Following a labour dispute, the 1st respondent (National Mine Workers Union of Zimbabwe) obtained an order against the applicant (Vumbachikwe Mine) on 15 September 2015, which was registered by the High Court on 15 October 2015. The 1st respondent issued a writ on 28 October 2015, and the 2nd respondent (Sheriff) attached the applicant's property on 20 November 2015, including "2 tractors, 2 graders, 1 x front end loader" as per the notice of seizure. The attachment was conducted by E.M. Magara from the Sheriff's office in the presence of M. Nhari, the applicant's accountant. An auction was conducted on 16 December 2015 by Hollands Auctioneers, where only a front end loader was sold. The applicant contended that the Sheriff attached a "CAT" front end loader but sold a "BELL" front end loader - the wrong machine. The applicant alleged there were two front end loaders on the premises, but only one was present during attachment. The 2nd respondent contended there was only one front end loader that was both attached and sold. The applicant filed an urgent chamber application seeking to stay execution and recover the sold loader.
The matter was referred to trial with the papers filed standing as pleadings. No costs order was made.
Where there is a material dispute of fact in motion proceedings regarding the identity of property that was attached and subsequently sold in execution, and the notice of attachment does not adequately specify which item was attached, the court cannot resolve the dispute on the papers without causing injustice to one of the parties, notwithstanding the principle that courts should adopt a robust common sense approach to factual disputes in motion proceedings. In such circumstances, the matter must be referred to trial for viva voce evidence to be led.
The court noted the procedural history involving multiple judges (BERE J and MAKONESE J) dealing with preliminary procedural issues before the matter came for final determination. The court also observed that the 2nd respondent's attempt to file a chamber application for directions (HC 226/16) appeared to be an attempt to anticipate the provisional order. The court implicitly commented on the importance of sheriffs properly identifying and describing attached property in notices of seizure to avoid subsequent disputes.
This case demonstrates the application of the principle governing when courts should resolve disputes of fact in motion proceedings versus referring matters to trial. It illustrates the limits of the "robust common sense approach" established in Zimbabwe Bonded Fibre Glass v Peesch, particularly in execution proceedings where the specific identity of attached property is in dispute and cannot be determined from the available documentation. The case reinforces the importance of proper documentation in attachment and execution proceedings, particularly the need for sheriffs to adequately specify and describe attached property to avoid disputes about identity.