High Court Sheriff v Rongxin Mining (Pvt) Ltd & Anor (HC 10842 of 2014) [2015] ZWHHC 542 (16 June 2015)

1 HH 542-15 HC 10842/14 THE SHERIFF OF THE HIGH COURT versus RONGXIN MINING (PRIVATE) LIMITED And FREDDY MAKUVISE HIGH COURT OF ZIMBABWE MTSHIYA J HARARE, 28 May 2015 & 17 June, 2015 Opposed application Ms Malaba, for applicant H Ranchod, for claimant H Chitima, for judgement creditor MTSHIYA J: This is an interpleader application. On 5 September 2014 the following consent order was granted in favour of the Judgement Creditor; “IT IS ORDERED BY CONSENT THAT: 1. The defendants shall pay US$60 000.00 being 10% commission on an investment of U$60 000.00 brokered by the plaintiff. 2. The US$60 000.00 shall be paid through plaintiff’s legal practitioners on or before 30 September 2014. 3. The balance of plaintiff’s claim shall be referred to trial in terms of the joint pre-trial conference minute signed by the parties’ legal representatives. 4. There be no order as to costs.” On the basis of the above court order and on the instructions of the Judgment Creditor, on 6 November 2014, the Sheriff of Zimbabwe attached various goods allegedly belonging to the judgement debtors who have not been cited in casu. The judgment debtors, in the consent order, were Zhuwakinyu Chazarira (first defendant) and Xingrong Hu (second defendant). On 19 November 2014 the claimant herein advised the applicant that the attached goods belonged to it. That led to the applicant filing this interpleader application on 5 December 2014. The attached goods included mining equipment, vehicles and office equipment. As already stated, the claimant alleges that the attached goods belong to it and that it has no relationship with the judgement debtors. It states that the assets were imported into HH 542-15 HC 10842/14 Zimbabwe following the grant to it of an Investment Licence by the authorities in Zimbabwe. It says the equipment was meant for its mining operations in Zimbabwe and it had legally imported it into the country as evidenced by documentation from The Zimbabwe Revenue Authority (ZIMRA). The claimant went on to argue that, although the judgement debtors might have had an interest in the claim, the court should recognise the fact that it is a separate legal entity whose property did not belong to them (judgement debtors). On its party the applicant, who has no interest in the matter, stated that it would abide by the court’s decision. The judgement creditor initially raised a point in limine, namely that the affidavit used to lay a claim to the attached property was not properly signed and therefore there was no claim. However, that claim was not persued in submissions. In any case the point in limine would not have been upheld because the rules do not specify how a claimant informs the applicant of its claim. It could be verbal or be through any other written instrument that moves the applicant to file an interpleader. The situation, however, would have been different if the affidavit in the opposing papers of the claimant were not properly executed. I fully agree that the property of the company should be distinguished from that of its shareholders. That is exactly what the law says. However, the judgement creditor has, in my view, correctly argued that the claimant has failed to place before the court proof that the attached assets indeed belong to it. The assets can only be removed from attachment upon ample proof of ownership by the claimant. There is no such proof in casu. It is true that some assets may have been a listed on the ZIMRA receipts. That alone, however, does not tell us that the judgment debtors, whose interests on the claimant were not denied, could not have imported some of the assets through “their” company. It is not only the claimant who could import the listed items In any case, why would the claimant fail to produce such evidence as clear receipts and registration books for the attached vehicle(s). It would be inappropriate for this court to allow judgment debtors to hide behind the corporate veil in order to avoid payment of personal proven and accepted debts. The claim in casu becomes even more dismissable when the judgment creditor states; “(ii) Immediately after the attachment of defendant’s property and on 11 November 2014 one Anqi Hu, a Director of Rongxin Company (Private) Limited, approached me and made an undertaking to repay the debt on terms. I attach as Annexure “B” hereto her payment proposal on behalf of defendants which I then accepted. I confirm that I received the initial payment of US$8 000.00. Again, this proposal was not made in good faith as it made with a view to buying more time for defendants while they finds ways of defeating my claim. The present application is nothing but a way of trying to defeat my claim.” HH 542-15 HC 10842/14 (iii) I am aware that defendants own 65% Shares of Rongxin Mining Company (Private) Limited. I attach as Annexure ‘C” the company’s investment License No. 1870 dated 26 June 2013. The Defendants are, therefore, direct owners of the attached goods to the extent of their shareholding, which goods may well be individually owned. 3.3. The mention of Rongxin Mining Company (Private) Limited is designed to mask defendants’ ownership of the goods attached.” It is worthnoting that it is actually the deponent to the claimant’s affidavit who, on 11 November 2014, signed the following document: “11 November 2014 I Anqi Hu, on behalf of Zhuwankinyu Chazarira to pay USD 60 000.00 which is 10% of the sum of $600 000.00 in following terms 12 Nov 2014 USD$8 000.00 12 Dec 2014 USD$14 000.00 12 Jan 2015 USD$14 000.00 12 Feb 2015 USD $14 000.00 13 Mar 2015 USD$10 000.00 Anqi Hu” When the above note was written, the assets being claimed had already been attached. Surely by that time Mr Anqi Hu, a Director of the claimant, must have known that wrong assets had been attached. He did not say so but went on to propose settlement terms and even made a payment of $8 000.00. A week later his colleague, Mr Xingron Hu, made this claim to the applicant. Like his colleague, Mr Anqi Hu also knew what had been imported under the Investment Licence. However, as at 11 November, 2014, Mr Anqi Hu pretended not to know and only came up with a different position on 28 January 2015, when he swore to the affidavit herein, in support of the claimant’s claim. The papers before me do not even challenge the place of execution. This is so because that is where the judgement debtors operated from. That also reinforces the principle that possession of a movable asset raises a presumption of ownership. The assets were attached at the premises used by the judgment debtors. The assets, in my finding, belonged to the judgement debtors. See Bruce NO v Josiah Parkes & Sons (Rhodesia) (Pvt) Ltd and Another 1972 (1) SA 68 (R)). In view of the foregoing, I am not satisfied that the claimant has a valid claim to the attached assets. The claimant’s claim is dismissed with costs. Messrs Kantor & Immerman, applicant’s legal practitioners Messrs Hussein Ranchod & Company, claimant’s legal practitioners Messrs Mbidzo Muchadehama & Makoni, judgement creditor’s legal practitioners HH 542-15 HC 10842/14