brandhope Logistics. The judgment debtor, Brandhope, was ordered to deliver an IVECO 7, 8
tonne truck within 7 days from the date of judgment or alternatively pay a refund in the sum of
US$13 000, being the purchase price paid.

       Pursuant to this judgment in his favour, the judgment creditor proceeded in 2019 to
instruct the Sheriff to attach and deliver certain moveable property at the judgment debtor’s
premises. In execution of the writ of delivery, on the 23 rd September 2019, the Sheriff delivered a
motor vehicle collected at Brandhope, being a Ford Iveco. Phumelela Masuku laid claim to this
vehicle which was not yet registered as being his, having imported it from the United Kingdom.
The Sheriff was requested to file these interpleader proceedings.

       The claimant, represented by one Wanslous Chikanya on the basis of a power of attorney
issued to him on the on the 8th of October 2019, averred that the car was at Brandhope because it
was being sold. He also highlighted that the judgment creditor had paid for his truck in 2014
whereas his own vehicle had arrived in Zimbabwe in 2017 which was way after the judgment
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creditor had purchased his IVECO CMA which was different from his. As such, he averred that
his motor vehicle could not be used to pay the judgment creditor’s debt.

       In support of his claim, he attached the import documents as well as proof of payment of
duty on the vehicle all dating back to 2017. The customs clearance certificate is dated 2017 and
proof of payment of duty is dated 5 September 2017. Also attached was the permission to sell the
motor vehicle which Wanslous Chikanya, the representative, had himself issued to Brandhope in
2017. It was dated 11/12/17 specifically.

       The judgment creditor filed a notice of opposition and claimed collusion on the part of
the judgment debtor and the judgment debtor. The judgment creditor questioned the authenticity
of the documents in light of the delay in filing the interpleader proceedings. Whilst the writ was
executed in September 2019, the claimant’s claim had only been made on the 9 th of September
2020. The judgment creditor therefore indicated that the interpleader proceedings had only been
filed almost a year after the attachment and delivery had taken place. Moreover, he highlighted
that the truck had already been delivered to him in 2019.

       He also highlighted that the mandate to sell showed the owner as Wanslous Chikanya and
not the claimant. Also, a few days before the claimant filed his claim, the judgment creditor had
received a payment of ZW$13 000.00 from Mr. Square Chamboko the Director of the judgment
debtor, claiming to be a settlement of the purchase price. Soon thereafter he had received a letter
dated 17th November 2020 from the judgment debtor’s lawyers, demanding the return of the
truck on the basis that they had settled the debt in full. The money was sent back.

       At the hearing, the judgment creditor’s lawyer was barred for failure to file heads of
argument and the matter was considered on merits. The case of Lesley Faye Marsh Private
Limited T/A Premier Diamonds A& Ors V African Banking Corporation Of Zimbabwe Private
Limited And ABC Holdings Private Limited SC 4 /19 clearly lays out the procedure to be
followed where a party is barred for failure to file heads of argument on time given that a notice
of opposition will already have been filed. Makarau JA as she then was stated therein as follows:
       “The law governing the powers of the court in circumstances where a respondent files
       heads of argument out of time is clearly spelt out in r 238(2) (b). The Rule provides:
        “(2b) Where heads of argument that are required to be filed in terms of sub rule (2) are
        not filed within the period specified in sub rule (2a), the respondent concerned shall be
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         barred and the court or judge may deal with the matter on the merits or direct that it be
         set down for hearing on the unopposed roll”.
         Rule 238 (2) (b) is self -contained and deals exclusively with instances where the
         respondent has filed heads of argument out of time. In the self- contained provision, it is
         expressly provided that a respondent who defaults in filing heads of argument out of
         time is barred for that reason. The Rule then proceeds to regulate how the matter in
         which the respondent has defaulted is to be disposed of. This is to be contrasted with the
         provisions of r 239 which also governs the hearing of applications generally and in the
         proviso to the rule, the hearing of applications where a party is barred………….
         The court or judge may, using their discretion, proceed to determine the matter on the
         merits or negate and nullify the respondent’s defence by referring the matter to the
         unopposed roll. In other words, the court has to either dispose of the matter on the
         merits or declare it to be now unopposed by reason of the default.”

       In light of the above, this court proceeded to deal with the case on the merits with the
judgment debtor being barred. Where the property is recovered from a judgment debtor, the onus
is on the claimant to prove ownership, the presumption being that such goods belong to the
judgment debtor. Zanderberg v van Zly 1910 AD 258 at 272. Needless to say, where property
has been wrongfully attached, time is also of essence in lodging a claim to the property through a
request for interpleader proceedings. It is an indicator of the extreme urgency of the situation and
may lend veracity to a claim of wrongful seizure Where there has been an inordinate delay or
there are circumstances that have led to the delay in filing such proceedings, it needs no saying
that such delay or special circumstances must be clearly laid out in the affidavit of claim.
       Where the delay of nearly a year is only sought to be explained in the heads of argument
and only because the judgment creditor has raised the issue in their notice of opposition, this
raises serious doubts on the authenticity of the claim or the absence of collusion.
As stated in Jane Mutasa v Telecel International & Anor HH 331-14
       “Where allegations are contained only in Heads of Argument and not in evidence
       submitted on behalf of a party, in the form of affidavits deposed to by witnesses, the court
       will simply ignore such evidence or allegations as I intend to do in this matter: Kanyanda
       v Muzhawidza 1992 (1) ZLR 229 (S) 231 C. The logic of that position is pretty obvious.
       It is that the party against whom such allegations are made is entitled to an opportunity to
       rebut them.”

       A claimant who fails to disclose or place all material facts before the court at the outset of
his claim only has himself to blame if his claim turns out to defy logic. There is no reason herein
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why the claim could not have been made timeously if indeed there is truth to the claim that the
car did not at the time belong to Brandhope.

       There is also no explanation why the vehicle registration book was not attached given
that page 20 of the record shows an application for vehicle registration was made with central
vehicle registry way back in September 2017 though the number was yet to be advised on the
permission to sell the motor vehicle form signed in November 2017. It may very well be the case
that it was not registered due to shortage of number plates but the circumstances needed to be
specifically averred. It also seems highly unlikely that the car was still just sitting at Brandhope
up for sale nearly two years later.

       The claimant’s affidavit also raises doubt as to the veracity of his claim for another
reason. In paragraph 4 of the claimant’s affidavit sworn to by Mr. Wanslous Chikanya, he
averred that the Iveco was brand new and in brackets not yet registered in Zimbabwe. The
meaning of brand new is clear and even if the car was not yet registered in Zimbabwe it could
not have been described as brand new when it was clearly not. Though averred to be brand new,
it is very clear from Annexure D that it was a used Iveco truck that was valued at 900 pounds
that was sold to claimant. The customs clearance certificate, Annexure F, also confirms it was a
1996 model. The permission to sell also confirms it was far from new. The paintwork was
described as rusty, it had no spare wheel, no tools, no jack, no spanner and the upholstery was
captured on the form as “fair”. Once a party lies on one aspect the assumption is that he is lying
on other aspects as well.
       Furthermore, the claimant placed his car there for sale. The vehicle was able to be
attached because the judgment creditor had, even though prior to the arrival of this particular
vehicle, bought a vehicle of similar description from the judgment debtor said to be a car dealer.
Therefore one would expect that claimant’s emphasis, once he learnt that the car had been
attached and delivered because of a prior sale by the judgment debtor, would have put his
energies on getting his money from the seller whom he had asked to sell the car. After all the car
was for all intents and purposes “sold”. If the claimant’s car was there for sale when effectively a
buyer had already been found, it is for the judgment debt to pay the claimant for the car since it
was money that the claimant expected from placing his car there.
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       Whilst documents were attached showing the year the car came into Zimbabwe, there
was insufficient evidence placed before this court even on a balance of probabilities, to show that
indeed at the time when the car was attached nearly 21 months later in 2019, it was still in the
ownership of the claimant. Despite the documents dating from the events in 2017 being
furnished, this court is not satisfied that the claimant proved ownership on a balance of
probabilities that as at 2019 when the vehicle was attached at the premises of Brandhope, its
ownership was not with Brandhope. The delay in bringing forth the claim by almost a year also
raises adverse inferences.
       Accordingly the order for the interpleader is granted in the alternatively thus:
   1. The claimant’s claim to the movable property which was placed under attachment in execution of
       judgment in HC 5778/16 is hereby dismissed.
   2. The attached and delivered movable property, namely a certain motor vehicle Ford Iveco with
       engine number 23419 delivered in terms of a writ of Delivery in execution of judgment HC
       5778/18 is hereby declared executable
   3. The claimant shall pay the applicant and judgment creditor’s costs on an ordinary scale.


Dube-Banda Nzarayapenga & Partners: Applicant’s Legal Practitioners