THE SHERIFF OF ZIMBABWE APPLICANT
VIRGINIA SIBANDA CLAIMANT
OLD MUTUAL PROPERTY INVESTMENT JUDGMENT CREDITOR
CORPORATION (PRIVATE) LIMITED
HIGH COURT OF ZIMBABWE
HARARE, 26 January 2018 and 23 May 2018
Opposed Matter- Interpleader
Ms T. Mukwesha, for the applicant
F. Mafuna, for the Claimant
A. Muchandiona, for the Judgment Creditor
MWAYERA J: On 26 January 2018, after reading documents filed of record and considering submissions by the respective counsels of the parties I upheld the claimant’s claim and declared that the property placed under attachment was not executable. The written reasons for my disposition are captioned herein.
The background to the application is that the judgment creditor obtained a judgment under HC 10057/16 in its favour. The defendants in that matter Straitia Investments (Pvt) Ltd and Jethro Sibanda were jointly ordered to pay US$153 300-49 plus interest and costs. Pursuant to the order, the judgment creditor caused a writ of execution to be issued. The applicant, that is the Sheriff attached movable assets at 146 Twickenham Drive, Northwood Mount Pleasant, Harare. Irked by the attachment the claimant caused the applicant to institute interpleader proceeding on the basis that the property attached by the Sheriff belonged to her and not the defendants that is the judgment debtors.
In an interpleader application the law is settled. The onus is on the claimant to prove ownership of the property so claimed. See the case of Phillips and Anor v Ameen and Anor HH 108-89, Bernstein v Visser 1934 CPD 270 at 272, and Deputy Sheriff, Marondera v Travese Pvt Ltd and Anor HH 11/2003. In case of Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 at 70C-E it was succinctly stated as follows: