No one wants a visit from the Sheriff . . .

YOU may be wondering what is meant by “interpleader” proceedings. So, I am going to take you through a law crash course and explain to you a procedure you may turn to in the event that you get to this situation. No one wants to be visited by the Sheriff or the Messenger of Court on attachment, especially if you are not part of the proceedings.

There are instances that property belonging to a third party is attached while it is in the possession of a third party who has incurred obligations elsewhere. This happens, and in many instances affected parties often find themselves faced with the prospect of losing their hard-earned assets.

Interpleader proceedings is a thirty-party procedure where the owner of an asset that has been attached by the Messenger of Court or Sheriff for the High Court of Zimbabwe in the course of his official duties is allowed to lay claim on the attached property. There is purpose for making such provision. Imagine if an attachment has been made, and everyone comes to the Sheriff or Messenger of Court and demands release of the property on the basis that they are the owners of the same.

This would make the administration of justice impossible, and this can also result in cases of corruption among court officials tasked with the duty of enforcement of court judgments. The procedure, therefore, presents a formal forum where affected parties can plead their cause, and be formally heard by a court of law.

In interpleader proceedings, the claimant has to set out facts and evidence which constitute proof of ownership of the assets which are the subject of contention. This point was underscored in the case of Muzanenhamo v Fishtown Investments (Pvt) Ltd & Ors SC 8/17, where it was held that the claimant must prove on a balance of probabilities that he owns the property. The question to be answered in interpleader proceedings is whether, on a preponderance of probabilities, the claimant has proved that they are the owners of the assets that they are claiming. (see also See Sabarauta v Local Government Pension Fund & Anor SC 77/17.

The law on interpleader proceedings in respect of onus of proof of ownership is settled. It is trite that where a party lays claim to the property attached, the onus is upon that person to prove ownership. This principle was explored in several cases. In interpleader proceedings, when the messenger of the court or deputy-sheriff interpleads after a movable thing has been attached at the instance of a judgment creditor while in the possession of the judgment debtor, the onus of proving his ownership would be on the third party who seeks to vindicate such movable.

But if the movable is in the possession of such third party at the moment of attachment, the burden of proof will, as a result of the presumption of ownership arising from such possession, be on the judgment creditor. Possession is regarded with such significance that a person who is in possession of a movable thing is presumed to be the owner of it.

In The Sheriff of the High Court v Tiritose Consulting (Pvt) Ltd & Anor HH 347-15 the court said the following: “It is trite in our law that the claimant bears the onus of proving ownership of property claimed in interpleader proceedings . . . This abovestated position is especially true when the property attached was in the possession of the judgment debtor at the time of its attachment. When, however, the property was attached whilst in the possession of the claimant the onus shifts.”

In Greenfield N.O. v Blignaut and Others 1953 (3) SA 597 at 598C the following was said:

“The claimant is as a general rule made the plaintiff, and the burden of proof rests upon him where the goods seized were at the time of seizure in the possession of the judgment debtor, possession being prima facie evidence of title. If, however, the claimant was in possession at the time of the seizure, the burden of proof may be upon the execution creditor, thus reversing the ordinary rule, and the execution creditor may be made plaintiff.”

It, therefore, goes without saying that in interpleader proceedings a person claiming ownership of property that has been attached while it is in the possession of the judgment debtor has the onus to prove ownership thereof.

In other words, if the property attached was in the possession of the judgment debtor or if the property was attached at the judgment debtor’s place, the claimant has the onus to prove that, although the property was in the possession of the judgment debtor, it belonged to him or her.

However, where the property attached was not in the possession of the judgment debtor but was in the possession of the claimant, the onus shifts to the judgment creditor to prove that the property attached is the property of the judgment debtor. Thus the first inquiry, in this case, is who was in possession of the property when the first respondent attached it. This distinction is very important if you want to have a full appreciation of the burden of proof in interpleader proceedings.

Once the question of onus has been established, the claimant has to prove that the property attached did not belong to the judgment debtor and that it in fact belongs to it. This is a function of evidence. The onus is on the claimant to prove its ownership of the property, it is incumbent upon it to not merely make averments, but to substantiate the same with a view to establishing its case by clear and satisfactory evidence. This is why it’s important for you to keep receipts of your purchase in order for you to be able to prove ownership when such need arises.

Interpleader proceedings are on affidavit, and a party has to earn the confidence of the Court by placing such documentary proof to demonstrate that it indeed owns the property in question. The court cannot be faulted for dismissing a claim that is unsupported by evidence. Courts operate on the basis of evidence. It is an elementary principle that an applicant must stand or fall by his or her or its founding affidavit. See Zimbabwe Electricity Transmission and Distribution Company v Ruvinga SC 20/13; Cosmos Cellular (Pvt) Ltd v PTC 2004 (2) ZLR 176 (S).

In case you find yourself in this situation where your assets are attached, you need to engage your attorneys to engage the Sheriff or Messenger of Court with a view to instituting interpleader proceedings. The Sheriff or the Messenger of Court is the applicant in the matter. Once the application is filed a Notice of Opposition has to be filed, and the subsequent processes will also be filed, and ultimately the matter is set down for hearing.

For more fairly recent authorities on the subject you can read the judgment of the Supreme Court in the Genet Mining (Proprietary) Limited v (1)Sheriff Of Zimbabwe (2) Pungwe Mining (Private) Limited SI33/2020. ◆ You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail.com