The Sheriff for Zimbabwe v Clara Maposa Kanengoni and Israel Nyandoro

### Preamble
1
HH 594-18
HC 7815/16
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THE SHERIFF FOR ZIMBABWE			APPLICANT

versus

CLARA MAPOSA KANENGONI			CLAIMANT

and

ISRAEL NYANDORO				JUDGMENT CREDITOR

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 25 July, 2017 and 3 October 2018

Opposed Matter

T. Makaka, for the applicant

E. Mubaiwa, for the Claimant

T. Chiriseri, for the Judgment Creditor

NDEWERE J: On 24 June, 2016, the applicant attached movable property in execution of a writ in the case of Israel Nyandoro v George Ngonidzashe and Future Petroleum (Pvt) Ltd HC 4711/10. The property attached was listed as follows:

(a)	2 x Generators

(b)	1 x gas stove and two cylinders

(c)	1 x Defy fridge

(d)	1 x Microwave

(e)	1 x leather sofa set

(f)	1 x Sony TV

(g)	1 x coffee table

(g)	1 x Brow leather sofa

(i)	1 x sharp TV

(j)	1 x coffee table

(k)	2 x centre rugs

(l)	1 x black couch

The claimant filed a claim on 29 June, 2016 of the attached goods. As a result, the applicant issued an interpleader notice on 1 August, 2016, calling upon the claimant and Judgment Creditor to file particulars of their claim in terms of the High Court Rules within 10 days after service of the notice upon them.

The Judgement Creditor filed an opposing affidavit on 12 August 2016. He dismissed the claimant’s claim as mere collusion between a husband and wife and asked that the attached gods be declared executable.

The Claimant filed an opposing affidavit on 17 August, 2016. She attached proof that she purchased the goods which the applicant had attached and that the goods belonged to her and not to the Judgment Debtor. Both parties submitted Heads of arguments which reiterated their respective positions.

It is trite law that a claimant in an interpleader case must prove that he/she owns the attached goods. It is also trite law that the court must guard against collusion between spouses where one spouse is the judgment debtor and the other the claimant.

The court considered the submissions by both parties and noted that although the claimant stated that she had attached proof of her ownership of the attached goods, the proof she furnished did not cover all the goods which were attached.

On p 11, she provided documents relating to a mirage bedroom suite dated 4 August, 2015. Yet it was not one of the items on the list of the attached goods. So that receipt is irrelevant.

On p 12, there is proof of payment for a petrol generator totalling $126.50 by the Claimant on 19 November, 2014. On p 13, there is proof of payment by the Claimant for two generators, petrol and diesel totalling $809 on 19 November, 2014. All three generators were bought on the same day from Hammer and Tongues (Pvt) Ltd Auctioneers, two petrol and one diesel. The attachment list simply indicates that two generators were attached. The type is not described, but this is a detail which counsels for the three parties can ascertain. It appears the two generators attached are from the three which the claimant bought as proven by the documents from Hammer & Tongues.

The last receipt is on p 14. It is dated 6 May, 2015. It should be read together with the receipt on p 11 of the same date which confirms a payment of $3 500.00. On p 14, we are informed that the payment was for a 4 piece Sabre Manual Ox Blood and a figure of $ 3 500.00 appears as the total purchase price. On the list of the attached goods, there are two sets of leather sofas. One is described as 1 x Brown leather sofas. Could the “ox Blood” colour be the one referred to as 1 X Brown leather sofa? The parties did not clarify this detail. However, this is a detail which all the parties to the interpleader can easily ascertain; otherwise the receipt on p 11 is proof that indeed the Claimant bought the sofas described in the receipt. So the set which she bought should be released to her.

The Judgment Creditor argued about the fact that since the Claimant is wife to the judgment debtor, her claim is just collusion to frustrate the Judgment Creditor. However, what the Judgment Creditor needs to note is that unlike in South Africa marriages in Zimbabwe are out of community of property. The fact that a spouse can claim a share upon divorce or death does not divest the ownership rights from the owner of the property when the marriage is out of community of property.  The Claimant therefore remained the owner of the property which she purchased up to the time of its attachment.

The Judgment Creditor suggested collusion, but he did not adduce any evidence that supported collusion in respect of the property which Claimant was able to prove to be her own. The fact that the Claimant is said to be a director of the second Judgment Debtor does not take the Creditor’s Claim any further because the Judgment Debtor was the company, not its directors. If the idea was to claim the debt from Claimant as a director, then she ought to have been joined as a party.

To conclude, the Claimant was able to prove ownership of two generators and one set of leather sofas. She did not provide any proof of ownership of the rest of the attached goods. Therefore the rest of the goods are executable. The fact that she had receipts for the generators and one set of sofas does not prove that she owned the rest of the property. Since the property was found on the judgment debtor’s address, the presumption that it belonged to him operated in favour of the judgment creditor, with the exception of the property which the claimant proved she owned.

It is therefore ordered as follows:

The claimant’s claim to 2 x generators and 1 x brown leather sofa is hereby granted. The property is hereby declared not executable.

The claimant’s claim to the rest of the property attached in HC 4711/10 dated listed 24/04/2016 listed hereunder is hereby dismissed. The following property is declared executable:

1 x gas stove and two cylinders

1 x Defy fridge

1 x Microwave

1 x leather sofa set

1 x Sony TV

1 x Coffee Table

1 x Sharp TV

1 x Coffee table

2 x Centre Rugs

1 x Black couch

The Judgment Creditor shall pay the Claimant and applicant’s costs in relation to the 2 generators and one leather sofa on the ordinary scale.

The Claimant shall pay the Judgment creditor’s and applicant’s costs in relation to the property declared executable and listed in (ii) above on an ordinary scale.

Kantor & Immerman, applicant’s legal practitioners

Bvekwa Legal Practice, Claimant’s legal practitioners

Mutuso, Taruvinga and Mhiribidi, Judgment Creditor’s legal practitioners