1

HH 493-15

HC 2451/15

ROBERT CHIHURI

versus

MESSENGER OF COURT, GWERU (N.O.)

and

LAZARUS CHIKADYA

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 24 & 26 March 2015 and 3 June 2015

Urgent Chamber Application

L Ziro, for applicant

T Chapwana, for 1^st respondent

F Nyangani, for 2^nd respondent

TAGU J: The applicant approached this court on an urgent basis seeking a provisional order in the following terms:-

“TERMS OF FINAL ORDER SOUGHT:

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. The 1^st Respondent be and is hereby ordered to maintain control of the motor vehicle Toyota vehicle Land Cruiser Registration No ABP 7833 and not to modify, sale or transfer ownership of the said motor vehicle pending the finalisation of matters CIV ‘A’ 99/15 and HC 2445/15
2. The Respondents shall pay the costs of this application only if they oppose this application jointly and severally the one paying the other to be absolved.

INTERIM RELIF GRANTED

That pending confirmation of this order the Applicant is granted the following relief:-

1. The 2^nd Respondent or whoever is in possession of the said vehicle  Land Cruiser Registration No ABP 7833 is hereby upon service of this order, ordered to return or surrender the motor vehicle without any modifications to the 1^st Respondent custody with all ownership documentation.
2. The 1^st Respondent is hereby ordered to take possession and control of the said motor vehicle referred in paragraph 1 upon service of this order with assistance of the Zimbabwe Republic Police in case of resistance to surrender the vehicle by anyone in its possession.
3. The 1^st Respondent is hereby ordered and not to modify in any form, sale or transfer ownership of the said motor vehicle until confirmation or hearing of this order.
4. The Respondents shall pay the costs jointly and severally the one paying the other to be absolved.

SERVICE OF ORDER

It is ordered that leave be and is hereby granted to the Applicant’s legal Practitioners to effect service of this order upon the Respondent in accordance with the Rules of the High Court.”

The background of this matter is that the applicant was duly employed by a company called Tarisiro Mining Company as its Operations Manager. The company then got embroiled in a labour dispute with its employees leading to an order being granted in favour of the employees who then uplifted a Writ against the company’s property. The Messenger of court in Gweru (hereinafter referred to as the first respondent) attached property perceived to be belonging to the company on the 23^rd December 2014. In the process of attaching the company property the first respondent attached the vehicle in question, a Toyota Pickup Land Cruiser Registration No. ABP 7833 registered in the name of the company Tarisiro Mining in June 2010. At the time of the attachment the said vehicle was in the possession of the applicant.

The applicant is now claiming that the said vehicle had been ceded to him by the company by virtue of it being an employment benefit. The applicant instituted interpleader proceedings in the Magistrates Court, Gweru, in January 2015 which application was dismissed on the 26^th February 2015.

After the dismissal of the interpleader proceedings the first respondent proceeded to advertise the vehicle for sale by public auction in the Gweru Times, a local publication. The sale was then conducted on the 4^th March 2015 and the said vehicle was purchased by the second respondent for US$ 17 000.00. The debt owed by the company to the employees was US$ 8 654.00.

According to the applicant’s founding affidavit the advertising was done by the first respondent on the 2^nd of March 2015. The following day on the 3^rd March 2015 the applicant then noted his appeal to the High Court against the dismissal of the interpleader proceedings. On the 4^th March 2015, 2 days after advertising, the vehicle was sold. The applicant only became aware of the sale on the 13^th March 2015. According to the applicant the interpleader proceedings should have interrupted the running of the period of attachment.

Firstly, the applicant takes issue and exception to the sale which he claimed was not done in terms of Order 26 r 5 (13) and Order 26 r (14) of the Magistrates Court Civil Rules 1980. The argument being that rules state that a notice of sale shall be placed in a local Newspaper at least seven (7) days before the sale, and that the sale shall be done not less than 14 days after the date of attachment.

Secondly, the applicant argued that the vehicle was sold for US$17 000.00 when the vehicle is worthy over US $ 40 000.00. Accordingly, the applicant seeks this Honourable Court to set aside the sale that was conducted by the first respondent, take control of the vehicle and interdict transfer of ownership to the second respondent until both the appeal CIV ‘A’ 99/15 and Court Application HC 2445/15 is heard.

Both respondents opposed the application.

The second respondent’s brief argument was that he indeed purchased the motor vehicle in question from the first respondent but was not aware of any irregularities in the conduct of the sale and neither was he in mala fide in his dealings. He claimed that he has made improvements to the vehicle in question and all he seeks this court to consider are his interests as he was an innocent purchaser. Finally, should the court order the return of the vehicle to the first respondent, then he should not incur any storage costs that may be chargeable and should the sale be set aside then either the applicant or first respondent should pay for the improvements he made on the vehicle.

On the other hand, the first respondent in his opposing affidavit maintained that he complied with the Rules. He challenged the authenticity of the signatures of one Mr Simukai J. Sekeramayi who filed a supporting affidavit to the applicant’s founding affidavit wherein Mr Simukai J. Sekeramayi was stating that the vehicle had indeed been ceded to the applicant.

The first respondent’s story was that following the dismissal of the interpleader proceedings, the first respondent who is the Assistant Messenger of Court for the District of Midlands and Shurugwi, received a letter dated 26^th February 2015 from the judgment creditors’ legal practitioners instructing them to proceed to advertise and auction the said motor vehicle. He then proceeded to advertise for the sale in execution in the Gweru Times for the period 27^th February 2015 to the 6^th March 2015. The auction sale then proceeded on the 4^th of March 2015, seven (7) days after the date of publication of the sale in the Gweru Times.

Mr Felix Mashonganyika, who is the first respondent, submitted further, that although the applicant’s appeal was lodged before the auction sale, it was neither served upon the messenger of court nor upon the judgment creditors’ legal practitioners. As a consequence the sale in execution proceeded on the strength of the dismissal of the interpleader proceedings. He said up to the 26^th March 2015 the day of the hearing of this application no appeal has been served upon the messenger of court but was however, now aware that the notice of appeal was served on the creditors’ legal practitioners on the 13^th March 2015 well after the sale of execution had gone through and the judgment creditors had been paid out. In that regard, according to him, this application for an interdict has since been overtaken by events. The first respondent therefore, argued that the messenger of court complied with Order 26 r 5 (13) and Order 26 r (14) in that the attachment was done on 23^rd December 2014 and the sale was done on 4^th March 2015 which is more than the required 14 days. Lastly he argued that no rule says that institution of interpleader proceedings interrupts the 14 days attachment.

What is not disputed, therefore, is that the applicant only filed his appeal against the dismissal of the interpleader proceedings after the first respondent had already advertised the vehicle for sale. It has not been disputed that up to the day of the hearing of this application no notice of appeal has been served on the first respondent. It was only served on the judgment creditors’ legal practitioners well after the sale had been conducted and the proceeds given to the company employees.

Be that as it may, in my view the issues to be decided are whether or not the sale was conducted in terms of the rules, and if not, the respondents be interdicted from passing on ownership to the second respondent?

Order 26 r 5 (3) of the Magistrates Court Civil Rules (1980) provides that:

“Subject to the provisions of subrule (15) at least seven days before the day appointed for the sale the messenger shall affix a notice:

1. On the door of the Court-house or some other public building in the place where the Court is held,
2. At or near as may be to the place where the sale is actually to take place

And such notice shall set out the day and place where such sale is to be held.”

Order 26 r (14) provides that:

“Subject to the provisions of subrule (15) the day appointed for the sale shall not be less than fourteen days after the time of seizure or attachment.”

In casu, both the applicant and the first respondent attached Annexures ‘E’ and ‘B’ respectively, which are copies of an advertisement for the sale of the motor vehicle in question. The annexures show that the sale was to be conducted on the 4^th of March 2015 at 1000hrs at Fitz-Gerald Auction Yard, 34 Lobengula Avenue, Gweru and that those who wanted to view the said vehicle could do so on the 3^rd of March 2015 starting at 1000hrs after paying a deposit of $500.00. However, both annexures do no show when the advertisement was made.

The applicant claims that the advertisement was posted on the 2^nd of March 2015 while the first respondent says it was posted for the period 27^th February to 6^th March 2015.

In my view, the alleged non-compliance with Order 26 of the Magistrates Court Rules (1980) is non –existent. He who alleges that there was no-compliance has to prove it. Order 26 Rule 12 that refers to publication of notice provides that-

“The messenger, if in his own opinion the value of the attached goods exceeds fifty dollars, shall publish notice of the sale in some local or other newspaper circulating in the district.”

In the instant case this was done in the Gweru Times and there is such evidence on the papers before this Honourable Court. Moreover, it is apparent from the papers before this court that the attachment was on the 23^rd December 2014 and the sale was on the 4^th March 2015. There is undoubtedly more than the required 14 days period in between the two dates. Further, the averments by the applicant that interpleader proceedings interrupted the running of this period are not supported by any authority. This court has not been referred to any such authority, if ever it is there, and therefore the bald averments of the applicant cannot be taken to be the law.

The same argument applies to the averment by the applicant that the transfer of ownership be stayed because the vehicle was sold for $17 000.00 instead of for a price beyond $ 40 000.00. No, and insufficient evidence has been placed before the court to that effect other than the mere bald assertion by the applicant and one Simukai J. Sekeremayi who has been proved not to be one of the Directors of Tarisiro Mining Company Investments (Pvt) Limited that the vehicle is worth more than US$ 40 000.00.

The applicant ought to have furnished the court with sufficient evidence. In support of my position I relied on what was said in the case of Morfopoulous v Zimbabwe Banking Corporation ltd and Others 1996 (1) ZLR 626 at 632 where it was stated that-

“A person wishing to challenge a sale in execution, and particularly one who wishes to base his attack upon irregularity, must take care to place before the Court evidence pertaining to compliance or otherwise with the rules. He would be well advised to produce the conditions of sale, advertisements, any prior valuations and the commissioner’s report. In the absence of challenge properly supported, what else will the court hearing the challenge do but assume that all has been conducted in accordance with laid down procedures?”

In the current case dates and valuations are of the essence. These have not been supplied. In the absence of such evidence, the court is of the view that the sale was done in terms of the rules.

I will now turn to deal with the application for an interdict.

Generally, the requirements for an interdict are-

1. A prima facie and clearly defined legal interest or right;
2. That sufficient grounds exist to believe that the applicant will suffer irreparable prejudice if the conduct is not interdicted;
3. That the balance of convenience favours the applicant, and
4. That the applicant has no other legal remedies at his disposal. (see Boshoff Investments (PTY) Ltd v Cape  Town Municipality 1969 (2) SA 256 (C); Performing Rights Society v Berman 1966 (2 ) SA 355.

Having considered all the submissions the balance of convenience does not favour the applicant. Firstly, it has been submitted that the authenticity of the supporting affidavit of one Simukai J Sekeremayi who purports to be a Director of Tarisiro Mining Company (Private) Limited has been put in issue. A Companies Office search for Tarisiro Mining Company Investments (Pvt) Limited shows that there is no CR 14 in the company file. Further, the Memorandum of Association of the said company lists Directors as Thapelo Kenneth Kunene and Bruce Beven Mujeyi. Simukai J Sekeramayi is not listed as a company Director. These revelations are crucial because it is him Simukai J Sekeramayi who is said to confirm that the attached motor vehicle a Toyota Land Cruiser Registration No. ABP 7833 had been ceded to the applicant at the time it was attached and subsequently sold in execution. Indeed I had sight of the documents referred to by the counsel for the first respondent. It is apparent from those documents before this Honourable Court that there are material variations to the signatures that are attributed to Simukai J Sekeramayi. They are doubtful that they belong to one and the same person and this makes the conduct of the applicant questionable.

Secondly, it has been submitted by the first respondent, and it was not disputed that the proceeds of the sale in execution have already been distributed. This was a labour dispute and the workers must have already spent the money that they received from the sale of the said vehicle which on papers belongs to the company and not the applicant. In the circumstances it is not possible to restore status quo ante. The order being sought by the applicant wound in the circumstances would be a brutum fulmen.

Thirdly, there is need for finality to litigation. The rights which the second respondent has acquired cannot be denied.

The application is accordingly dismissed with costs.

Garikayi & Company legal practitioners, applicant’s legal practitioners

Murambatsina, Tizirai-Chapwanya, 1^st respondent’s legal practitioners

Nyangani Law Chambers, 2^nd respondent’s legal practitioners