MASUKU v CHINYEMBA & ORS 2010 (2) ZLR 31 (H)

Flynote

Court - small claims court - execution of judgment of - procedures applicable - procedures applicable to magistrates court to be followed - such procedures including interpleader proceedings

Practice and procedure - interpleader proceedings - property attached in execution - requirement for messenger of court to institute interpleader proceedings when property claimed by a third party - such requirement applicable to execution in respect of judgment in small claims court

Headnote

Where the messenger of court has attached goods in execution of a judgment debt and such goods are claimed by a party who is not the judgment debtor, then by operation of law it becomes incumbent upon the messenger of court to initiate interpleader proceedings in order to have the status of the attached property determined before execution can continue. It is only when such property has been determined to belong to the judgment debtor that such property can be sold in execution of the judgment in issue. In terms of s 29(2) of the Small Claims Courts Act [Chapter 7:12], procedures in respect of execution of judgments in those courts follow the procedures laid down for the magistrates courts. The messenger would be wrong to blindly proceed with execution in the face of an applicant's claim in respect of the attached property. The Act does not oust the jurisdiction of the High Court in such a case. Unlike the small claims courts, whose operations are governed by statute, the High Court has full original civil jurisdiction over all persons and matters within Zimbabwe. Certainly, the creation of the small claims courts did not exclude the jurisdiction of the High Court in entertaining a case emanating from such courts where execution is being improperly carried out.