The Sheriff of Zimbabwe v Peter Simon & 4 Ors

### Preamble
1
HH 548-18
HC 9888/17
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THE SHERIFF OF ZIMBABWE

versus

PETER SIMON

and

MARIO RAUL DE SOUZA

and

WIMPLOG ENTERPRISES (PVT) LTD

and

HANG UP (PVT) LTD

and

SOYA WASHOUT & 19 OTHERS

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 16 July and 19 September 2018

Opposed Application

F Mapango, for applicant

D Sanhanga, for claimants

Ms P Kashiri Chiyangwa, for judgment Creditor

TAGU J: This is an interpleader application. The facts are that on 5 May 2017 twenty Judgment Creditors obtained judgment against a company called OTTLAC INVESTMENTS (PVT) LTD for a sum of US$37 500.00 together with interest at the rate of 5% per annum from the 6th of August 2014 to date of payment in full. Ottlac Investments (Pvt) Ltd was further ordered to pay costs of suit. Pursuant to obtaining the abovementioned order the Judgment Creditors instructed the Sheriff of Zimbabwe to attach and take into execution the Judgment Debtor’s movable property. During the course and scope of his duties the Sheriff of Zimbabwe attached various properties in execution of the writ in Case No. HC 1449/15.

The claimants now claim that the attached property belonged to them. The first claimant PETER SIMON is now claiming a Mortise Machine, Press Drills, Lathe machine, Austro P1200 Spindle Machine, Overhead router, Austro P3000 Dimension Saw, Table Saw, Bandsaw, Austro Thicknesser machine, Surface Plane machine, Sanding belt machine and a Combination plane machine as his property.

The second claimant Mario Raul De Souza is claiming a Nissan Elgrand motor vehicle registration number ADD 0941 as his personal property.

The third claimant Wimplog Enterprises (Pvt) Ltd is claiming the following property as his. 2x Metal cutting machines, Bandsaw, 3x Welding machines, Laithe machine, press drill, 5000 litre water tank, 3-piece wooden desk, 2x office desks, 2x filing cabinets, HP Office jet printer, 7x office chairs, 21x unfinished chairs, Honda 5.5kva generator, 20 litre compressor, Harrison sewing machine, Barley twist machine, Button moulder machine, Steel credenza, 3x sets of wooden shelves, wooden office cupboard and 2x 72 metal stationery cupboards.

The forth claimant is claiming a Nissan Pickup truck registration number ACO 1048 as his.

The first claimant PETER SIMON submitted that the property he is claiming was acquired by him more than 10 years ago and the person from whom it was originally acquired has since left the country and cannot tender the required proof. Consequently proof of ownership is not at hand as it has either since been lost and or destroyed in that time. He further stated that he had hired out all the property to WIMPLOG ENTERPRISES (PVT LTD where it was mistakenly attached as belonging to the judgment debtor.

The second claimant MARIO RAUL DE SOUZA submitted that the motor vehicle he is claiming was attached at an address that the judgment debtor’s business does not operate from. He attached a copy of the registration book as proof that the vehicle belonged to him and not the judgment debtor.

The third claimant WIMPLOG ENTERPRISES (PVT) LTD also submitted that the property it is claiming was attached at an address where the judgment debtor does not operate from. It said it acquired the said property from PENTANE ENTERPRISES (PVT) LTD and that it forms part of its asset register.

The last claimant HANG UP (PVT) LTD also alleged that its motor vehicle was attached at an address the judgment debtor does not operate from. It too attached a registration book as proof of ownership.

The claimants in their heads of argument submitted that two issues are to be determined in this case. The first issue being whether or not the property attached by the applicant is owned by the claimants. The second issue being the consequence of attaching at the wrong premises.

The claimants relied on a number of case authorities notably Phillips NO v National Foods Ltd & Anor (citation not given) where they said it was held that:

“ordinarily, the onus to prove ownership of movable property rests on the Claimant, but this is only so if the attached goods were in the judgment Debtors possession at the time of the attachment.”

They further relied on the case of Greenfield NO v Blignauat & Ors 1953 SR 73, where it was held that in a Sheriff interpleader, the Claimant is as a general rule made the plaintiff and the burden of proof rests upon him where the goods seized were at the time of seizure in the possession of the judgment Debtor, possession being prima facie evidence of title. They therefore submitted that the property was not attached in the possession of the judgment Debtor.

The judgment Creditor maintained that the property was attached at the judgment debtor’s business premises. It further submitted, and it was not disputed by the claimants that the property that the Claimants are claiming was once attached by the Sheriff on 3rd December 2015 and none of the Claimants in this matter laid claim to the property in 2015. In fact the judgment Debtor then pleaded with the judgment Creditors to suspend execution of the same property and the parties entered into a deed of settlement. The judgment Creditor argued that if the property in question belonged to the Claimants they must have acted in 2015. According to judgment Creditor a registration book alone is not proof of ownership.

In casu my reading of the papers filed of record shows that in 2007 Jericho Mudavanhu, second and third judgment creditors were employed by a company called PERSONAL TOUCH FURNITURE MANUFACTURING (PVT) LTD. In the same year PERSONAL TOUCH MANUFACTURING (PVT) LTD and a company called DELCADO INVESTMENTS were bought by Mr JURGEN WICKE ( a director of forth claimant Hang Up (Pvt) Ltd). The second claimant was the owner of DELCADO INVESTMENTS. A new company called OTTLAC INVESTMENTS (PVT) LTD was then formed which is the judgment Debtor in this case. In 2012 JURGEN WICKE roped in PETER SIMON the first claimant in OTTLACK INVESTMENTS (PVT) LTD to form PENTANE INVESTMENTS (PVT) LTD and all employees were transferred to PENTANE INVESTMENTS. Mr JURGEN WICKE was the Director of all companies that are now claiming ownership of the attached property. In 2017 all the judgment creditors were dismissed from PENTANE INVESTMENTS (PVT) LTD. Apparently, the same property attached in 2015 is the same property over which these interpleader proceedings have been instituted. In my view same property attached in 2015 cannot suddenly become property of the claimants in 2017 when in 2015 the judgment debtor OTTLAC INVESTMENTS (PVT) LTD claimed ownership of the same property and entered into a deed of settlement to save the same property from execution.

The only conclusion to be drawn from the above scenario is that there is collusion between the claimants and the judgment debtor. I agree with the judgment creditor that a mere registration book in respect of the motor vehicles is not proof of ownership. None of the claimants managed to prove that the property belonged to them. The claimants’ claim to the attached properties is therefore dismissed.

IT IS ORDERED THAT:

The 1st Claimant’s claim to the property placed under attachment in execution of judgment in HC 1449/15, namely, a Mortise Machine, Press Drills, Lathe machine, Austro P1200 Spindle Machine, Overhead router, Austro P3000 Dimension Saw, Table Saw, Bandsaw, Austro Thicknesser machine, Surface Plane machine, Sanding belt machine and a Combination plane machine is hereby dismissed.

The property mentioned in paragraph 1 above is hereby declared executable.

The 2nd Claimant’s claim to the property placed under attachment in execution of judgment in HC 1449/15, namely a Nissan Elgrand motor vehicle registration number ADD 0941 is hereby dismissed.

The Elgrand Nissan motor vehicle registration number ADD 0941 mentioned in paragraph 3 is hereby declared executable.

3rd Claimant’s claim to the property placed under attachment in execution of judgment in HC 1449/15 namely, 2 x Metal cutting machines, Bandsaw, 3x Welding machines, Laithe machine, press drills, 5000 litre water tank, 3-piece wooden desk, 2x office desks, 2x filing cabinets, HP ffice jet printer, 7x office chairs, 21 x unfinished chairs, Honda 5.5kva generator, 20 litre compressor, Harrison sewing machine, Barley twist machine, Button moulder machine, Steel credenza, 3x sets of wooden shelves, wooden office cupboard and 2x 72 metal stationery cupboards is hereby dismissed.

The property mentioned in paragraph 5 above is hereby declared executable.

4th Claimant’s claim to the property placed under attachment in execution of judgment in HC 1449/15 namely, a Nissan Pick –up registration number ACO 1048 is hereby dismissed.

The Nissan Pick-up truck registration number ACO1048 mentioned in paragraph 7 is hereby declared executable.

Claimants be and are hereby ordered to pay judgment Creditor and Applicant‘s Costs at Attorney and client scale.

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

Devittie, Rudolf & Timba, claimants’ legal practitioners

Thondlanga & Associates, judgment creditors’ legal practitioners