The Sheriff of Zimbabwe and Joachim Yotamu and Ronald Madzura v Tian Ze Tobacco Company (Pvt) Limited

### Preamble
1
HH 309-21
HC 4052/18
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THE SHERIFF OF ZIMBABWE

and

JOACHIM YOTAMU

and

RONALD MADZURA

versus

TIAN ZE TOBACCO COMPANY (PVT) LIMITED

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE 20 September, 2018 & 23 June 2021.

Interpleader Application

F Mabungu, for the Applicant

J Mangeyi, for claimants

G K Muchapireyi, for judgment Creditor

CHITAPI J: The applicant is the Sheriff for Zimbabwe. He brings this application in terms of Order 30 r 205A as read with r 207 of the High Court rules 1971. In terms thereof, the Sheriff who has attached property in execution of a writ issued by this court may approach the court for a determination of adverse claims where a claim(s) is made to the attached property by a party who is not the judgment debtor.

The nature of the interpleader was set out in simple narration by mafusire J in the case: The Sheriff of The High Court v Munyaradzi Yutini Majom and 3 Ors HH 689/15 as follows, quoting from p 4 of the cyclostyled judgment:

“In interpleader proceedings, the approach seems straight forward. By virtue of Order 30 the 	interpleader proceedings commence by way of a court application. Interpleader arise because two 	or more persons both or all, claim ownership of the same property. In the case of a judicial 	attachment the sheriff or his deputy initiates the process by depositing the adverse claims with the 	court and deposing to an affidavit in support of the interpleader notice. The Sheriff eventually drops 	out, only retaining an interest for his costs. The claimants are left to fight it out between, or amongst, 	themselves.

The court makes a determination on the papers. Where it is unable to do so by reason of an irreconcilable dispute of fact, it may refer the matter to trial with specific directions. It can direct who between or amongst the claimants shall be plaintiff(s) and who defendant(s). It ensures as much as possible that no party should carry an advantage or disadvantage when it gives directions on whom the duty to begin falls; who the onus of proof lies on and which specific issue should be referred to trial: See Zandberg v Van Zyl 1910 AD 258 Greenfield N.O v Bhgnaught & Ors 1953 SR 73 Bruce N.O v Josiah Parkes & Sons (Rhod) (Pvt) Ltd & Anor 1971 (1) RLR 154 (G) Phillips N.O v National Foods Ltd & Anor 1996 (2) ZLR 532(H) and Deputy Sheriff Marondera v Traverse Investments (Pvt) Ltd HH 11/03”

In casu, the judgment creditors as applicant obtained judgment against the respondent, one John Yotamu in an arbitral award dated on 26 February, 2014. The award was for payment of US$80 509.05 with interest thereon at the prescribed rate of 5% per annum reckoned from 30 September 2012 to the date of full payment and costs of suit. The arbitral award was registered by this court under case No. HC 7536/14 for purposes of enforcement as provided for in the labour Act, [Chapter 28:01]. Consequent upon the registration aforesaid, the judgment creditor caused the registrar to issue a writ of execution against movable property to realise the amounts stated in the writ.

The judgment creditor then lodged the writ of execution with the Sheriff, applicant herein for actioning. The applicant then proceeded to Mission Vlei Farai, Zvimba, the address alleged to be that of the judgment debtor in the writ of execution. The applicant attached movable property as fully described in the notice of seizure attached to the applicant’s founding affidavit. The attachment was executed on 16 April, 2018. The details of the attached property were a Massey Ferguson 440 tractor, a YTO tractor and Toyota ipsum motor vehicle registration number ABX 6582.

Following on the attachment, the applicant received adverse claims from the 1st and 2nd claimants herein. The 1st claimant claimed ownership of the Massey Ferguson tractor whilst the 2nd claimant claimed ownership of the YTO tractor and the Toyota Ipsum motor vehicle. In his affidavit of claim the 1st  claimant averred that he was the lease holder of farm; sub-division 2. Mission Vlei Farm, Rafingora by virtue of an offer letter dated 18 January, 2005 granted by the Minister of Special Affairs in charge of Lands, Land Reform and Resettlement. The 1st claimant attached a copy of the offer letter. He averred that the judgment debtor styled John Yotamu was not known to him and was also unknown at the 1st claimant’s farm. In regard to ownership of the Massey Ferguson tractor the 1st claimant averred that he was allocated the tractor by the  Reserve Bank of Zimbabwe under the Farm Mechanization programme in June, 2007. He attached copies of the transfer of asset form signed between him and the Reserve Bank of Zimbabwe. The recipient of the tractor is described as Joachim Yotamu which is the 1st claimant’s name. The 1st claimant averred further that he did not owe the judgment creditor any debt.

The 2nd claimant similarly averred that he was the owner of the YTO tractor and the Toyota Ipsum which the applicant attached at Mission Vlei Farm Raffingora where the 2nd claimant leases 40 hectares of land from the 1st claimant for farming purposes. The 2nd claimant averred that he swapped his Mazda Titan truck registration No ABH 8899 for the attached tractor which he purchased as a non-runner. He further averred that he bought the Toyota Ipsum from one Ronald Chindedza who had acquired the vehicle from Hillside Motors (Pvt) Ltd. The 2nd claimant attached copies of the sale agreements for the tractor and the Toyota Ipsum. The tractor was purchased from Arrow Group Motors (Pvt) Ltd in Workington Harare on 25 January, 2015. The Toyota Ipsum was purchased from one Facemore Museza of Glen View, Harare on 14 March, 2014.

The judgment creditor opposed the 1st and 2nd claimants’ claim. In relation to the 1st claimant, the judgment creditor averred that the 1st claimant was one and the same person as the judgment debtor. The judgment creditor averred that the 1st claimant used the names John Yotamu and Joachim Yotamu interchangeably. The judgment creditor accused the 1st claimant of seeking to create confusion by denying that he used the names which he was now denying on a credit input loan application form prepared by the judgment creditor. The application form shows the applicant as John Joachim Yotamu of Mission Vlei Farm Raffingora measuring 289 hectares. The form lists banking accounts held by the applicant therein with Agribank and FBC banks. It shows the identity particulars of the applicant therein as I.D. No. 70 – 000076 N 71 and the date of birth as 25 September 1961.The applicant therein described as John Joachim Yotamu indicated on that form applied for various chemicals for tobacco farming, coal and fertilizer for the agricultural season 2009/2010. Additionally, that same person in the application aforesaid signed a tobacco farming contract with the judgment creditor for the same season. In consideration of being granted farming inputs, the person undertook to produce tobacco for and sell it to the judgment creditor. The agreement was annexed to the respondent’s affidavit.

In relation to the 2nd claimant’s claim, the judgment creditor averred that the 2nd claimant made bald and unsubstantiated claims of ownership to the attached property. It was further averred that the attached property having been found at the 1st claimant’s farm belonged to the 1st claimant. It was also averred that he had a lease agreement with the 1st claimant. The judgment creditor averred that the sale agreements produced by the 2nd claimant amounted to bald claims of ownership and did not constitute proof of ownership nor was payment for the Ipsum proved. The judgment creditor also averred that the second applicant did not produce the registration book of the Toyota ipsum vehicle to show that it belonged to the 2nd claimant. The same argument was made that the sale agreement for the YTO tractor did not show conclusive evidence of the swap transaction. It was contended that the 2nd claimant ought to have attached an affidavit from the party or person whom he transacted with together with registration documents for the vehicles. The judgment creditor prayed for the dismissal of the 1st and 2nd claimants’ claims with costs.

In their heads of argument, counsel agreed that possession of a movable good raises a presumption of ownership of that good. This is the correct position at law. The case of Zandaberg v van Zly (supra) which both counsel cited and has been adopted in this jurisdiction is instructive. At p 272 of the judgment, DE VILLERS CJ stated–

“possession of a movable raises a presumption of ownership and that therefore a claimant in her interpleader suit claiming the ownership on the ground that he has bought such a movable from a person whom he has allowed to retain possession of it must rebut that presumption by clear and satisfactory evidence.”

I note however that although in this application, the alleged sellers did not remain in possession of the movables after the alleged sales, the principle that possession of a movable good raises a presumption of ownership still hold good as the correct legal expose. The claimant must adduce facts which constitute proof of ownership so that if the court decides that a factual allegation in dispute needs ventilation by evidence the court may refer the dispute to trial for the disputed point or fact to be proved or disproved by viva voce evidence. If no probable facts or allegations are made, there would be no rationale basis for a reference to trial see Bruce N.O v Josiah Parks and Sono Ltd & Anor 1972 (1) SA 68. As regards onus of proof, the onus to prove that goods in the possession of the judgment debtor belong to a claimant rests on the claimant.

In casu, the first claimant sought to impugn the validity of the attachment of the Massey Ferguson tractor on the basis that he was not the same person named in the order of court as John Yotamu. The first claimant attached a copy of his national registration certificate which shows that apart from the absence of the name “John”, the rest of the details which include the date of birth and the national registration particulars are the same as on the agreements for tobacco contract farming allegedly entered into between the judgment creditor and the first claimant.  The 1st claimant did not file an answering affidavit to dispute the tobacco farming contract documents. I would have been tempted to declare that the person named therein is the same as the person captured in the arbitral award. Unfortunately for the judgment creditor, the powers of this court in cases of arbitral awards which are referred to it for registration for enforcement are limited. The High Court simply performs a clerical or administration function to register the award in the form and manner issued by the arbitrator. The High Court can only interfere with the award on limited grounds provided for by law upon application to it. It would in my view be incompetent for purposes of the interpleader to issue an order which affects the names of parties in the arbitral award. I cannot therefore competently declare that John Yotamu is the same person as John Joachim Yotamu as this would amount to altering details of the arbitral award. The judgment creditor if advised should be the one to seek a correction of the arbitral award by application for such correction to be made to the award after which the order of registration for enforcement would then be corrected. If I find as I must do that I cannot correct the arbitral award by changing the parties’ names, then I have to and hereby determine that the attachment of the Massey Ferguson tractor should be set aside.

As regards the second claimant, his affidavit of claim is shallow. As pointed out by the judgment creditor, the second claimant did not provide details of the alleged lease agreement between him and the first claimant’s farm. It was a barren allegations made with nothing to support it. It is also true that the second claimant only produced sale agreements for the tractor and Toyota ipsum. He did not speak to the possession of the goods on attachment by the applicant. The agreements of sale did not contain any feature by which one could distinguish them from any typed agreement which could be prepared by anyone. The second claimant did not produce any other evidence of the authenticity of the alleged sale transactions other than agreements only. The second claimant did not therefore prove his title on a balance of probabilities. The evidence produced by the 2nd claimant fell short of sufficient evidence on a balance of probabilities to prove the ownership to the YTO tractor and the Toyota ipsum. The first claimant as the alleged lessor of the 2nd claimant conveniently did not speak to the second claimant’s lease agreement or ownership of the tractor and Ipsum vehicle. The first claimant did not therefore relate to the alleged lease agreement between him and the second claimant’s 2nd claimant nor to the separation of his claimed tractor from the YTO tractor and Ipsum vehicle. This left the second claimant’s claim to the attached goods a bald, unclothed or unsupported claim. The second applicant therefore failed to discharge the onus to prove on a balance of probabilities that he was owner of the YTO tractor and the Toyota ipsum. His claim cannot succeed.

The application is consequently disposed of as follows:

The claim of the first claimant succeeds with no order of costs.

The Massey Ferguson tractor is released from attachment by the applicant.

The claim by the second claimant for the release of the YTO tractor and Toyota 	ipsum registration number ABX 6582 is dismissed with costs.

Dube-Banda, Nzarayapenga & Partners, applicant’s legal practitioners

Mangeyi & Partners, Claimant’s legal representatives

Muvirimi Law Chambers, Judgment Creditor’s legal representatives