The Sheriff of the High Court and Others v Bitcon (Pvt) Limited t/a Kuchi Construction

The Sheriff attached property at Number 7 Case Road, Bluffhill, Harare in execution of a writ in HC 814/15. Glanneg Investors (Private) Limited (the claimant) made a claim to the attached property, asserting it had purchased the property from Bitumen Construction Services (Pvt) Ltd, a sister company of the judgment debtor (Bitcon (Pvt) Ltd t/a Kuchi Construction). The claimant alleged that the property remained with the seller pursuant to a lease agreement. The Sheriff instituted interpleader proceedings. Both the judgment creditor and the claimant filed notices of opposition. The judgment creditor filed heads of argument on 24 June 2015. Subsequently, the claimant filed an answering affidavit to the judgment creditor's notice of opposition on 8 July 2015. The property had been attached from premises where the judgment debtor operated (No. 7 Fraser Road), while the agreement of sale reflected the address of Bitumen as No. 9 Fraser Road.

• Whether the claimant could file an answering affidavit to the judgment creditor's notice of opposition in interpleader proceedings
• Whether an answering affidavit filed after heads of argument have been filed should be expunged
• Whether the claimant proved ownership of the attached property sufficient to overcome the presumption that property in the possession of the judgment debtor belongs to the judgment debtor
• Whether there was evidence of collusion between the claimant, judgment debtor, and Bitumen Construction Services

1) The claimant's claim to the property set out in the Notice of seizure and attachment dated 28 April 2015 in execution of judgment HC 814/15 was dismissed. 2) The property was declared executable. 3) The claimant and the judgment debtor were ordered to pay the costs of the applicant (Sheriff) and the judgment creditor.

In interpleader proceedings, there is no provision in the rules allowing a claimant (respondent) to file an answering affidavit in response to a judgment creditor's (also a respondent) notice of opposition. Rule 234 restricts the filing of answering affidavits to applicants only. In interpleader proceedings, both the claimant and judgment creditor may only file notices of opposition unless they obtain leave under Rule 235 to file further affidavits. An answering affidavit filed after heads of argument have been filed, without explanation and without leave of the court, is irregular and must be expunged. The onus of proving ownership of goods attached from the possession of the judgment debtor rests on the claimant.

The court observed that interpleader proceedings are supposed to be simple and dealt with expeditiously, as claims stand in the way of a party who has obtained judgment, and there are practical considerations such as accumulation of storage costs. The court noted that if claimants comply with Rule 207(b) by delivering proper particulars of their claims, there should be no need to file further affidavits. The court commented that the confusion and contradictions in the claimant's papers, combined with the discrepancy in addresses and timing of the sale, suggested possible collusion between the claimant, judgment debtor, and the seller to defeat the judgment creditor's execution rights.

This case clarifies the procedural rules applicable to interpleader proceedings in Zimbabwe, particularly regarding the filing of affidavits. It emphasizes that interpleader proceedings are designed to be simple and dealt with expeditiously, with restricted opportunities for filing affidavits beyond the initial notice of opposition. The case reinforces the principle that a claimant bears the onus of proving ownership of goods attached from the possession of a judgment debtor, and that courts will scrutinize claims for evidence of collusion designed to defeat execution of lawful judgments.