On 28 June 2017, the judgment creditor (CBZ Bank Limited) obtained judgment in HC 11855/16 against three defendants including Morgan Nkomo for US$154,516.16. When the judgment remained unsatisfied, a writ of execution was obtained and the Sheriff was instructed to attach movable goods at No. 85 Harare Drive, Mt. Pleasant, Harare. On 6 October 2017, the Sheriff attached various goods including three motor vehicles (a Black BMW ABH 4574, a red Hummer ABC 3026, and a Blue Lorry ABI 1448) and household goods. The claimant, Abigail Michelle Zituta (wife of judgment debtor Morgan Nkomo), claimed the attached goods belonged to her and not the judgment debtors. She claimed: the BMW was hers and registered in her name; the Hummer belonged to her uncle Sithole Bande; the Lorry had been sold to Tinashe Ruzvidzo by Morgan Nkomo; and the household goods were hers with receipts to prove it. The Sheriff filed an interpleader application for the court to determine ownership pursuant to Order 30 Rule 205A read with Rule 207 of the High Court Rules, 1971.
1. The Claimant's claim to the property which was placed under attachment in execution of Judgment in HC 11855/16 is hereby dismissed. 2. The property attached in terms of the Notice of seizure and Attachment dated 6 October 2017 issued by the applicant is hereby declared executable. 3. The Claimant is to pay the Judgment Creditor and Applicant's costs of suit on the ordinary scale.
In interpleader proceedings where a claimant seeks to establish ownership of attached property, the onus is on the claimant to prove ownership through credible evidence. Where there is a spousal relationship between the claimant and judgment debtor, courts must be alive to the dangers of collusion while recognizing that spouses can own separate property. Vehicle registration books obtained after attachment, without explanation as to why registration books existing at the time of attachment were not available, do not constitute credible proof of ownership. A claimant must provide substantive documentary evidence (such as receipts, agreements of sale with dates and terms, original registration books) rather than bare assertions or conveniently-timed documentation to discharge the onus of proving ownership.
The court observed that in matters involving close relationships, the temptation to collude is ever present, and instinctively a couple would not want their joint or individual assets to be attached and sold, leading them to fight together to save the property in whatever way and at any cost. The court noted that sometimes this leads parties to prepare documents which are not genuine and cannot stand the requisite test. The court also noted that while in the past registration books would show the name of the previous owner, that no longer appears to be the case, making it more difficult to trace ownership history from current registration books alone.
This judgment reinforces the strict evidentiary burden on claimants in interpleader proceedings, particularly where there is a spousal relationship with the judgment debtor that creates a risk of collusion. It establishes that registration books obtained after attachment, without explanation for why pre-existing registration books are unavailable, will not constitute credible proof of ownership. The case demonstrates the court's willingness to scrutinize claims by spouses of judgment debtors with heightened skepticism, requiring more than bare assertions or conveniently-timed documentation. It provides guidance on what constitutes insufficient evidence in claims to attached property: post-attachment registration books, uncommissioned statements, affidavits lacking detail about transactions, absence of agreements of sale, and failure to produce promised receipts.