The Sheriff of Zimbabwe v Ganshar Quarries (Private) Limited and Hoopwestern Investments (Private) Limited

### Preamble
1
HH 652-25
HCH 3016/25
EX TEMPORE
THE SHERIFF OF ZIMBABWE
---------


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

EX TEMPORE

THE SHERIFF OF ZIMBABWE
versus
GANSHAR QUARRIES (PRIVATE) LIMITED
and
HOOPWESTERN INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE
DEME J
HARARE, 21 and 22 October 2025

Interpleader Proceedings

M. Nyathi for the Applicant.
T. Zisengwe, for the Claimant.
F. Nyamayaro, for the judgment creditor.

DEME J: The Applicant approached this court through interpleader proceedings in terms of Rule 63. The Judgment Creditor obtained judgment against Grand Steel Investments (Pvt) Ltd (hereinafter called “the Judgment Debtor”). The Judgment Creditor, pursuant to the judgment, instructed the Applicant to attach the property in order to satisfy the judgment debt. The Claimant laid claim to the following attached property:

1. Nissan Serena AGF6799
2. Fork Tail Lift
3. DAF Truck ADF3918
4. Front end loader SDLG (yellow)
5. XG S35 Forklift
6. Mercedes Benz E350 (silver) AEJ9466
7. Crusher
8. Nissan Serena AFT6595.


The Claimant claims that it operates at 537 Damba Road, Ruwa, the place where the goods were attached by the Applicant. Despite this averment, the Claimant failed to prove that it operates at this address. The documents filed suggest otherwise. The claimant alleged that it imported the plant equipment. It attached some import documents to substantiate the allegations. The Claimant further attached some agreements of sale alleging that it bought various vehicles attached by the Applicant.

The matter was opposed by the Judgment Creditor, which argued that the Claimant failed to prove that it operates at the address where the attachment of goods occurred. The Judgment also affirmed that the import documents suggest that the address for the Claimant is 156 Greendale Avenue, Harare. The Judgment Creditor further averred that one agreement of sale for the vehicle, being Mercedes Benz 350 Registration Number AEJ 9466 does have the address of 156 Greendale Avenue. The judgment Creditor further argued that the Claimant failed to match the attached property against the goods listed on the import documents. The Judgment Creditor claimed that some of the agreements in respect of the vehicles were not signed and hence such agreements are a nullity.

The Claimant raised the point in limine to the effect that the resolution authorizing Mr. Gatsi to depose to the opposing affidavit is invalid for one reason or another. Mr. Zisengwe argued that the resolution is a blanket resolution which flies against established principles of resolutions. He further submitted that the resolution dated 18 October 2021 cannot purport to authorize Mr. Gatsi for the present matter, which was only instituted in 2025. Mr. Zisengwe additionally contended that the resolution does not identify the present parties who are before the court. He further maintained that the case number is not identified in the resolution filed. He referred the court to the case of *Arosume Property Development (Private) Limited v Mashonganyika and Anor*.

Mr. Nyamayaro argued that the point in limine is unmerited as the Claimant’s counsel failed to appreciate that the present matter is ancillary to the main matter being R-HC1207/22.


The present matter, according to Mr. Nyamayaro, is an attempt to enforce the judgment in the main matter. He contended that for this reason, there was no need for the Judgment Creditor to generate a different resolution specifically authorizing Mr. Gatsi to represent the Judgment Creditor where enforcement of the judgment for the main matter is central.

It was not disputed by Mr. Zisengwe that the present matter is related to the main matter in case number R-HC1207/22. Case law establishes that one resolution can be used in related matters. Reference is made to the case of *Valentine and Anor v Blooming Investments (Private) Limited and Ors*², where the Supreme Court held that:

“(28) The need for any person representing a company to have the company’s authority to do so was dealt with by this Court in *Madzivire & Ors v Zvarivadza & Ors* 2006 (1) ZLR 514 (S) where it was held that a company, being a separate legal *persona* from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. At p 516 B-E CHEDA JA, delivering the judgment of the court said:

“It is clear from the above that a company, being a separate legal *persona* from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle, which the courts cannot ignore. It does not depend on the pleadings by either party.”

(29) In the case of *Cuthbert Elkana Dube v Premier Service Medical Aid and Another* SC 73/19, at para. 38 of the cyclostyled judgment it was held that:

“The above remarks are clear and unequivocal. A person who represents a legal entity, when challenged, must show that he is duly authorized to represent the entity. His mere claim that by virtue of the position he holds in such an entity he is duly authorized to represent the entity is not sufficient. He must produce a resolution of the board of that entity which confirms that the board is indeed aware of the proceedings and that it has given such a person the authority to act in the stead of the entity. I stress that the need to produce such authority is only necessary in those cases where the authority of the deponent is put in issue. This represents the current status of the law in this country.”

(30) Therefore, a company resolution is required for two reasons, first, to prove that the entity is aware of the legal proceedings and has authorised them and, secondly, that the person representing it has been clothed with the requisite authority to represent it in the proceedings.

(31) In *casu*, the resolution presented on behalf of the first respondent satisfied both requirements of a valid resolution. The resolution in question proves that the first respondent was aware of the legal proceedings and it authorized Tapiwa Gurupira to represent it. It is also common cause that the first appellant and Tapiwa Gurupira have been involved in various litigation relating to these mining claims and he has always represented the first respondent. I see no basis why his authority to represent the first respondent can be validly challenged at this stage. The fact that the resolution has a date after the litigation had been instituted is an obvious error. It was filed on 6 April 2022 together with the respondent’s founding affidavit and other pleadings proving that it was generated before the pleadings were filed. It is illogical to argue that it was made thereafter when it is clear that it was in existence when the respondents’ pleadings were filed on 6 April 2022.

(32) Mr Hashiti for the first respondent correctly submitted that the ownership by the first respondent of the mining claims in issue, had been subject to litigation between the same parties and the court found that Tapiwa Gurupira was the owner of 100 per cent shares of the first respondent. He contended that Tapiwa Gurupira’s authority to represent the first respondent was further established by an extant order of the court a quo in HC 119/18. The court a quo cannot therefore be faulted for holding that Tapiwa Gurupira had the requisite authority to represent the first respondent. There was a valid resolution authorising him to do so coupled with extant court orders wherein it was clear that he represented the first respondent and was its approved credited agent.”

It is apparent from the case of Valentine supra that where there is related litigation, the same resolution can be sufficient. Reference is made to paragraph 31 of the judgment. The contents of the Judgment Creditor’s resolution are as follows:

“The following resolution was passed at a meeting of the Board of Directors of Hoopwestern Investments (Pvt) Ltd t/a Affirming (hereinafter referred to as “the Company” on the 18th day of October 2021.

It was resolved that:

Mr Takawira Gatsi, I.D No. 45-046791C45, has been granted authority to represent Hoopwestern Investments (Pvt) Ltd t/a Affirming regarding the Grand Steel Investments case.”
 It is evident that the resolution was prepared before the main matter was instituted. Hence, the resolution could not bear a case number under such circumstances. In light of the fact that the resolution identifies the opposite party in the intended litigation being the Judgment Debtor, I hold the view that the resolution cannot be regarded as a blanket resolution. The resolution does not authorize the deponent to institute any litigation under the sun. The contemplated litigation is restricted to the Judgment Debtor. I am of the view that the point in limine is unmerited. The point in limine is resultantly dismissed.

On the merits, the question which immediately arises is whether the Claimant has, on a balance of probability, managed to prove ownership of the goods attached.

It has been established in our jurisdiction that any claimant who claims property through interpleader proceedings must prove ownership of such property on a balance of probability. Reference is made to the cases of *Welli-Well (Pvt) Ltd v Imbayago and Another* and *A. Raziya Kazi v The Sheriff of Zimbabwe and Ors*. Despite insisting that it operates at the Ruwa address, the Claimant tendered no evidence to substantiate the allegation. Thus, this claim remains a hollow averment. Evidence on the record suggests otherwise. The two different resolutions on pages 16 and 89 of the record do have the Greendale address. The import documents and the agreement of sale for Mercedes-Benz also list the Greendale address. The Claimant was challenged to explain this irregularity by the Judgment Creditor in the opposing affidavit. Reference is made to paragraph 8 of the Judgment Creditor’s opposing affidavit. In the answering affidavit, though irregularly filed as there is no provision for this, the Claimant did not respond to this issue. Reference is made to paragraph 5 of the answering affidavit. What is not denied is deemed to have been admitted. Reference is made to the case of *Fawcett Security Operations v Director Customs and Excise*. On this basis, I am unable to detect any footing for the claim. In the absence of proof that the Claimant operates at the Ruwa address, the claim becomes baseless.


The Judgment Debtor is therefore presumed to be the owner of the goods as the goods were in possession of the Judgment Debtor at the time of attachment. The presumption of ownership arising from possession was established over a century ago in the celebrated case of Zandberg v van Zyl\(^6\), where the court held that:

“… possession of a movable raises a presumption of ownership ….”

The case of Zandberg v Van Zyl was quoted with approval by the Supreme Court in the case of Muzanenhamo v Fishtown Investments (Pvt) Ltd and Ors\(^7\). The claimant failed to prove that the property was in its possession at the material time. Under such circumstances, the claimant failed to rebut the presumption. In the circumstances, the claim must be dismissed.

The Claimant, being the loser, must bear costs on an ordinary scale. Such costs are reasonably sufficient, in my view. Costs on the attorney and client scale can only be granted in exceptional circumstances. I have not been favoured with such circumstances by the Judgment Creditor and the Applicant. Consequently, it is ordered as follows:

A. The claimant’s claim to all the property which appears on the Notice of Seizure and Attachment dated 21\(^st\) of May 2025 which was placed under attachment in execution of the order in R-HCH1207/22 be and is hereby dismissed.

B. The abovementioned property attached in terms of the Notice of Seizure and Attachment dated 21\(^st\) May 2025 issued by the applicant be and is hereby declared executable.

C. To the extent applicable, the claimant is to pay in full the storage costs incurred by the applicant from the date of the removal of the goods to the date of their release from storage.

D. The claimant shall pay the judgment creditor’s and the applicant’s costs.

**DEME J:………………………………**

Kantor & Immerman Legal Practitioners, applicant’s legal practitioners
T.I Ndhlovu and Partners Legal Practitioners, claimant’s legal practitioners
Farai Nyamayaro Law Chambers, judgment creditor’s legal practitioners

\(^6\) 1910 AD 258 at 272

\(^7\) SC8/17.


HH 652-25
HCH 3016/25
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