The Sheriff of Zimbabwe v Showcase IT (Private) Limited and Caroline Kaunda

### Preamble
1
HH 674-25
HCH 3352/25
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THE SHERIFF OF ZIMBABWE

versus

SHOWCASE IT (PRIVATE) LIMITED

and

CAROLINE KAUNDA

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 16 October 2025 & 28 October 2025

Opposed matter

VR Muzamb,i for the applicant

A Moyo, for the claimant

A Kutadzaushe, for the judgment creditor

DEME J: On 16 October 2025, I granted the claimant’s claim in this matter. More particularly, the order I made was as follows:

The point in limine of material non-disclosure raised by the Judgment Creditor be and is hereby dismissed.

The Claimant's claim to the property listed in Notice of Seizure dated 27 June 2025 which was placed under attachment in execution of the order in case number HC2194/21 be and is hereby granted.

The above-mentioned property attached by the Applicant be and is hereby declared not executable.

The Judgment Creditor shall pay the Claimant's and Applicant's costs.

I will now proceed to give reasons for the order made. The brief background of the matter is that the judgment creditor obtained a judgment for costs in case number HCH2194/21 against Joseph Msika. Pursuant to the judgment, the judgment creditor instructed the applicant to attach certain movable property in service of the judgment debt. It is this property that the claimant has laid claim to.

On the day of the hearing, the claimant’s counsel made an application to file a supplementary affidavit, to which the judgment creditor was opposed. The claimant’s counsel averred that the judgment creditor had been made aware that the claimant would make this application as far back as July 2025, and it is only on the day of the hearing that the opposition was noted. The judgment creditor’s counsel relied on rule 63(16), which he interpreted to mean that after the filing of heads, the pleadings are closed and the parties cannot file any further documents. I queried the judgment creditor’s counsel on the meaning of the provisions of rules 63(1) and 59(12). Rule 59(12)  provides that:

“(12) After an answering affidavit has been filed, no further affidavits may be filed without the leave of the court or a judge.”

The judgment creditor’s counsel conceded, and the opposition was accordingly withdrawn. The claimant’s application for the filing of a supplementary affidavit was therefore granted.

In making his submissions, Mr. Moyo, stated that a core legal principle established in our jurisprudence is that possession creates a presumption of ownership. He submitted that where the property is found in the possession of the claimant, the onus is on the judgment creditor to prove that the judgment debtor owns it. In casu, the claimant was in the possession of the attached property when the applicant effected the attachment. The claimant relied on the case of The Sheriff of Zimbabwe v Virginia Sibanda & Anor HH275-18 wherein the court, on page 2, had the following to say:

“In this case the property was recovered from the claimant’s place of abode. As the claimant is clearly the owner of number 146 Twickenham Drive, Northwood, Mount Pleasant, Harare from which the movable property was recovered. Where the property that has been attached is in the possession of the claimant at the time of attachment the onus shifts and the judgment creditor has the onus to prove that the property does not belong to the claimant. See Greenfield N.O v Blignaut and Ors 1953 (3) SA 597. The court stated as follows:

‘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.’

If however, the claimant was in possession at the time of seizure the burden of proof is upon the execution creditor, thus reversing the ordinary rule, and the execution creditor may be made the plaintiff.”

It is not disputed that attachment occurred at the claimant’s business premises and not those of the judgment debtor. Reference is made to p 56, para 31 of the record, where the judgment creditor admits that the property was in the possession of the claimant.

As part of its proof of ownership, the claimant attached a lease agreement that shows that the claimant has been leasing the premises since 2022. The claimant avers that the judgment debtor is one of its former directors who had resigned by the time attachment occurred. It was also submitted that the vehicle registration books for the attached vehicles do not bear the judgment debtor’s name. Mr Moyo submitted that it is the duty of the judgment creditor to rebut the presumption and prove that the judgment debtor owns the attached property.

Counsel further submitted that the judgment creditor alleges that there is collusion and has asked that the court pierce the corporate veil because the judgment debtor is both a director and a shareholder of the claimant. It was submitted that the judgment debtor’s resignation letter was filed of record. It was the claimant’s case that the judgment creditor had not made out a case for the piercing of the corporate veil. It was submitted that proof could have been in the form of a CR6 form or a share certificate. The claimant further submitted that the judgment creditor avers that collusion arises because the judgment debtor and one of the claimant’s directors, Makomborero Mbanje, are spouses. Mr Moyo relied on the case of The Sheriff of the High Court v Majoni & Ors HH689-15, wherein the court stated that stereotypes should be avoided. He submitted that the wife has no link to the judgment debtor’s debt which he incurred in his own personal capacity. He further submitted that the mere mention of a marriage cannot amount to collusion.

Mr Moyo submitted that the judgment creditor in her papers admits that on the day of attachment she re-directed the applicant to the claimant’s address. It was submitted that this was irregular as the applicant should have gone to the judgment debtor’s address that was provided. The claimant therefore asked for costs on a legal practitioner and client scale, stating that the claimant had incurred costs unnecessarily.

In reply, Mr Kutadzaushe,  raised a point in limine to the effect that there was material non-disclosure because the claimant fraudulently failed to disclose to the court the relationship between the deponent to the claimant interpleader affidavit and the judgment debtor. It was submitted that because they are spouses, collusion can clearly be inferred and the claim should therefore be dismissed. Counsel further submitted that the claimant has failed to prove ownership of the attached property.

It is the judgment creditor’s case that the judgment debtor was also in possession of the attached property by virtue of being one of the claimant’s directors. The resignation letter tendered is disputed by the judgment creditor who submitted that it was merely drawn up by the judgment debtor in a bid to defeat the judgment creditor’s claim. Counsel further submitted that the resignation letter was not attached to the claimant’s opposing affidavit as it was averred that at the time of filing it could not be located. The letter was subsequently attached to the supplementary affidavit. Counsel submitted that because of this it was the duty of the claimant to provide proof of ownership. It was submitted that the vehicle registration books before the court do not bear the name of the claimant. Mr. Kutadzaushe submitted that the lease agreement filed of record is fabricated. He asserted that the failure to disclose the relationship between the judgment debtor and claimant itself and also that of the judgment debtor and one of its claimant’s directors is telling of a lack of transparency and honesty. He submitted that this warrants a piercing of the corporate veil as the claimant is being used as the judgment debtor’s alter ego. Counsel argued that the judgment creditor has demonstrated that there is a close relationship between the judgment debtor and the claimant on the two abovementioned prongs. Counsel therefore prayed that the claimant’s claim be dismissed.

I queried the judgment creditor’s counsel on the allegation that the judgment creditor redirected the applicant to the claimant’s address on the date of attachment to which he replied that the applicant was indeed redirected to the place of attachment. He submitted that the judgment creditor was willing to execute against the judgment debtor wherever they are. When queried about whether a litigant should start by enforcing against a company Mr. Kutadzaushe submitted that this is why they are insisting on the piercing of the corporate veil as they believe that the claimant is merely being used by the judgment debtor as a tool to evade fulfilling the judgment creditor’s debt.

Mr. Moyo submitted that the judgment creditor’s counsel submitted from the bar that the judgment debtor has possession as this was not previously pleaded in her papers. He maintained that the claimant is a distinct entity from its members and that there was no basis for citing the members’ relationship. He further submitted that the lease agreement is not defective, it was signed by the claimant’s directors. Counsel asserted that, as per the evidence attached, the judgment debtor resigned and attachment happened after the resignation. It was submitted that the judgment creditor’s case relies on assumptions and allegations without furnishing any proof to substantiate them.

I considered whether there was material non-disclosure on the claimant’s part. It is argued that the litigant before the court is the company and not the directors of the company. It was disclosed that the judgment debtor was the claimant’s former director. The point in limine is therefore without merit and was therefore dismissed.

It is common cause that the property was attached at the claimant’s address even though the address on the writ of execution was that of the judgment debtor’s premises. It is also common cause that the judgment debtor was once one of the claimant’s directors, it is however disputed that he resigned. It is further common cause that the claimant and the judgment debtor are two distinct entities at law.

The question that exercised my mind was whether or not the claimant had managed to prove ownership. The presumption of ownership arising from possession is an established principle in our jurisprudence. In the case of Zandberg v van Zyl 1910 AD 258, the court held that:

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

If the claimant was in possession then the judgment creditor must rebut the presumption that the claimant owns the property. The onus rests on the judgment creditor to rebut this presumption, on a balance of probabilities. The judgment creditor in casu has alleged that the judgment debtor’s resignation letter is not genuine, however no proof has been furnished to this effect. The assertion that the judgment debtor is connected to the claimant remains unsubstantiated as no evidence has been adduced.

The judgment creditor motivated the court to pierce the corporate veil as she alleged that there is collusion. In the case of Tindwa v The Sheriff of Zimbabwe & Anor SC94-22 the court held as follows:

“[10] The concept of separate legal personality of a company is the cornerstone of company law. The cardinal principle of company law, as enunciated in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) and Dadoo Ltd & Others v Krugersdorp Municipal Council 1920 AD 530 at 550, is that a company is a separate entity that is distinct from its members. The concept of corporate personality is that a company, once it is registered, acquires a personality of its own quite distinct from its members or shareholders. See Welli-Well (Pvt) Ltd v Malvern Imbayago & Anor SC 8/21 at p 6.

[11] Because a company is separate from its members, the courts will not readily disregard such corporate legal personality and lift the corporate veil so as to attach liability to individuals who are related to the company.”

Given this, the piercing of the corporate veil should only be done when it is necessary to do so. The judgment creditor alleged that the claimant is the judgment debtor’s alter ego, but no proof of this has been furnished. Fraud and dishonesty have not been proven; therefore, I am unable to establish the essential requirements for the piercing of the corporate veil.

It has not been proven what really happened at the judgment debtor’s address of service on the date of attachment, where the applicant initially went, if ever the Applicant visited such premises. In the circumstances, I was of the view that the judgment creditor had not proven her case. She failed to discharge her onus given that the Claimant is presumed to be the owner of goods found in its possession at the material time. I was, therefore, motivated by these reasons to make an order in the manner I did.

Deme J :………………………………………….

V Nyemba & Associates, applicant’s legal practitioners

Gambe Law Group, claimant’s legal practitioners

Mangwana & Partners, judgment creditor’s legal practitioners