Trust Maanda
Legal Position
INTERPLEADER proceedings are proceedings where the Messenger of Court or Sheriff would have attached goods for sale in execution, and a third party intervenes to claim the attached goods as belonging to him or her, and not the judgment debtor.
Attachment of goods would have been done for sale in order for the judgment creditor to be paid from the proceeds of the sale.
It usually happens that when the Messenger of Court attaches property for sale in execution, a third may claim that property as his or her own, and not of the judgment debtor.
Where this happens that the attached property is disputed as belonging to the judgment debtor, the person who claims the property as his or hers must advise the Messenger of Court or Sheriff of that fact.
In that case, the claimant must provide the Messenger of Court with an affidavit, stating that the property attached is his or hers.
The Messenger of Court should then ask the judgment creditor if he or she admits the claim or disputed the claim.
If he or she admits the claim, the goods are released to the claimant.
If the judgment creditor does not admit the claim, the Messenger of Court brings the matter before the court for determination of whether the property belongs to the debtor or the claimant.
These legal proceedings are called interpleader proceedings.
A third party would have intervened or interposed between the judgment debtor and judgment creditor.
In interpleader proceedings, the claimant bears the onus of proving ownership of property claimed.
In Bruce N.O. v Josiah Parkers & Sons Ltd 1972 (1) SA 68 (R) at 70C-E, it was stated as follows: “In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership.”
This above stated position is more so when the property attached was in the possession of the judgment debtor at the time of its attachment.
However, if the property was attached whilst in the possession of the claimant, the onus shifts from the claimant to the creditor who must prove that the property is not of the claimant, but of the judgment debtor.
In Greenfield N.O. v Blignaut and Others 1953 (3) 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.”
Where the goods attached were in the possession of the claimant at the time of their attachment, the onus of proof is on the judgment creditor to prove that they are entitled to attach and execute that property.
In Sheriff v Nhari and Another 2018 (1) ZLR 389 (H), a judgment creditor attached goods belonging to the debtor.
The debtor was married. Her husband interposed by laying a claim on the attached goods.
The goods were attached at the matrimonial home of the judgment creditor and the claimant.
The claimant argued that he was the owner of the property which he obtained before he was married to the debtor.
Alternatively, he argued that the property could not be attached because it was matrimonial property.
The court held that if goods are found in the possession of the judgment debtor, there is a presumption that they belong to the judgment debtor.
In discharging the onus of proof that it owns the property, the claimant should produce proof of ownership of the attached goods.
Claimant must produce proof of ownership such as receipts, agreement of purchase of the attached goods, in his or her name and any other documentary proof that will satisfy the court that indeed the attached goods belong to the claimant.
Bald claim of ownership will not suffice.
The court will dismiss the claim and order the goods to be sold in execution.
Some unscrupulous judgment debtors connive with third parties to claim the attached goods in a way to defeat execution.
Some people form multiple companies so that if goods are attached in respect of a debt of one company, another company intervenes and claims the attached goods as not belonging to the company in debt.
Courts normally are able to see through that subterfuge, and hold that the companies are one, but their separate persona is being used to defeat creditors.
If the claim was to defeat enforcement of a court order, the court will dismiss the claim and order the claimant to pay punitive costs to the judgment creditor.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected].
