The Sheriff of Zimbabwe v Alpha & Omega Dairy Private Limited and Seed Potato Co-Operative Limited

The judgment creditor obtained judgment against Gushungo Holdings Private Limited in case HC 4994/18 on 2 July 2018. Pursuant to this judgment, the judgment creditor instructed the Sheriff (applicant) to attach property in execution. On 30 May 2019, the Sheriff attached various movable properties as reflected in the Notice of Seizure and Attachment. The claimant (Seed Potato Co-Operative Limited) then claimed all the movable property on the Notice as its own property, leading to the filing of an Interpleader Notice. At the hearing on 29 October 2019, the claimant made an oral application for upliftment of the bar that was operating against it, which had been effected due to its failure to file heads of argument timeously. The applicant's and judgment creditor's heads of argument had been served on the claimant on 24 July 2019, but the claimant failed to file its heads for over three months. The claimant's legal practitioner attributed this to a misfiling at their offices, discovered only on the hearing date.

• Whether the claimant should be granted upliftment of the bar for failure to file heads of argument timeously
• Whether the claimant's explanation for the delay was reasonable and satisfied the requirements for upliftment of bar
• Whether the claimant's claim to the attached movable property should be upheld

1. The application for upliftment of the bar was dismissed. 2. The claimant's claim to all the movable property which was placed under attachment in execution of judgment HC 4994/18 was dismissed. 3. All the movable property attached in terms of the Notice of Seizure and Attachment dated 30 May 2019 was declared executable. 4. The claimant was ordered to pay the judgment creditor's and applicant's costs on an attorney and client scale.

In an application for upliftment of bar for failure to file heads of argument timeously, the applicant must provide a reasonable explanation for the delay. A claim by legal practitioners that they only discovered non-filing on the hearing date, more than three months after being served with other parties' heads of argument, does not constitute a reasonable explanation and demonstrates either reckless disregard for court rules or an intention to delay proceedings. Where a party is automatically barred due to non-compliance with procedural requirements and fails to satisfy the requirements for upliftment of the bar, both the application for upliftment and the substantive claim will be dismissed.

The court observed that one must wonder what the claimant's legal practitioners thought they were coming to court to do if they had not filed heads of argument, suggesting this was done to delay proceedings unnecessarily. The court also noted that the claimant could not reasonably have misfiled two sets of heads of argument (from both the applicant and judgment creditor) served on the same day at different times, implying the true explanation was that the claimant never intended to file its heads at all.

This case illustrates the strict approach Zimbabwean courts take to compliance with procedural rules, particularly the timeous filing of heads of argument. It demonstrates that unexplained or inadequately explained delays of several months will not be condoned, even where a party claims to have an arguable case. The case reinforces the principle that finality in litigation is important and that parties must adhere to court rules and timelines. The punitive costs order on an attorney and client scale further emphasizes the consequences of procedural non-compliance and what the court viewed as an attempt to delay proceedings. It also demonstrates the interpleader process where the Sheriff brings competing claims to property attached in execution before the court for determination.