The Sheriff of Zimbabwe v Roy Luthe Sibona Moyo and Mega Market (Private) Limited

### Preamble
1
HMA 37-20
HC 24-20
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THE SHERIFF OF ZIMBABWE

and

ROY LUTHE SIBONA MOYO

and

MEGA MARKET (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO 28 MAY, 2020 & 29 JULY, 2020

Opposed Application - Interpleader

J. Mpoperi, for the applicant

W. Muzenda, for claimant

J. Chipangura, for judgment creditor

ZISENGWE J:  	This is an interpleader application brought in terms of Order 30 Rule 205 A of the High Court Rules, 1971. The subject matter of contestation being a 45 year old Mazda B 1600 pick-up truck Registration Number AAH 9248 (the motor vehicle). This motor vehicle was attached by the Sheriff pursuant to a judgment by this court in case No. HC 7513/17. In that case the judgment creditor obtained judgment against three co-defendants; Zimside Logistics (Private) Limited, Elliot Matanga and Charles Mathe for the payment of a total sum of $39 582 for what is described in the court order as “loss of goods and costs incurred in the recovery of goods” together with interest thereon and costs of suit.

According to the notice of seizure and attachment (Annexure ‘C’) the said motor vehicle was attached at some premises referred to as 323 B Chaduka Road, Tshovani, Chiredzi which the claimant confirms as the residence of the judgment debtor. Although the claimant does not specify which of the three judgment debtors resides there, his accompanying explanation appears to imply that he was in fact referring to the 3rd judgment debtor.

In the wake of the attachment in execution of the motor vehicle, the claimant laid claim to the same prompting the Sheriff to institute these current proceedings. The claimant alleges that the motor vehicle is not liable for execution in (partial) satisfaction of the judgment debt as it belongs to him that he has nothing to do with either the dispute or the parties thereto, save for his entirely separate business arrangement with the third judgment debtor.

In his bid to prove ownership of the motor vehicle, the claimant attached a copy of the registration book of the motor vehicle. What he seeks therefore is an order declaring that the motor vehicle belongs to him and should be released as it is not liable for execution in case number HC 7513/17.

The claimant proffers a somewhat curious explanation regarding the circumstances leading to the 3rd judgment debtor being in possession of the motor vehicle. It is his version that he is in the business of buying and selling fruits and vegetables. To that end, he entered into an agreement with the third judgment debtor (presumably Charles Mathe) in terms of which the latter would purchase the said agricultural produce in the Lowveld and deliver the same to him in Beit Bridge where he is resident. Further, in terms of that agreement, he (i.e. claimant) is responsible for providing transport and that explains how his Mazda pick-up truck ended up in the possession of the 3rd judgment debtor. Solely for purposes of convenience and ease of reference, this explanation will be referred to as the “fruit and vegetable explanation”.

The judgment creditor in disputing claimant’s assertion of ownership of the motor vehicle contends in the main that he (i.e. claimant) has woefully failed to establish that it (i.e. the motor vehicle) belongs to him. Relying principally on the case of Air Zimbabwe (Pvt) Ltd & Anor. v Nhira & Ors SC 65-14, it was argued that the production of the motor vehicle registration book cannot and should not be construed as conclusive proof of his ownership of that motor vehicle.

Further, it was contended that the explanation advanced for the judgment debtor’s possession of the motor vehicle is inadequate and ineffectual given the presumption of ownership that attends to possession of movables. It was argued that in any event the fruit and vegetable explanation amounts to no more than a bald and unsubstantiated explanation.

The following principles are applicable in the resolution of disputes of this nature where the claims of the judgment creditor and that of the claimant are adverse and mutually exclusive. Firstly, in interpleader proceedings the onus is on the claimant to prove ownership of the disputed property (see Bruce N.O. v Josiah Parkes and Sons (Rhodesia) Limited & Another 1971 (1) RLR 154, Joyce Muzanenhamo v Fishtown Investment Private Limited & Ors SC 8/2017).

Secondly, possession of movables raises the presumption of ownership (Phillip N.O. v National Foods and Anor 1996 (1) ZLR 532 (H); Zandberg v Van Zyl 1910 AD 258) and therefore where the moveable property is attached whilst in the possession of the judgment debtor, the onus of proving ownership rests on the claimant.

The oft quoted passage from Bruce N.O. v Josiah Parks Ltd & Sons (supra) sets out what the claimant needs to do to assert ownership of the disputed property. The following was said;

“In interpleader proceedings, the claimant must set out such facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence”.

If suffices to point out that the threshold of proof required to assert ownership is, of course, on a balance of probabilities (Sheriff of Zimbabwe & Anor. v Local Authorities Pension Fund HH 586 – 16).

The crisp issue for determination, therefore, is whether or not through the production of the motor vehicle Registration book in his name, coupled with the “fruit and vegetable explanation” the claimant has managed to rebut the presumption of ownership that attaches to the judgment debtor by virtue of his possession of the motor vehicle. The claimant insists that he has managed to do so but the judgment creditor contends contrariwise.

It is evident that the claimant was perhaps too presumptive and probably laboured under the misapprehension that the motor vehicle registration book showing its registration in his name was dispositive of the matter (in his favour). He was, of course, required to go beyond that in view of the stark warning inscribed therein which warning reads:

WARNING

“This registration book is not proof of legal ownership”

The reasons for this are not too far to find; firstly, assuming that the registration of a motor vehicle in one’s name is proof of ownership can be inaccurate and misleading given the fact that not infrequently ownership of motor vehicles changes without the parties bothering (or merely delaying) to take the relevant steps to regularise such change of ownership. By “regularisation” is meant having the registration book endorsed accordingly. One can equally envisage an arrangement where the name in the registration book is changed to deceive and frustrate possible creditors. Yet another common scenario is the hire-purchase arrangement where during the currency of the loan period, the vehicle usually gets to be registered in the name of the purchaser but ownership continues to vest in the loan provider. These examples only serve to illustrate the rationale behind the principle. It is not necessarily being implied that any of them are applicable in casu.

The principle that a registration book is not proof of ownership has been underscored in several decisions. See for instance Air Zimbabwe (Private) Limited and Another v Stephen Nhuta and 2 Others, (supra); The Sheriff of Zimbabwe & Anor v Local Authorities Pension Fund HH 585-16.

What ultimately detracts from claimant’s assertion of ownership of the motor vehicle is his failure to attach to his papers any other satisfactory documentation consistent with such claim ownership. He could for instance, in addition to the registration book, have attached documentary proof of recent motor vehicle licencing payment (in his name) with the Zimbabwe National Roads Administration (ZINARA), motor vehicle insurance payment invoices/receipts in his name, recent motor vehicle service invoices in his name, confirmatory affidavits from persons who can positively attest (with reasons) to claimant’s claim of ownership, or proof of purchase of the motor vehicle etc. This list is neither prescriptive nor exhaustive.

With regard to the “fruit and vegetable explanation”, it too suffers from a paucity of supporting evidence. It amounts to no more than a bald averment. It behoved the claimant to substantiate it with cogent evidence in its support. He does not in the least state whether the claimed agreement between him and the 3rd judgment debtor for the procurement by the latter, of fruit and vegetables was a written or oral one. If it was the former, he could have attached a copy of the same. He does not explain when and where the agreement was concluded and when he surrendered the motor vehicle to the 3rd judgment debtor.

Also conspicuous by their absence are supporting affidavits from people who are party or privy to the claimed agreement (compare for example, with the extent to which the claimant in Deputy Sheriff Marondera v Traverse Investments (Private) Ltd & Anor. HH-11-2003 went to assert and prove ownership of raw animal hides which were the subject matter in the interpleader proceedings).

Ultimately therefore, the claimant has dismally failed to discharge the onus resting on him to prove ownership of the disputed motor vehicle and accordingly the following order is hereby made:

IT IS HEREBY ORDERED THAT:

The claimant’s claim to a Mazda B 1600 yellow in colour ($1 500) which was placed under attachment in execution of judgment in HC 7513/17 is hereby dismissed.

The Mazda B 1600 yellow in colour ($1 500) attached in terms of seizure and attachment dated 5 November, 2019 issued by applicant is hereby declared executable.

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

Saratoga Makausi Law Chambers, applicant’s legal practitioners

Muzenda and Chitsama, claimant’s legal practitioners

Honey and Blackenberg, judgment’s creditor legal practitioners.