The Sheriff v Bernadette Nkomo and Thabani Adonijah and Elisha Garaba

The Sheriff of Zimbabwe (applicant) commenced interpleader proceedings after third parties claimed ownership of goods attached in execution of a judgment. The judgment creditor had obtained judgment in case HC 4440/21 against Saphire Investments (Private) Limited and Doreen Semester. Pursuant to the judgment, the Sheriff attached certain property as per notices dated 14 October 2021 and 2 November 2021. The first and second claimants (Bernadette Nkomo and Thabani Adonijah) laid claims to various items of the attached property, including furniture, event equipment, appliances, a Nissan Bongo vehicle (Registration Number ZW 088402), and a 2.5KV petrol generator. The judgment creditor filed opposing papers refuting the claims, but neither the judgment creditor nor the claimants appeared at the hearing. The claimants failed to file opposing papers, resulting in the matter being set down on the unopposed roll.

• Whether the claims by the first and second claimants to the attached property should be upheld or dismissed in interpleader proceedings
• Whether the court could correct a patent error in its own judgment in terms of Rule 29(1) and (3) of the High Court Rules

The order of 2 February 2022 was rescinded and replaced with a new order dated 23 March 2022. The claims of both the first and second claimants to all the attached property (including furniture, event equipment, appliances, a Nissan Bongo vehicle and a generator) were dismissed. The attached property was declared executable. The claimants were ordered to pay, jointly and severally, the storage costs incurred by the applicant from the date of removal to the date of release. The claimants were also ordered to pay the judgment creditor's and applicant's costs on a legal practitioner and client scale, jointly and severally.

A court has the power in terms of Rule 29(1) and (3) of the High Court Rules to amend, vary, correct or rescind its own judgment on its own volition or at the instance of a party where there is a patent error or ambiguity. A patent error exists where the judgment or order granted does not reflect the intention of the judicial officer pronouncing it, and the error must be attributable to the court itself. In interpleader proceedings brought under Rule 63(3), where claimants to attached property fail to file opposing papers and fail to appear at the hearing despite proper service, the court will dismiss their claims and declare the property executable.

The court noted that in applications where alternative reliefs are sought, only the relief that succeeds should be incorporated into the final order, with the alternative being expunged. The court also emphasized the importance of double-checking typed orders before dispatch to avoid errors, noting that the error in this case occurred because the order was dispatched without being referred back to the judge for editing and verification. The court's willingness to invite parties to chambers under Rule 29(3) to inform them of the decision to correct the error demonstrates good practice in ensuring procedural fairness even when exercising the power to correct patent errors.

This case illustrates the operation of interpleader proceedings in Zimbabwe under Rule 63(3) of the High Court Rules, whereby the Sheriff must bring an application when third parties claim ownership of attached property. It also demonstrates the court's inherent power under Rule 29(1) and (3) to correct patent errors in its own judgments where the order does not reflect the judicial officer's true intention. The case reinforces the consequences of failing to prosecute claims in interpleader proceedings - where claimants fail to file opposing papers or appear at the hearing, their claims will be dismissed and they may be liable for costs on an attorney and client scale.