Enfund Trading Company t/a Alpha Motors v Gordon Thonye t/a Thonye Land Surveyors and The Deputy Sheriff (N.O)

In March 2011, the first respondent caused the attachment of three vehicles (a Mitsubishi Pajero, a Toyota Vigo Single Cab, and a Mercedes Benz S 350) in pursuance of a judgment debt against N & S Properties (Pvt) Ltd. The vehicles were at the time being used by Mr & Mrs Masuku on behalf of the applicant. The vehicles were registered under Alpha Motors, who furnished proof of ownership and registration books to the second respondent (Deputy Sheriff). The applicant filed two interpleader affidavits and a letter advising the second respondent that the vehicles did not belong to N & S Properties. Despite this, the second respondent proceeded with the attachment and advertised the sale in execution of the Toyota Vigo in the Chronicle of 11 May 2011. The applicant then brought an urgent chamber application for a stay of execution.

• Whether the Deputy Sheriff was obliged to file interpleader summons once made aware of a third party's claim to attached property
• Whether the applicant had a right to prove its claim of ownership over the attached vehicles
• Whether execution should be stayed pending determination of the ownership dispute
• Whether the Deputy Sheriff acted properly in proceeding with the attachment despite receiving notice of the applicant's claim

The court granted a provisional order for a stay of execution on 17 and 22 May 2011, with reasons delivered on 20 October 2011.

When a Deputy Sheriff becomes aware of a third party's claim to property that has been attached in execution of a judgment debt, the Deputy Sheriff is obliged to file interpleader summons and should not proceed with the attachment or sale of the property until the ownership dispute has been properly determined. A third party claiming ownership of attached property has an inherent right to prove its claim, and this right can only be properly exercised when the Deputy Sheriff follows the correct interpleader procedure. Failure by the Deputy Sheriff to follow proper interpleader procedures constitutes grounds for granting a stay of execution.

The court made general observations about the nature and purpose of interpleader proceedings, explaining that an interpleader is where a person faced with an adverse claim to property, in which he claims no interest but is at the time in possession, seeks to compel the warring parties (plaintiff and defendant) to settle their dispute without involving him/her in that dispute. The court also emphasized that as an officer of the court, a Deputy Sheriff should act professionally and impartially in the execution of his duties.

This case is significant in Zimbabwean civil procedure law as it clarifies the duties of a Deputy Sheriff when faced with a third-party claim to attached property. It emphasizes the importance of interpleader proceedings as a mechanism to protect the rights of third parties who claim ownership of property attached in execution. The case reinforces that officers of the court (such as Deputy Sheriffs) must act professionally, impartially, and in accordance with proper procedures, and that failure to do so may result in prejudice to claimants and warrants judicial intervention through a stay of execution.