SHERIFF OF ZIMBABWE versus DIGITAL AGRICULTURE CONSOLIDATED (PRIVATE) LIMITED and ANOTHER (446 of 2025) [2025] ZWHHC 446 (28 July 2025)

1 HH 446-25 HCH 2605/25 SHERIFF OF ZIMBABWE versus DIGITAL AGRICULTURE CONSOLIDATED (PRIVATE) LIMITED and AFRICAN BANKING CORPORATION (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE DEME J HARARE, 25 and 28 July 2025 Interpleader Proceedings V R Muzambi, for the applicant. T Magwaliba, for the Claimant P C Fanti, for the Judgment Creditor. DEME J: The Applicant, upon being informed by the Claimant that it lays claim to certain property, approached the court through interpleader proceedings in terms of rule 63 of the High Court Rules, 2021. In case number HCHC140/23, the Judgment Creditor obtained judgment against Voedsel Enterprises (Pvt) Ltd, Innocent Mahufe, Rosemary Mahufe, and Alindah Mashingaidze (hereinafter called “the first, second, third or fourth Judgment debtor respectively”). Upon the instruction from the Judgment Creditor, the Applicant proceeded to attach the property to satisfy the judgment debt on 17 March 2025. The Claimant claimed the property being trucks and trailers outlined in its interpleader affidavit. It claimed that it purchased the property. The Claimant further asserted that some of the trucks and trailers remained with the first Judgment Debtor pursuant to the two-year transportation agreement. The court was not favoured with the alleged two-year transportation contract. The claim was opposed by the Judgment Creditor which raised two points in limine. Firstly, the Judgment Creditor alleged that the Claimant’s interpleader affidavit was commissioned by a legal practitioner from the law firm that is representing the Claimant. Secondly, the Judgment Creditor’s counsel, through oral submissions, argued that the trucks and trailers sought to be declared not executable are not specified on the notice of seizure and HH 446-25 HCH 2605/25 attachment. According to Mr. Fanti, the shares held by the second and third Judgment Debtors in the first Judgment Debtor were attached and not trucks and trailers. Responding to the first point in limine, Advocate Magwaliba argued that for purposes of notifying the Applicant, there is no requirement for the affidavit. He further argued that what is critical at the first stage is simply to notify the Applicant of his or her claim. Reference was made to Rule 63(2) of the High Court Rules, 2021. This notification may be made through a letter, according to Advocate Magwaliba. Responding to the second point in limine, Advocate Magwaliba maintained that the papers before the court do prove that the Judgment Creditor wants to attach the trucks and trailers in the custody of the first Judgment Debtor. Before moving to the merits, I need to make a determination on the points in limine. For purposes of the first point in limine, it is evident that Rule 63(2) defines how interpleader proceedings are commenced. It provides as follows: “Where any person alleges he or she holds any property or is under any liability in respect of which he or she is or expects to be sued by two or more persons making adverse claims in respect of the property or liability, he or she may deliver to the claimants a notice and an affidavit setting out the matters referred to in subrules (7) and (8) respectively.” In terms of Rule 63(2), there is no requirement for Claimant to notify the Applicant by way of affidavit. At this stage, the information supplied to the Applicant by the Claimant can only be in the shape of attachment to the Applicant’s interpleader notice. The proper litigant at this stage is the Applicant. The Claimants will be called upon to file opposing papers in terms of Rule 63(7) which provides that: “(7) The interpleader notice shall— (a) state the nature of the liability, property or claim which is the subject matter of the dispute; (b) call upon the claimants to deliver particulars of their claims in the form of a notice of opposition in terms of subrule (6) of rule 59; and (c) state that the applicant is applying for the court’s decision as to his or her liability or the validity of the respective claims.” At this stage, the Applicant will seek the court to determine the validity of the competing claims laid by the Judgment Creditor and the Claimant to the attached property. In the circumstances, I am unable to invalidate the Claimant’s interpleader affidavit. Accordingly, the point in limine is hereby dismissed. HH 446-25 HCH 2605/25 Moving to the second point in limine, it is apparent that the Judgment Creditor caused the valuation of the trucks and trailers. Mr. Fanti argued that the purpose of the evaluation of trucks and trailers was to ascertain the first Judgment Debtor’s shares. Advocate Magwaliba submitted that the valuation report suggests that the purpose of the evaluation is to establish the value of trucks, trailers and other assets of the first Judgment Debtor. He referred the court to Paragraph 2.7 of the evaluation report where the valuer admits having expertise in the valuation of plant and machinery. Advocate Magwaliba contended that if the Judgment Creditor wanted to determine the value of the shares, they would engage an expert in shares. He further submitted that the value of the shares can only be ascertained through evaluation of the assets and liabilities of a company. In the Claimant’s affidavit, the Claimant alleged that the second and third Judgment Debtor’s shares were derived from the trucks and trailers. More particularly, the Claimant, in paragraph 8, alleged that: “A perusal of the evaluation report, which is the basis of the sale of shares, shows that the value of the shares of the second and third judgment debtors are entirely derived from the trucks and trailers listed in the evaluation report.” This position was not denied by the Judgment Creditor in its opposing affidavit. In paragraph 11 of the Judgment Creditor’s opposing affidavit, the deponent stated that: “This is disputed. The Claimant cannot claim to have been aware of the attachment and the intended sale of the trucks and trailers on second May 2025. It is averred that on 16 April 2025, physical inspection and valuation of the trucks and trailers was conducted by Foreal Properties (Private) Limited under the instructions of the Sheriff and the Auctioneer. I attach hereto a copy of the valuation report and mark it as Annexure R4.” In paragraph 21 of its opposing affidavit, the Judgment Creditor further confirmed that the properties together with shares were to be sold. The relevant portion of paragraph 21 of the Judgment Creditor’s opposing affidavit provides that: “The properties are consequently to be sold together with the sale of shares in that company.” It is not clear why Mr. Fanti is now attempting to distance himself from client’s version of events. In my view, Mr. Fanti fabricated a different version of events without the formal withdrawal of the Judgment Creditor’s pleadings. It is an established principle in our jurisdiction HH 446-25 HCH 2605/25 that pleadings are binding not only to the parties but to the court as well. Reference is made to the case of Zhou Haixi and Anor v Chen Shaoliang and Anor1, where CHIGUMBA J elegantly commented as follows: “It is trite that admissions made in pleadings are binding. See Remo Investment Brokers Private Limited & Ors v Securities Commission Zimbabwe.2 It is a well-established principle that: “A formal admission made in pleadings cannot be ignored by the Court before it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issues or facts admitted. Thus where liability in full, as in casu, is admitted, no evidence is permissible, to prove or to disprove the defendant’s admitted liability. The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the court in that where it is not withdrawn, it is binding on the court and in its face, the Court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.” In casu, the Judgment Creditor did not deny that the trucks and trailers were going to be affected by the attachment of the shares. By admitting that trucks and trailers are to be attached, the Judgment Creditor is prevented from changing this position without the formal withdrawal of the pleadings before the court. Mr. Fanti’s work was simple on the day of hearing. He was supposed to apply the law to the facts as stated by his client. He was not supposed to create new facts on behalf of his client. Reference is made to the case of Nan Brooker v Mudhanda3. On this basis, the point in limine is hereby dismissed. On the merits, the Judgment Creditor averred that the Claimant has failed to prove ownership. It further affirmed that the Claimant has the history of colluding with the first Judgment Debtor. According to the Judgment Creditor, the Claimant once caused interpleader proceedings to be filed after the first Judgment Debtor’s tobacco stocks were attached. Reference was made to the interpleader proceedings in case number HCH5085/23. The Judgment Creditor further affirmed that the purported proof of payment does not show the purpose of payment. For this reason, the Judgment Creditor asserted that the proof of payment proves nothing. It was further alleged that the presumption of ownership must be applied as the vehicles were in the possession of the first Judgment Debtor at the time of attachment. 1 HH613/16. 2 SC 13-13, which cited with approval the case of DD Transport Pvt Ltd v Abbott 1988 (2) ZLR 92 (SC), Gordon v Tarnow 1947 (3) SA 525 (AD), 3 SC5/18. HH 446-25 HCH 2605/25 The sole issue that exercises my mind is whether the Claimant managed to prove ownership of the property on a balance of probability. The position of our law is that the Claimant, in interpleader proceedings must prove ownership on a balance of probability failing which the claim must be dismissed. Reference is made to the case of Welli-Well (Pvt) Ltd v Imbayago and Another4 where the Supreme Court superlatively commented as follows: “It is settled that a party claiming ownership of a property placed under judicial attachment in interpleader proceedings must produce clear and satisfactory evidence to prove such ownership. Such a party bears the onus to prove ownership on a balance of probabilities.” It was alleged by the Claimant that the trucks and trailers remained in the custody of the first Judgment Debtor following the two-year transportation agreement which was to expire on 28 April 2025. Reference is made to paragraph 6 of the Claimant’s opposing affidavit. According to the Claimant, seven horses and seven trailers were subjected to the two-year transportation agreement in terms of paragraph 3.1 of the contract. The Claimant attached no agreement for the alleged transportation agreement. The Claimant affirmed in the Heads of Argument that the separate contract for the two-year transportation arrangement was not necessary. The Claimant stated that: “It is therefore not necessary to ventilate a separate contract, which has nothing to do with the case at hand.” It is a time-honoured principle that he who alleges must prove. The Claimant ought to have laid evidence of the two-year transportation contract. See the case of The Sheriff of Zimbabwe v Quality Gas (Private) Limited and Another5, where the court excellently commented as follows: “The clear position of the law is that he who affirms must prove: Van Der Linden, Institutes of Holland, third edition, page 155. The cardinal rule on onus is that a person who claims something from another must satisfy the court that he is entitled to it: Zupco Limited v Parkhorse Services SC 13/17. It is clear from the above-stated expose of the law that the claimant bears the burden of proving that the property which the Sheriff attached belongs to it.” 4 SC 8/21 5 HH265/23. HH 446-25 HCH 2605/25 A period of two years is a very long period. The Claimant must have attached proof of the transaction in form of the agreement or some financial statements evidencing the operation. Following the Claimant’s failure to prove the two-year transportation agreement, the presumption of ownership arising from possession must automatically be invoked to resolve ownership of the trucks and trailers. It is not disputed that the trucks and trailers were in the possession of the first Judgment Debtor at the time of attachment. For this reason, the first Judgment Debtor is presumed to be the owner of the trucks and trailers. See the case of Muzanenhamo v Fishtown and Ors6. On this basis, the Claimant failed to prove ownership of the trucks and trailers on a balance of probability. Consequently, the claim must be dismissed with costs in terms of the alternative relief. In the result, it is ordered as follows: A. The Claimant’s claim to the property listed in Notice of Seizure dated 17 March 2025 which was placed under attachment in execution of the order in Case No. HCHC 140/23 be and is hereby dismissed. B. The above-mentioned property attached by the Applicant is hereby declared executable. C. The Claimant shall pay the Judgment Creditor’s and Applicant’s costs. DEME J:................................................................. V. Nyemba and Associates, Applicant’s Legal Practitioners. Magaya Mandizvidza, Claimant’s Legal Practitioners. Mawere Sibanda Commercial Lawyers, Judgment Creditor’s Legal Practitioners. 6 SC8/17.