The Sheriff of the High Court v Antony William Mackintosh and Kar Corporation (Private) Limited and Pumulani Ncube

The Sheriff attached certain items of property located at 162 The Chase, Mount Pleasant, Harare in pursuance of a writ of execution issued against Harare Kawasaki. This followed a judgment obtained by Pumulani Ncube (judgment creditor) on 25 March 2013 for US$82,511.50 arising from a Consultancy Agreement dated 12 November 2011. The first claimant (Antony William Mackintosh), a director of the second claimant (Kar Corporation (Private) Limited), claimed all the attached goods. The claimants argued that Harare Kawasaki was merely a brand name or trading style used by the second claimant and not a separate legal entity capable of owning assets or being sued. The first claimant also claimed certain vehicles personally based on vehicle registration books. The Sheriff instituted interpleader proceedings to resolve the conflicting claims after the judgment creditor did not admit the claims.

• Whether Harare Kawasaki was a separate legal entity capable of owning assets and being sued
• Whether an incorporated company can be sued in its trading name or style under Order 2A rule 8C of the High Court Rules
• Whether the writ of execution issued against Harare Kawasaki was valid
• Whether property belonging to Kar Corporation (Private) Limited could be attached in execution of a judgment against Harare Kawasaki
• Whether the first claimant's personal claim to certain vehicles should be upheld

1. The first claimant's claim to the Trailer Super Bike, Mazda Demio, Ford Ranger pickup and Range Rover station wagon was upheld. 2. The applicant (Sheriff) was directed to release the said vehicles from attachment. 3. The second claimant's claim to the goods placed under attachment was dismissed. 4. The goods set out in the notice of seizure and attachment dated 29 May 2013, except for the vehicles mentioned in paragraph 1, were declared executable. 5. The second claimant was ordered to bear the costs of the judgment creditor and the applicant.

An incorporated company carrying on business in a trading name or style other than its registered name can be sued in that trading name or style under Order 2A rule 8C of the High Court Rules. The word 'person' in rule 8C includes incorporated companies, as incorporation creates a fictitious legal person. A company that presents itself to the transacting public under a particular trading name and enters into contracts using that name cannot subsequently claim that the trading name is a separate entity to evade liability under judgments obtained against it in that name. Property belonging to a company is executable under a judgment obtained against the company in its trading name or style.

The court observed that it would be 'dishonesty in the extreme' for the second claimant to attempt to evade liability in terms of the judgment taken against it in the name or style in which it related to the public. The court commented that the second claimant appeared to use the two names (Kar Corporation and Harare Kawasaki) interchangeably in order to confound creditors, describing this as 'a real case of hiding behind the proverbial finger.' The court also noted that rules of court are there to regulate the practice and procedure of the court, citing Forestry Commission v Moyo 1997 (1) ZLR 254 (S) 259 A.

This case is significant in Zimbabwean civil procedure and company law as it clarifies that incorporated companies can be sued in their trading names or styles under Order 2A rule 8C of the High Court Rules. The judgment reinforces that companies cannot evade liability by claiming their trading name is merely a 'brand' separate from their corporate identity. It emphasizes that the word 'person' in procedural rules includes incorporated entities, consistent with the legal persona principle. The case serves as authority against attempts by companies to use different names interchangeably to confound creditors and avoid judgment execution.