The Sheriff of Zimbabwe v Gara Family Trust and Munyaradzi Gara and CBZ Bank Limited

Following a judgment granted in favour of CBZ Bank Limited (judgment creditor) on 17 July 2015 in HC 4169/14 for payment of US$98,271.51, the Sheriff attached property at two premises on 29 August 2015: (a) 44 Clyde Road, Eastlea, Harare, and (b) 21 Simms Road, Mount Pleasant, Harare. The Gara Family Trust (1st claimant) claimed ownership of the property at 44 Clyde Road through a Deed of Donation dated 22 January 2013. Munyaradzi Gara (2nd claimant) claimed ownership of the property at 21 Simms Road. The Trust was founded on 22 January 2013, after one of its purported founders, Alfred Muchenje Gara, had signed a guarantee on behalf of the first defendant in favour of the judgment creditor on 2 November 2010. Both claimants filed interpleader claims asserting ownership of the attached property. In a previous urgent application (HC 8152/15) for stay of execution, the same applicants claimed ownership of the property themselves without any mention of the Trust.

• Whether the Gara Family Trust had proven ownership of the property at 44 Clyde Road, Eastlea, Harare
• Whether Munyaradzi Gara had proven ownership of the movable property attached at 21 Simms Road, Mount Pleasant, Harare
• Whether property could be donated to a trust after a guarantee had been signed, thereby diminishing assets available for execution, without the consent of the judgment creditor
• What constitutes sufficient proof of ownership in interpleader proceedings

1. The 1st claimant's claim to the property attached at 44 Clyde Road, Eastlea, Harare placed under attachment in execution of judgment HC 4169/14 was dismissed. The notice of seizure and attachment dated 29 August 2015 was confirmed and the property was declared executable. 2. The 2nd claimant's claim to the property attached at 21 Simms Road, Mount Pleasant, Harare placed under attachment in execution of judgment HC 4169/14 was dismissed. The notice of seizure and attachment dated 29 August 2015 was confirmed and the property was declared executable. 3. The 1st and 2nd claimants were ordered to pay the judgment creditor and applicant's costs on a legal practitioner and client scale.

In interpleader proceedings, claimants must provide clear proof of ownership of attached property. Where a guarantor has signed a guarantee in favour of a creditor, the guarantor cannot thereafter donate or transfer assets to a trust or third party without the creditor's consent while the guarantee remains in force and the debt unpaid, as this would improperly diminish the assets available for execution. Such donations made without creditor consent will not defeat the creditor's right to execute against the property. Proof of ownership in interpleader proceedings requires more than mere assertions; documentary evidence must clearly establish ownership of both immovable and movable property claimed.

The court made observations regarding the legal standing and capacity of trusts to acquire rights and own property, noting that it believed a trust can indeed acquire rights and own property. The court also commented that the initial failure to date an affidavit was merely an error and did not affect the validity of the proceedings. The court observed that it did not regard questions about the Trust's legal standing as an important issue in the circumstances. Additionally, the court made a strong observation that the Trust appeared to be 'a scam' designed to defeat the judgment creditor's rights, suggesting potential fraudulent intent in the creation and operation of the trust structure.

This case is significant in Zimbabwean law for establishing important principles regarding interpleader proceedings and the protection of creditors' rights against fraudulent diminution of assets. It demonstrates that courts will scrutinize attempts to transfer assets to trusts or third parties where such transfers appear designed to defeat execution of judgments. The case reinforces the principle that guarantors cannot unilaterally diminish their assets available for execution without the creditor's consent when guarantees remain in force. It also emphasizes the importance of consistency in sworn testimony and the consequences of making contradictory claims under oath in different proceedings. The judgment provides guidance on the standard of proof required in interpleader proceedings, requiring clear evidence of ownership beyond mere assertion.