The Sheriff of Zimbabwe v The Trustees for the Time Being of the Chimonyo EAC Family Trust and Tendai Mudzamiri

### Preamble
1
HH 678-25
HCH3474/25
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EX TEMPORE

THE SHERIFF OF ZIMBABWE

versus

THE TRUSTEES FOR THE TIME BEING OF THE CHIMONYO EAC FAMILY TRUST

and

TENDAI MUDZAMIRI

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 23 and 28 October 2025

Interpleader Proceedings

R Mugadza, for the applicant

N B Nyathi, for the claimant

S Mbauya, for the judgment creditor

DEME J:  The Applicant approached this court through interpleader proceedings in terms of rule 63 of the High Court Rules, 2021. The Judgment Creditor obtained judgment, on 12 November 2024, against Yarnfield Enterprise (Private) Limited (hereinafter called “the Judgment Debtor”). Upon the Judgment Creditor’s instruction, the Applicant attached the following property:

1 Yellow Fork Lift

2 John Deere Tractors

1 Yellow Compressor

2x5km Non-Runner Motorbikes

2x20001 Silver Metal Tanks

1x15001 Metal Tanks

1x Fiat Tractor Non-Runner

1x Toyota Forklift Non-Runner

1x Mechanic Trolley

1x Tractor Trailor

1x Electric Motor with Trailor

1x Impellor

The Claimant laid claim to all the attached property. It was averred that the Claimant is the owner of the property by virtue of being the lawful possessor of the farm in question where attachment occurred. The Claimant produced the permit to demonstrate title to the farm. It was further alleged that the Claimant inherited the property from the Estate Late Edzai Chimonyo.

The matter was opposed by the Judgment Creditor who raised the point in limine that the signature on the Claimant’s interpleader affidavit was questionable. This point in limine was eventually abandoned.

On the merits, the Judgment Creditor averred that the Claimant failed to prove ownership. She affirmed that the Claimant ought to have produced receipts in support of the claim. The Judgment Creditor argued that there is no evidence that the Claimant received the donation from the estate as alleged.  The Judgment Creditor further asserted that the Judgment Debtor is based at the farm conducting banana production. She further claimed that she once worked for the Judgment Debtor at the farm and facilitated the  procurement for some of the property which was attached.

The issue that exercises my mind is whether the Claimant has, on a balance of probability, managed to prove ownership.

The current law in interpleader proceedings is that the Claimant must prove ownership of the attached property on a balance of probability. The Supreme Court in Welli-Well (Pvt) Ltd v Imbayago and Another beautifully commented as follows:

“It is settled that a party claiming ownership of a property placed under judicial attachment in interpleader proceedings must produce clear and satisfactory evidence to prove such ownership. Such a party bears the onus to prove ownership on a balance of probabilities.”

In the Supreme Court case of A. Raziya Kazi v The Sheriff of Zimbabwe and Ors the court superlatively observed that:

“The 1st Appellant failed to produce receipts to show that some of the property purchased thirteen years ago was purchased by her…The property claimed by the first appellant was attached at the judgment debtor’s last known address where his wife was resident. The first appellant’s failure to prove ownership of the properties that she claimed was further compounded by the nature of the relationship between herself and the judgment debtor. Their relationship as husband and wife gave rise to the presumption of the possibility of collusion to defeat the judgment creditor’s interests in the attached property.”

In paragraph 3 of the Claimant’s interpleader affidavit, the Claimant stated that the Judgment Debtor’s address is 2 Market Street, Eastlea, Harare. In her response to this paragraph, the Judgment Creditor, in the opposing affidavit, did not deny the authenticity of this address. Thus, the Judgment Debtor’s principal place of business is in Harare and not in Mutare where attachment occurred. It is not clear why the Judgment Creditor did not choose to attach the Judgment Debtor’s property at its principal place of business in Harare.

It was not disputed that the Claimant is also based at the farm. On this basis, it is difficult for any person to distinguish the property of the Judgment Debtor and the Claimant. In her opposing affidavit, the Judgment Creditor averred that some of her property was also attached by the Applicant. This position was confirmed by Ms Mbauya through her oral submissions.  In my view, this is a clear indication that the Applicant could have attached the property of other third parties. It remains a mystery why the Judgment Creditor chose to proceed to have her property attached by the Applicant to satisfy the judgment debt in her favour. This conduct, in my view, defies common sense and logic.   In the absence of a reason justifying why the Judgment Creditor chose to go to the farm instead of going to the Judgment Debtor’s principal place of business, I am hesitant to allow the execution at the farm where there is a high risk of attaching the property of the innocent third parties, given that the Claimant is also based at the same location.

In light of the fact that it is now common cause that the Judgment Debtor’s principal place of business is in Harare, the Judgment Debtor cannot be presumed to be the owner of the property at the site of attachment as alleged by the Judgment Creditor. In the case of Muzanenhamo v Fishtown Investments (Pvt) Ltd and Ors, the Supreme Court held that a person who is in possession of the goods is presumed to be the owner of the goods concerned. According to the submission made by Mr. Nyathi, the beneficiaries of the Chimonyo EAC Family Trust are entitled to certain portions of the farm. Reference was made to Clause 9 of the Trust Deed.

This court does have wide discretion to regulate the manner in which the judgment may be executed in order to avoid injustice. Such discretion must be exercised judiciously.  Reference is made to the case of Mupini v Makoni, where the Supreme Court held that:

“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See Cohen v Cohen (1) 1979 ZLR 184(G) at 187C, Santam Ins Company Limited v Paget (2) 1981 ZLR 132(G) at 134 G–135B; Chibanda v King 1983(1) ZLR 116(H) at 119 C-H; Strime v Strime 1983 (4) SA 850(C) at 852 A.”

In my view, it is not in the interest of justice to declare the property attached executable for the aforesaid reasons. The Claimant ought to have proceeded against the principal place of business for the Judgment Debtor. In the circumstances, the alternative relief must be granted with consequential amendments on the question of costs. An order that costs must be on an ordinary scale is appropriate in the circumstances. The Judgment Creditor was fully aware that at the location of attachment, there were some properties for third parties, including herself, and chose to proceed against such property despite her knowledge. She ignored the fact that the Judgment Debtor’s principal place of business is in Harare. For this reason, the Judgment Creditor must bear costs. It is consequently ordered as follows:

A. The Claimant's claim to the property which was placed under attachment in execution of judgment in HCH 8313/23 be and is hereby granted.

The property attached in terms of the Notice of Seizure and Attachment dated 12th of November 2024 issued by the Applicant be and is hereby declared not executable.

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

Deme J:…………………….

Muvingi  Mugadza, applicant’s legal practitioners.

Kanengoni Law Chambers, claimant’s legal practitioners.

Coghlan, Welsh and Guest Legal Practitioners, judgment creditor’s legal practitioners.