The Sheriff for Zimbabwe and Juliana Sabaruta v Local Authorities Pension Fund

The judgment creditor (Local Authorities Pension Fund) obtained judgment in HC 2584/12 against Plant Haven (Pvt) Ltd and W.M. Mantozo for eviction, arrear rentals, holding over damages, interest and costs arising from breach of a lease agreement. During execution, the Sheriff attached a Jaguar motor vehicle (Registration ACR 0814) found at the residence of Juliana Sabaruta (the claimant). The claimant opposed the attachment claiming ownership of the vehicle as it was registered in her name. There was an undisputed directorship relationship between the claimant and the judgment debtor, and the judgment debtor had relocated to the claimant's residence after being evicted from the judgment creditor's premises. The claimant produced the motor vehicle registration book as proof of ownership and argued that the debt had been paid in full except for legal costs which she claimed were unreasonably high.

• Whether production of a motor vehicle registration book raises a presumption of ownership that shifts the onus to the judgment creditor
• Whether the claimant proved ownership of the attached vehicle on a balance of probabilities
• Whether supplementary heads of argument filed the day before the hearing without condonation or consent are admissible
• Whether a defence raised only in heads of argument but not in pleadings is properly before the court
• Whether the judgment debt had been fully paid

1. The claimant's claim to the vehicle placed under attachment is dismissed. 2. The Notice of Seizure and attachment dated 6 October 2015 is confirmed and the motor vehicle Jaguar Registration number ACR 0814 is declared executable. 3. The claimant to pay the judgment creditor and the applicant's costs of suit.

1. A motor vehicle registration book is not proof of ownership and does not raise a presumption of ownership that shifts the onus to the judgment creditor. 2. In interpleader proceedings, the onus of proving ownership of attached property rests squarely on the claimant. 3. The claimant must set out facts and allegations which constitute proof of ownership, including evidence of when, where and how the property was acquired. 4. Supplementary heads of argument filed without condonation or consent of the other party are a nullity and must be expunged. 5. Defences or claims not raised in affidavits but only in heads of argument are not properly before the court and are a nullity. 6. Where any portion of a judgment debt remains unpaid (including legal costs and collection commission), the judgment creditor is entitled to proceed with execution.

The court observed that legal practitioners ought to know and follow proper procedures to ensure rectification of any errors they may have committed. The court also noted that inferences of ownership cannot be drawn merely from the fact that a claimant paid money to have a vehicle released or that the judgment debtor relocated to the claimant's residence - the opposite could equally be true, that the claimant as part of the directorship felt responsible to make payment on behalf of the judgment debtor. The court commented that the claimant and judgment debtor appeared to have overlooked that the costs were on an attorney/client scale plus collection commission when contesting them as exorbitant.

This case reinforces important procedural and substantive principles in Zimbabwean law regarding interpleader proceedings and execution. It clarifies that a motor vehicle registration book does not constitute proof of ownership and cannot raise a presumption shifting the onus to the execution creditor. It emphasizes strict adherence to procedural rules, particularly that supplementary heads of argument cannot be filed without proper condonation or consent, and that new defences cannot be raised in heads of argument that were not pleaded in affidavits. The case underscores that in interpleader proceedings, the claimant bears the onus of proving ownership on a balance of probabilities with actual evidence of acquisition, not mere assertions.