The Sheriff for Zimbabwe and The Trustees for the Time Being Profebby Trust Foundation v Hazvibviri Njokoya and Rosewita Njokoya

The judgment creditor obtained default judgment against Felix Munyaradzi on 31 March 2021 under HC 4570/19. The Sheriff was instructed to attach Felix's movable goods. On 27 September 2021, goods (mainly furniture) were attached. Felix's wife, Precious Tsitsi Chawayipira, filed an interpleader claim alleging the goods belonged to her personally (not Felix). Her claim was dismissed as her documentary evidence was in Mandarin/Chinese and could not be understood. She appealed this decision (SC 133/22, pending). On 4 April 2022, a second attachment of movable goods occurred. This time, Tsitsi, on behalf of Profebby Trust Foundation (a trust formed by Felix and her on 26 May 2017), claimed the attached goods belonged to the trust, not Felix. Felix and Tsitsi are both trustees and beneficiaries along with their four children. The trust relied on annexures showing transfer of immovable property to the trust on 27 July 2017, but produced no evidence that movable goods had been transferred to the trust.

• Whether the claimant (Profebby Trust Foundation) proved ownership of the attached movable goods on a balance of probabilities
• Whether movable goods were ever transferred to the trust
• The legal requirements for proving ownership in interpleader proceedings
• The consequences of a litigant's failure to disclose material information and dishonesty to the court

The claimant's claim was dismissed with costs.

In interpleader proceedings, the claimant bears the onus of proving ownership (not mere possession) of attached goods on a balance of probabilities. This requires the claimant to set out facts and evidence constituting proof of ownership. Where a trust claims ownership of movable goods, it must prove that those goods were actually transferred to the trust - the mere existence of a trust and transfer of immovable property to it is insufficient to establish ownership of movable goods not shown to have been transferred. Courts will not reward dishonesty or lack of probity - where a litigant deliberately withholds vital information adverse to their case or misleads the court, their claim will be dismissed and adverse inferences drawn. A court is entitled to refer to its own records and proceedings and take judicial notice of their contents when determining related matters involving the same parties.

The court made strong observations about litigants who refuse to accept defeat and will "fight with anything they have got, even when they are left with nothing" and "would rather crawl to the war front panting, perspiring and fatally wounded" (quoting Mauladi v Batchelor HH 256/15). The court emphasized that standards of faithfulness and honesty are fundamental to court procedures "in this country and in all civilized countries" and that courts would be "washing [their] hands of [their] responsibility" if they failed to enforce such standards (citing Underbay v Underbay 1977 (4) SA 23 (W)). The court noted that courts "look with more sympathy on litigants who place them into their confidence than on those who choose to lie or mislead them by withholding information which is vital to the determination of their case(s)." The court also observed the principle that if a litigant gives false evidence, their story will be discarded and the same adverse inferences drawn as if no evidence had been given at all.

This case reinforces important principles in Zimbabwean law regarding: (1) the burden of proof in interpleader proceedings - claimants must prove ownership, not mere possession, on a balance of probabilities; (2) the court's entitlement to refer to its own records and take judicial notice of previous proceedings involving the same parties and subject matter (following Mhungu v Mtindi 1986 (2) ZLR 171 (SC)); (3) the severe consequences for litigants who engage in dishonest conduct or fail to make full disclosure of material facts to the court; (4) that trusts cannot be used as shields to frustrate legitimate creditors where assets have not actually been transferred to the trust; and (5) the requirement for clear documentary evidence proving transfer of property to a trust. The case demonstrates the court's willingness to look behind formalistic claims and examine the substance of transactions, particularly where there are inconsistent positions taken in successive proceedings.