Tourvest Holdings (Private) Limited v Jesca Makonye & 2 Others

### Preamble
Judgment No. SC 70/25
1
Civil Appeal No. SCB 118/24
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REPORTABLE	(70)

TOURVEST     HOLDINGS     (PRIVATE)    LIMITED

v

JESCA     MAKONYE      (2)      SAZISO     NCUBE     (3)    MESSENGER     OF     COURT     HWANGE     DISTRICT

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MAKONI JA & CHATUKUTA JA

HARARE: JULY 23 & 24, 2025

T. Zhuwarara, for the appellant

The first and second respondents in person

CHATUKUTA JA:

[1]	This is an appeal against the whole judgment of the High Court (court a quo) sitting at Bulawayo as an appellate court and handed down on 30 October 2024 under judgment number HB-42-25.  The court a quo dismissed an appeal by the appellant against a judgment of the Magistrates Court.  The Magistrates Court had dismissed an application for interpleader in which the appellant was the claimant.

[2]	After hearing the parties, the Court dismissed the appeal with costs.  The following are the reasons for the dismissal.

FACTUAL BACKGROUND

[3]	The appellant is a South African registered company and the claimant in the interpleader proceedings instituted before the Magistrates Court.  The first and second respondents are former employees of a company called Drifters Adventure Tours (Private) Limited (the judgment debtor).  The third respondent is the Messenger of Court for the Hwange District, cited in his official capacity as the executing authority who attached the property in dispute in this appeal, pursuant to a writ issued in favour of the first and second respondents.

[4]	The dispute in this appeal concerns the seizure by the third respondent of a Hino 500 truck (the truck), with South African registration number HB62BCGP.  The truck was seized in execution of a judgment obtained by the first and second respondents against the judgment debtor.  The appellant caused the issuance of interpleader proceedings in the Magistrates Court by lodging a claim with the third respondent.

[5]	The appellant contended in its claim that it was the sole and lawful owner of the truck and that the attachment was wrongful and unlawful as the truck did not belong to the judgment debtor. It contended that it purchased the truck in South Africa and registered it in its name in South Africa.  The truck had been imported into Zimbabwe under a Temporary Import Permit (TIP) issued by the Zimbabwe Revenue Authority (ZIMRA).  The appellant tendered, as proof of these contentions, copies of the invoice issued by the seller of the truck, Hino Honeydew, proof of payment of the purchase price, the vehicle registration book and the TIP.   It submitted that the name Drifters Adventure Tours inscribed on the seized truck is that of a division of the appellant and has no connection whatsoever with Drifters Adventure Tours (Private) Limited, the Zimbabwean judgment debtor.  The appellant denied any legal or operational relationship with the judgment debtor.  It maintained that the attachment was based on a mistaken identity and should be set aside.

[6]	The first and second respondents opposed the interpleader claim, arguing that they had been employed by Drifters Adventure Tours (Private) Limited and that the truck in question was used by that company in the course of its operations.  They stated that the truck bore the branding, colours, and logo of the judgment debtor and had been used to ferry clients and transport employee salaries from South Africa during their employment with the judgment debtor.

[7]	The first and second respondents disputed the validity of the documents produced by the appellant on the basis that the documents were unauthenticated and that some of the documents were illegible.  They also contended that Drifters Adventure Tours and not the appellant appeared on the TIP as the owner of the seized truck.  They argued that this confirmed the close relationship between the appellant and the judgment debtor.  They further argued that the appellant had failed to prove its ownership of the truck.

[8]	The Magistrates Court dismissed the appellant’s interpleader claim.  It found that the appellant had not produced clear and satisfactory evidence to establish on a balance of probabilities its ownership of the vehicle.  It remarked that the vehicle registration book submitted by the appellant was an uncertified copy and was therefore inadmissible as reliable evidence.   It held that the fact that the judgment debtor was identified in the TIP as the owner of the truck was proof that the appellant was not the owner of the truck.  It found that the appellant’s invoice purportedly issued by the seller of the truck, described the truck as belonging to Drifters Adventure Tours and that Drifters Adventure Tours was a division of the appellant.  It held that this was supportive of the first and second respondents’ contention that the appellant could not disassociate itself from the judgment debtor.  The court a quo further held that the truck had the judgment debtor’s name inscribed on it was proof that it was the owner of the truck.  It accordingly found that the attachment was lawful and dismissed the claim.

[9]	On appeal to the court a quo, the appellant argued that the Magistrates Court erred in concluding that the judgment debtor was a division of the appellant.  It persisted with its submissions that Drifters Adventours is a distinct trading name of the appellant, a South African company, and is unrelated to the Zimbabwean registered Drifters Adventure Tours (Private) Limited.  It further argued that the vehicle’s branding or logo was not dispositive of the question of ownership of the truck.  The appellant also challenged the Magistrates Court’s rejection of the uncertified registration book.  It argued that the registration book bore its name as the registered owner of the truck and was therefore proof of its ownership.  It further argued that the attachment should be set aside.

[10]	In response, the first and second respondents reiterated that the truck in question was used by the judgment debtor in its operations and transporting clients and at times to deliver their salaries from South Africa.  They emphasised that the vehicle bore their employer’s name and logo.  They submitted that the TIP linked the vehicle to Drifters Adventure Tours, arguing that these showed the two entities, the appellant and the judgment debtor, were either the same or closely related.

[11]	The High Court dismissed the appeal, finding no fault with the findings of the Magistrates Court.  It held that the appellant had failed to discharge the onus of proving its ownership of the truck.  The Court emphasised that the truck was clearly marked with the name and colours of the judgment debtor.  It also upheld the findings by the Magistrates Court on the inadmissibility of the registration book produced by the appellant in the Magistrates Court.  It accordingly dismissed the appeal with costs.

[12]	Further aggrieved, the appellant noted the present appeal on the following grounds of appeal:

GROUNDS OF APPEAL

1.	The court a quo seriously misdirected itself in finding that the Hino truck was attached at the judgment debtor premises.  The court’s finding was contrary to the facts on the record.

2.	The court a quo seriously misdirected itself in finding that (Drifters Adventours) and the judgment debtor (Drifters Adventure Tours Pvt Ltd) are the same.

3. 	The court a quo seriously misdirected itself in finding that the logo and the colours of the attached Hino Truck were the same with trucks that belonged to the judgment debtor. The court’s finding was contrary to the facts on the record.

4.	The court a quo seriously misdirected itself in finding that the appellant did not produce a copy of the registration book.  This finding was contrary to the facts on the record.

SUBMISSIONS BEFORE THIS COURT

Applicant’s Submissions

[13]	The appellant contended that it discharged the onus of proving ownership by tendering the vehicle registration book, temporary import permit, purchase invoice, and proof of payment in the Magistrates Court.  It maintained that it is a South African registered company and that the truck, registered in its name was not ordinarily situate in Zimbabwe.  It was in Zimbabwe under a valid TIP issued by ZIMRA.  The appellant argued that in terms of Civil Evidence Act [Chapter 8:01] (the Civil Evidence Act) it was not obliged to produce the original TIP or certified documents.  It further argued that the TIP is a public document which is admissible in terms of s 12 of the Civil Evidence Act on its mere production.  It asserted that the documentary evidence, coupled with the sworn denials of association with the judgment debtor, was sufficient to prove ownership on a balance of probabilities.  It further argued that the court a quo therefore misdirected itself in disallowing the South African registration book. It also argued that court a quo misdirected itself in equating Drifters Adventours, a division of the appellant, with Drifters Adventure Tours (Private) Limited, the Zimbabwean judgment debtor.  It submitted that the truck’s branding and logo, while similar, are not determinative of ownership and that the court improperly rejected the registration book despite it identifying the appellant as the registered owner.

Respondent’s submissions

[14]	The first and second respondents persisted with their submissions that the truck was used by their employer, the judgment debtor during their tenure of employment.  They submitted that the truck bore the colours, branding, and logo of the judgment debtor.  They maintained their challenge of the authenticity, legibility and admissibility of the documents presented by the appellant, particularly the uncertified registration book.  They argued that the appellant had the opportunity between the date of seizure of the truck and the lodging of its claim to produce before the Magistrates Court authentic documents given advances in technology and proximity to South Africa.

[15]	The respondents also argued that the TIP was supportive of their contention that the truck belonged to the judgment debtor.  They submitted that the truck was used during the 2008 economic meltdown in Zimbabwe to bring from South Africa provisions for the employees and envelopes containing their salaries.  They submitted that the judgment debtor was a huge company operating regionally in Zambia, Botswana, Namibia and South Africa.

ISSUE FOR DETERMINATION

[16]	The four grounds of appeal raised by the appellant are repetitive and interlinked.  They are not distinct legal questions but rather components of a single inquiry into whether the appellant discharged the onus of proving that it owned the truck.

[17]	The sole issue for determination in this appeal is therefore whether or not the court a quo erred in upholding the findings of the Magistrates Court that the appellant failed to prove ownership of the attached truck.

APPLICATION OF THE LAW TO THE FACTS

[18]	It is trite that a party claiming ownership of a property under judicial attachment in interpleader proceedings must produce clear and satisfactory evidence to prove such ownership.

(See Sabarauta v Local Government Pension Fund & Anor SC 77/17 and Welli-Well Pvt Ltd v Imbayago & Anor SC 8/21)

[19]	In an attempt to prove its ownership of the truck, the appellant produced four documents in the Magistrates Court.  The first document was a copy of a South African vehicle registration book which described the appellant as the owner of the truck.  The second document was illegible, but purported to be a copy of the invoice from the seller of the truck.  It was contended that it was apparent on the face of the document that the purchaser of the truck was Drifters Adventours which is a division of the appellant.  Also produced was a document purported to be proof of payment of the truck.  Lastly, the appellant produced a copy of the TIP which identified Drifters Adventours truck.

[20]	The above referred documents were all copies.  The appellant initially contended that the Civil Evidence Act permitted the mere production of such copies into evidence, more particularly the TIP as it was a copy of a document issued by a government official.  However, upon engagement with the Court, counsel for the appellant conceded that ss 11 and 12 proscribe the admission of copies into evidence except in limited circumstances.  Whilst both the Magistrates Court and the court a quo did not make any reference to the Civil Evidence Act, the question as to its applicability in the present case was argued by the appellant before this Court.

[21]	Section 11 of the Civil Evidence Act provides that a copy of a document shall not be admissible into evidence in order to prove the contents thereof.  The section further provides for exceptions to that position. It reads:

“11 Admissibility of copies of documents.

Except as otherwise provided in this Act or any other enactment, a copy of a document shall not be admissible to prove the document’s contents, unless—

(a) All the parties to the civil proceedings concerned consent to the production of the copy; or

(b) The court in its discretion permits the production of the copy, being satisfied that the original document—

(i) has been destroyed or is irretrievably lost; or

(ii) is in the possession of another party to the civil proceedings, who refuses to produce the original document; or

(iii) is in the possession of a person who cannot be required by law to produce the original; or

(iv) is outside Zimbabwe; or

(v) for any other good and sufficient cause, cannot reasonably or practicably be produced.”

[22]	None of the exceptions spelt out in the section were applicable in this case.  The first and second respondents did not consent to the production of the copies.  They, in fact, challenged the authenticity of the documents.  In spite of the challenge, the appellant failed to produce the original documents.  The appellant argued that the original documents were in the possession of drivers of the vehicle who had returned to South Africa. It did not argue that the documents had been destroyed or were irretrievably lost. It did it argue that any of the drivers was a party to the interpleader proceedings or were precluded by law to produce the original documents. As correctly argued by the first and second respondents, there was nothing that precluded the appellant from producing the original documents even those alleged to have been outside Zimbabwe.  There was ample time between the attachment of the truck and the determination of the interpleader procedures for the appellant to have arranged for any original document outside Zimbabwe to be brought into the country and produced before the Magistrates Court.  The danger of accepting copies were aptly articulated by the Magistrates Court when it remarked that:

“In this world of computers, it is very easy to get into a computer and produce a copy that looks like an original hence the need for copies to be certified as originals.”

[23]	Section 12 which relates to the production of public and official documents provides that:

“12 Public and official documents.

(1) ….

(2)  A copy of or extract from a public document which is proved to be a true copy or extract or which purports to be signed and certified as a true copy or extract by the official who has custody of the original, shall be admissible in evidence on its production by any person and shall be prima facie proof of the facts stated therein.

(3)  A copy of or extract from a document, other than a public document, which is in the custody of an official of the State by virtue of his office and which is proved to be a true copy or extract or which purports to be signed and certified as a true copy or extract by the official who has custody of the original, shall be admissible in evidence on its production by any person.”

[24]	The above section would relate to the admissibility of the TIP which was issued by ZIMRA.  Again, there was no attempt whatsoever by the appellants to prove that the TIP was a true copy of the original.  The appellant did not explain why the original TIP could not be produced before the Magistrates Court.

[25]	The concession by counsel for the appellant that the documents did not meet the requirements of the Civil Evidence Act was therefore properly taken and put the matter to rest.  As enunciated in Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd & Anor 2013 (2) ZLR 309 (S), this Court can only interfere with the decision of an inferior court based on findings of fact where there is a clear misdirection or the decision reached is irrational.  The findings of fact by the court a quo and equally by the Magistrates Court that the appellant failed to produce clear, satisfactory, and authenticated evidence of ownership sufficient to displace the presumption that the truck belonged to the judgment debtor does not defy logic or evidence.

[26]	The appeal was therefore devoid of merit and warranted to be dismissed.  Costs follow the cause.

DISPOSITION

[27]	It is for the above reasons that the Court dismissed the appeal with costs.

GUVAVA JA		:		I agree

MAKONI JA		:		I agree

Mvhiringi & Associates, the appellant’s legal practitioners