The Sheriff of the High Court v Casper Briel and Njere Trading (Pvt) Ltd and JG Construction (Pvt) Ltd

### Preamble
1
HH 210-17
HC 9835/16
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THE SHERIFF OF THE HIGH COURT

versus

CASPER BRIEL

and

NJERE TRADING (PVT) LTD

and

JG CONSTRUCTION (PVT) LTD

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 16, 22 March and 5 April 2017

Opposed Application

S. Muzondiwa, for applicant

D. Sheshe, for claimant

I. Chiwara, for judgment creditor

MUSAKWA J: In execution of the judgment in HH- 419-14 the applicant attached certain movables. The claimant having deposed to an affidavit in which he claimed ownership of some of the attached goods, the applicant issued an interpleader notice.

In his affidavit of claim the claimant averred that he was not a party to the proceedings in HH- 419-14. He claimed ownership of the following attached property: Tipper trailer registration number ACL 1476, truck trailer registration number ABS 0610, 6 scaffolds, flat jack, steel ladder and scaffolding planks. He attached an affidavit dated 2 September 2016 in which he listed the items claimed. There is also an agreement of sale in respect of Tipper Trailer registration number 520-763 W, a registration book in respect of a Tipper registration number ACL 1476, agreement of sale in respect of Tandem Trailer registration number ABS 0610, a registration book for a Tandem trailer and an invoice for scaffolding material dated 9 November 2008. In his opposing affidavit the claimant simply reiterated that he is the owner of some of the attached property. He referred to the affidavit of claim.

On the other hand, Kelvin Weare the managing director of the judgment creditor deposed to an opposing affidavit on its behalf. He averred that he believes the claimant is an employee or officer of the judgment debtor. This is because the claimant was a representative of the judgment debtor in case number HC 7339/10. The claimant presented himself as a senior manager of the judgment debtor. Arising from such a relationship is the possibility of collusion between the claimant and the judgment debtor.

Concerning the Tipper trailer it was contended that the registration book shows that it is registered in the name of Enkay Coal & Trucking (Pvt) Ltd. The agreement of sale relied upon by the claimant shows the seller as Encay Coal & Trucking (Pvt) Ltd. Apart from the disparity in names the agreement was not witnessed.

As for the Tandem trailer, it is contended that it is registered in the name of the judgment debtor. Despite the agreement of sale having been concluded on 14 January 2016, there was no change of ownership within fourteen days in accordance with the provisions of the Vehicle Registration and Licensing Act [Chapter 13:14]. Thus it is contended that no explanation was tendered on why there has been no change of ownership.

As regards the scaffolding material, it is contended that the material was packed in four different containers. The Sheriff picked the items randomly. It is highly improbable that the items would turn out to be the same as itemised in the tendered invoice.

Mr Sheshe for the claimant largely abided by the heads of argument filed. In his oral address he submitted that the judgment creditor is demanding too much from the claimant. Without reference to any authority he also submitted that the court can order costs to be awarded against the judgment debtor. In his view this is because it is the judgment debtor’s conduct that brought about the attachment of the claimant’s property. In the heads of argument, it was submitted that mere suspicion of collusion between the judgment debtor and the claimant is not enough. In support thereof reference is made to the case of The Sheriff of The High Court v Munyaradzi Yutini Majoni HH 689-15. For the first time it was acknowledged in the heads of argument that the claimant is an employee of the judgment debtor. As such, it was further submitted that the liability of the judgment debtor should not affect the claimant as the judgment debtor is a separate legal entity. Reference was made to the case of Gumbo v Steelnet (Zimbabwe) (Pvt) Ltd & Another HB 84-13.

Mr Chiwara submitted that where the attached property is found in possession of the judgment debtor it is presumed that it belongs to the judgment debtor. He referred to the same authority of The Sheriff of The High Court v Munyaradzi Yutini Majoni supra. He also pointed out that the presumption that the attached goods are owned by the judgment debtor had not been rebutted.

Mr Chiwara’s second point was that there is a high likelihood of collusion between the judgment debtor and the claimant. He made numerous references to anomalies in the documents that the claimant is seeking to rely on. He also questioned the acquisition of construction equipment by the claimant when he was not conducting such business in his personal capacity. Mr Chiwara further submitted that at some stage the claimant represented the judgment debtor in the litigation that culminated in the judgment debt.

The law on interpleader proceedings is well settled. A claimant in interpleader proceedings bears the burden of proving ownership of the attached goods. Goods that are found in possession of the judgement debtor are presumed to belong to the judgment debtor. In this respect see The Sheriff of The High Court v Munyaradzi Yutini Majoni And Others supra.

In the present matter, the claimant should have been more candid with the court, considering his relationship with the judgment debtor. That relationship was only disclosed in the claimant’s heads of argument and not in the affidavit of claim or the opposing affidavit. Mr Chiwara went to great lengths to highlight a number of anomalies which cast doubts on the claimant’s ownership of the attached goods.

The agreement of sale between Encay Coal and Trucking (Pvt) Ltd and the claimant in respect of Tipper Trailer and the accompanying vehicle registration book have two anomalies. The address for the purchaser (claimant) in the agreement is the same as that of the owner in the registration book. The owner is reflected as Enkay Coal D. Trucking P/L. In addition, there was no attempt to explain the discrepancies between Encay Coal and Trucking (Pvt) Ltd and Enkay Coal D. Trucking P/L.

The agreement of sale between JG Construction and the claimant in respect of the Tandem trailer is on a JG Construction letterhead showing its address as 117 Coronation Avenue Greendale. However, the address in the registration book is 21 Edinburgh Road, Borrowdale. This appears to be the same address in respect of the Tipper trailer and that of the claimant except that on the other documents the suburb is stated as either Pomona or Vainona. Again, this was not explained by the claimant.

The claimant claims to have purchased the attached property and left it at the judgment debtor’s premises for safe keeping, that is at 117 Coronation Avenue Greendale. That is the address where execution took place.  The Tipper trailer is given as having been purchased on 5 November 2008 and the transaction in respect of the Tandem trailer took place on 26 January 2016. No change of ownership was effected despite the requirement that this be done within fourteen days in terms of s 14 (1) of the Vehicle Registration and Licensing Act.  The scaffolding material is given as having been purchased from Collmass Investments T/A Africa Supply Services of 17 Kelvin Road, Harare on 9 November 2008. It is questionable whether the claimant genuinely purchased such property. It means that property had been lying idle for eight years until the Sheriff happened to attach it.

In light of the murky details surrounding the claimant’s claim of ownership of the attached property, the likelihood of collusion with the judgment debtor cannot be ruled out. This is heightened by the fact that the claimant is a senior employee of the judgment debtor. Therefore I am not satisfied that the claimant has satisfactorily proven ownership of the attached property.

In the result, it is ordered as follows-

The applicant is authorised to proceed with execution.

The claimants are ordered to pay the applicant’s and judgment creditor’s costs.

Sawyer & Mkushi, applicant’s legal practitioners

Chadyiwa & Associates, claimant’s legal practitioners

Coghlan Welsh & Guest, judgment creditor’s legal practitioners