The Sheriff of Zimbabwe v Carlos Douglas George and Origen Corporation (Pvt) Ltd t/a Staywell Trading

### Preamble
1
HH 631-25
HCH 3043/25
EX TEMPORE
THE SHERIFF OF ZIMBABWE
---------


==============================

EX TEMPORE

THE SHERIFF OF ZIMBABWE
versus
CARLOS DOUGLAS GEORGE
and
ORIGEN CORPORATION (PVT) LTD T/A STAYWELL TRADING

HIGH COURT OF ZIMBABWE
DEME J
HARARE, 14 and 16 October 2025

Interpleader Proceedings

E Jojo, for the applicant
G Chifamba, for the claimant
S Chigumira, for the judgment creditor

DEME J: The Applicant approached this court seeking this court’s determination for competing claims between the Claimant and the Judgment Creditor. The Judgment Creditor obtained judgment against Tinotenda Zinyemba and Flavian Zinyemba (hereinafter called “the Judgment Debtors”) in case number HCHC588/24. The Judgment Creditor subsequently instructed the Applicant to attach the property. The Applicant attached the following property:

1 x DAF Truck LF Registration Number ACB 6972;

- 1 x Nissan King Cab Registration Number ACU 4920;

- green lawnmower;

- Defy Upright Fridge;

- Defy Microwave;

- Bosch gas stove 4 plate;

- LG washing machine;


• KIC Upright Fridge;
• Defy Deep Freezer;
• 3-piece black sofas;
• grey couch;
• Earth Generator;
• Samsung TV 32 inch;
• ALVA gas heater.

The Claimant claimed all the attached property in the interpleader affidavit. However, in the opposing affidavit, the Claimant averred that the Daf truck LF Registration number ACB 6972 (hereinafter called “Daf truck”) and Nissan King Cab Registration number ACU 4920 (hereinafter called “Nissan”) belong to third parties. According to the Claimant, the Daf truck belongs to Makoloyi (Pvt) Ltd while the Nissan belongs to Cyrus Sebastian Manuel, the Claimant’s brother-in-law. The Judgment Creditor, on a without prejudice basis, consented to the release of the household goods. The Judgment Creditor insisted that the Claimant failed to prove ownership of the two vehicles and hence the claim must be dismissed with costs on an attorney and client scale.

On the day of hearing, the Claimant’s counsel, Mr. *Chifamba*, made an oral application for joinder of third parties, namely Makoloyi (Pvt) Ltd and Cyrus Sebastian Manuel. The application was opposed by the counsel for the Judgment Creditor, Mr. *Chigumira*. He argued that the third parties cannot be joined to the present proceedings after *litis contestatio*, that is to say, after the closure of pleadings. This was disputed by Mr. *Chifamba*, who submitted that an application for joinder can be done at any stage. Reference was made to Rule 32(12) which provides as follows:

“(12) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either on its own initiative or on application—

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;


(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party:

Provided that no person shall be added as a plaintiff without his or her signed written consent or in such other manner as may be authorised.”

I do agree with Mr. *Chifamba*’s submissions that an application for joinder can be made at any stage during the proceedings. The issue of whether the pleadings have been closed is of no consequence.

Mr. *Chigumira* further submitted that there is no evidence that the third parties are interested in the present proceedings. Mr. *Chifamba* claimed that it is evident that Makoloyi (Pvt) Ltd and Cyrus Sebastian Manuel are interested by virtue of their vehicles which were attached by the Applicant.

It is apparent that the Proviso to Rule 32(12) requires the consent of the Plaintiff for the Plaintiff to be joined to the proceedings. The Proviso is as follows:

“Provided that no person shall be added as a plaintiff without his or her signed written consent or in such other manner as may be authorised.”

Interpleader proceedings are unique in nature. Since the Applicant has no direct interest in the matter save for costs, the Claimant must be construed to be the Plaintiff. On this basis, it will be against the Rules of this court for me to grant application for joinder without the written consent of the third parties. For this reason, oral application is hereby struck from the roll as it is not compliant with the Rules.

Mr. *Chigumira* submitted that the vehicles must be declared executable since the Claimant has failed to tender proof of ownership of the vehicles. However, he was not able to demonstrate any connection between the vehicles and the Judgment Debtors. He simply submitted that the vehicles were attached at the place of Judgment Debtors’ residence and hence the presumption of ownership arising from possession of goods ought to be employed.

It was not strongly disputed that the Claimant has a running lease with the first Judgment Debtor, namely Tinotenda Zinyemba. In para 3 of the opposing affidavit, the Judgment Creditor admitted that the Judgment Debtors removed themselves from the address where attachment took place. It was not strongly resisted that the Claimant is the shareholder of Makoloyi (Pvt) Ltd. It is common cause that the Daf truck is registered in the name of Makoloyi (Pvt) Ltd. It was not vehemently resisted that the Claimant’s wife, whose name is captured in the notice of seizure, was present at the time of attachment of the goods. In light of these admissions, I am unable to presume that the goods attached belong to the Judgment Debtors in the absence of further evidence. For this reason, I am of the view that it is not prudent to declare the vehicles executable before the third parties are heard by the court.

Given that the Claimant has admitted that the vehicles belong to third parties, the appropriate order in respect of the vehicles is to strike the claim from the roll. This will allow the alleged Claimants to approach the court for a remedy. I disagree with Mr. Chigumira’s submission that the claim must be dismissed. A dismissal can only be appropriate where the court has examined the merits of the claim. A dismissal will shut the door of access to justice to the alleged claimants. My view is fortified by the decision of the Supreme Court in the case of Stanley Nhari v Robert Gabriel Mugabe and Others\(^1\), where, in paragraph 45, the Supreme Court opined as follows:

“[45] I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper. The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss. In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC 71/14 this Court remarked as follows:-
“It is a contradiction in terms to dismiss a matter on the twin bases that it not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination. The effect of the dismissal on the latter basis is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.” (at pp 8 – 9 of the judgment)”

In casu, the Claimant lacks locus standi to claim the vehicles, given the admission that he is not the owner of the attached vehicles. Thus, the court cannot deal with the merits of the claim of the two vehicles where there is an allegation that the Claimant has no locus standi. Hence, the decision to strike the claim for the two vehicles from the roll is appropriate in the circumstances.

\(^1\) SC151/20.


The Claimant may be entitled to the release of the household goods, which was not opposed by the Judgment Creditor.

On the question of costs, I am of the view that the Claimant must bear costs of suit for the Applicant and the Judgment Creditor on an ordinary scale. Costs on an attorney and client scale claimed by the Judgment Creditor and Applicant can only be granted in exceptional circumstances. Such exceptional circumstances were not placed before my attention. The Claimant was warned of this defect through the Judgment Creditor’s Heads of Argument and chose to ignore this warning. For this reason, the Claimant must face the consequences. In the circumstances, it is ordered as follows:

A. The Claimant’s claim to the property described in the notice of seizure dated 12 June 2025, with the exception of Daf truck LF Registration number ACB 6972 and Nissan King Cab Registration number ACU 4920, be and is hereby granted.

B. The property described in the notice of seizure dated 12 June 2025, with the exception of Daf truck LF Registration number ACB 6972 and Nissan King Cab Registration number ACU 4920, be and is hereby declared not executable.

C. The Claimant’s claim to Daf truck LF Registration number ACB 6972 and Nissan King Cab Registration number ACU 4920 be and is hereby struck from the roll on the basis that the Claimant lacks locus standi to claim such vehicles.

D. To the extent applicable, the Claimant shall pay storage and attachment costs.

E. The Claimant shall pay Applicant’s and Judgment Creditor’s costs on an ordinary scale.

**DEME J:………………………………………………**

*Dube-Banda, Nzarayapenga & Partners, Applicant’s Legal Practitioners.*

*Whatman & Stewart, Claimant’s Legal Practitioners.*

*Gollop & Blank, Judgment Creditor’s Legal Practitioners.*
--- END OCR FALLBACK ---