SC 65-14 AIR ZIMBABWE v NHUTA & 2 ORS

    AIR     ZIMBABWE     (PRIVATE)     LIMITED

    AIR     ZIMBABWE     HOLDINGS     (PRIVATE)     LIMITED

v

    STEPHEN     NHUTA

    DEPUTY      SHERIFF      HARARE

    SHERIFF     OF     ZIMBABWE

 

THE SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GARWE JA & PATEL JA

HARARE, NOVEMBER 18, 2013 & SEPTEMBER 15, 2014

Adv L Uriri, for the appellants

Adv T Mpofu, for the respondents

 

ZIYAMBI JA:  This is an appeal against a judgment of the High Court dismissing with costs an urgent application brought by the appellants for the release from ‘attachment and execution’ of certain motor vehicles and other assets attached by the second respondent (“the Deputy Sheriff”) on the appellants’ premises on 12 April 2013.

THE BACKGROUND

The first and second appellants are companies duly incorporated according to the laws of Zimbabwe and whose registered office and principal place of business is situate at the Harare airport.

The first respondent is an ex-employee of the second appellant.  Sometime in October 2010, an arbitral award for outstanding salary and benefits was made in his favour.  No appeal was lodged against the decision of the arbitrator and the award was registered with the High Court on 5 September 2012.  On 19 October 2012 he caused to be issued a writ of execution on the strength of which the Deputy Sheriff attached and removed twenty–nine vehicles which were found on the appellants’ premises at the Harare airport. The appellants alleged that interpleader notices were filed to ‘safeguard the claimants’ interests which notices are still pending’.  Indeed it appears that interpleader proceedings in the name of the first appellant as claimant and the first respondent as judgment creditor were commenced in the High Court on or about 15 November 2012 and not concluded. (I pause here to observe that in terms of the High Court Rules, interpleader proceedings in respect of property attached in execution are required to be brought by the Deputy Sheriff, as applicant, and the person(s) claiming ownership of the attached property as claimant(s)[1]).

The appellants further alleged that in December 2012, s 8 of the Finance Act (No.2) of 2012 (“the Finance Act”) was enacted with the  sole purpose of protecting, from attachment or execution, the property of the appellants as the successor companies of the Air Zimbabwe Corporation and that following this enactment, and in February 2013, the first respondent released the attached motor vehicles subject to the appellants paying to the Deputy Sheriff storage fees which had accumulated in the sum of US$10 000. The appellants were therefore surprised when, on 12 April 2013, the Deputy Sheriff returned with the same writ of execution and attached the same motor vehicles which had previously been released from attachment.




[1] Rule 205A which provides:-“(2) In regard to conflicting claims with respect to property attached in execution, the Sheriff or DeputySheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant”

 

.

 

2014

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