Martin Ncube v The Messenger of Court, Gwanda NO and Others

On 19 January 2018, the 1st respondent (Messenger of Court) attached and removed a Honda Fit vehicle registration number AEJ 8747 at West Nicholson shops. The applicant claimed ownership of the vehicle based on a certificate of registration, alleging the vehicle belonged to him and was in possession of one Acknowledge Moyo at the time of attachment, not the judgment debtor (4th respondent, Prosper Shoko). The applicant claimed he was in Kadoma when the attachment occurred and was informed late about it while at a funeral. The vehicle was advertised for sale in accordance with Magistrates' Court rules, and the auction was conducted on 16 February 2018. The 2nd respondent (Tom Tariro) stated in his opposing affidavit that the applicant, Prosper Shoko, and Acknowledge Moyo were all present when the Messenger of Court attached the vehicle. The applicant had previously filed interpleader proceedings in the Magistrates' Court which were unsuccessful and abandoned, though this was not disclosed in the founding affidavit.

• Whether the High Court Rules, 1971 and the Magistrates' Court Rules provide for review of sales of movable property
• Whether the application for review was competent in terms of section 27 of the High Court Act
• Whether the applicant should have exhausted domestic remedies, specifically interpleader proceedings, before approaching the High Court on review
• Whether the attachment and sale of the motor vehicle was conducted in accordance with law

The application was dismissed with costs.

The binding legal principles established are: (1) The High Court Rules, 1971 and the Magistrates' Court Rules do not provide for the review of sales of movable property, and ownership of movables passes upon delivery. (2) A litigant must exhaust available domestic remedies before approaching the High Court on review unless good reasons are shown for making an early approach. (3) Where interpleader proceedings are available under the Magistrates' Court rules for a third party claiming ownership of attached property, failure to utilize this remedy without explanation renders a subsequent review application incompetent. (4) An application for review under section 27 of the High Court Act must seek to review proceedings of a court or tribunal on grounds of absence of jurisdiction, bias, or gross irregularity - it cannot be used as an alternative remedy where specific procedural mechanisms exist.

The court observed that if the applicant was truly the owner of the vehicle, it was illogical that he would have done nothing about the attachment and removal until after the sale, despite proper advertisement and public notice. The court noted that the purpose of requiring advertisement of sales under judicial attachment is to alert interested parties in case property is erroneously attached, or to allow the owner or judgment debtor to settle the debt and prevent the sale. The court also commented critically on the applicant's failure to disclose in the founding affidavit that interpleader proceedings had been previously filed and abandoned, characterizing the review application as an attempt to seek redress "via the back door."

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the proper use of review proceedings and the limitations on the High Court's review jurisdiction; (2) the requirement to exhaust domestic remedies before approaching the High Court on review; (3) the proper procedure for third parties claiming ownership of attached property (interpleader proceedings); (4) the principle that what is not denied in affidavits is deemed to be accepted; and (5) the duty of candour in founding affidavits, requiring disclosure of prior unsuccessful proceedings. The case serves as a warning against attempting to circumvent established procedural remedies by inappropriately using review proceedings.