CHIHOTA v MUNYARIWA & ORS 2014 (2) ZLR 206 (H)

Flynote

Practice and procedure — interpleader proceedings — competing claims in respect of goods under judicial attachment — duties of sheriff in regard thereto — referral of the claim by a third party to the judgment creditor before commencing interpleader proceedings — sheriff not entitled unilaterally to remove goods

Headnote

The first respondent obtained judgement against the third respondent and issued a writ against the third respondent's property. The first respondent instructed the Sheriff to execute against the third respondent's property, whereupon the Sheriff placed under attachment certain items of property at a certain stand in Gweru. Those goods were later claimed by the applicant who had visited that stand, which was where he kept his equipment, and found that the locks had been changed. He also found the writ of execution and the notice of attachment showing that his equipment had been attached. At the instance of the Sheriff, the applicant instituted interpleader proceedings which he expected the Sheriff to issue out of the court in order to resolve the conflicting claims. He delivered the process to the Sheriff and paid the requisite fee to enable the issuance of the interpleader application. He was laying a claim on all the property that had been attached. Instead of staying execution, the Sheriff telephoned the messenger of court and instructed him to forthwith remove the property and put it in storage. This was duly done.

Held, that where goods under judicial attachment are claimed by a party who is not the judgment debtor, such claim must first be investigated before execution proceeds. Ideally, the sheriff should refer the matter to the judgment creditor and enquire whether he is prepared to admit the claim or not. If he is, the matter should end there and the goods should be released from judicial attachment. If the judgment creditor does not admit the claim, then the conflicting claims will have to be resolved in terms of Order 30 of the High Court Rules 1971 (RGN 1047 of 1971) which sets out the procedure to be followed in interpleader proceedings. In terms of r 205A(2), in regard to conflicting claims with respect to property attached in execution, the Sheriff has the right of an applicant and the execution creditor has the right of a claimant. In terms of r 206(2), where the claim relates to a thing capable of delivery, the applicant must tender the subject matter to the registrar when delivering the interpleader notice or take such steps to secure the availability of the thing in question as the registrar may direct. It is for the registrar, perhaps after taking into account the exigencies of a particular matter, to give directions as to how the goods should be dealt with. It is wrong for the Sheriff to proceed mero motu to remove goods that are being claimed without even seeking an input from the judgment creditor and without the specific directions of the registrar.