High Court Sheriff v Gobey & Anor (HC 3770 of 2014) [2015] ZWHHC 703 (11 August 2015)

1 HH 703/15 HC 3770/14 THE SHERIFF OF THE HIGH COURT and FRANCESCA GOBEY versus CLEOPAS MUYANGWA HIGH COURT OF ZIMBABWE MTSHIYA J HARARE, 16 June 2015 and 12 August 2015 Interpleader T Tandi, for the applicant Z Makoni, for the claimant C Muyangwa, (in Person), judgment creditor MTSHIYA J: This is an interpleader application. Both claimant and judgment creditor filed opposing papers. When the matter was finally heard on 16 June 2015 after two postponements caused by non-service of notice of hearing on the judgment creditor, the judgment creditor, who had all along been a self-actor, attended with a legal practitioner, Mr Chikono. In the hearing I granted an order in favour of the claimant without detailed reasons. These are they; The brief background to this matter is as follows: Following a labour dispute between the judgment creditor and his former employer, a company called JR Gobey (Pvt) Ltd, the parties went to arbitration. On 24 December 2013, the following award was granted in favour of the judgment creditor: “In light of the above, it is the opinion of this tribunal that the claimant was unfairly dismissed taking into consideration how the employment relationship was tackled. The respondent had already pre-determined the fate of the claimant, bearing in mind his position regarding the conduct of the claimant. In the circumstances, this tribunal orders the respondent to pay the following: 1. Salary arrears (US$725 x 49 months) 2. Rent (US$150 x 49 months) 3. Fuel 4020 petrol litres x US$1.50 = = = $35 525-00 $7 350-00 $6 030-00 HH 703/15 HC 3770/14 4. Damages for loss of employment (10 months salary) 5. Total = = US$7 025-00 US$55 930-00 Quantification of terminal benefits was based on the contract of employment and filed written submissions. Award to be implemented within 10 days of receipt of the award. I so award.” The parties in the above award were cited as Muyangwa C v J R Gobey. However, in his award, the arbitrator stated thus; “In the circumstances, it is my humble view that J. R Gobey (Pvt) Ltd t/a Die and pressure casting continues to exist and the claimant can pursue his claims against it if he wishes. It does not matter who owns the company, the company is a legal person in its own right and its liabilities do not cease to exist simply because its ownership changes. In terms of the agreement, Reed plate took over all the liabilities of the company except those outside the ordinary course of business. Labour disputes are in the ordinary course of business and any liabilities arising out of a labour dispute are liabilities in the ordinary course of business. I concur with submissions of Mrs Gobey objecting to the proceedings in that J. R. Gobey (Pvt) Ltd could not say that since Muyangwa was dismissed when the company was owned by other people, Mrs Gobey, he must look to Mrs Gobey for relief. It is my conviction that the claimant can only look to the company that employed him, regardless of who now owns it. A company is a distinct legal persona, separate from its members.” On 5 March 2014, the judgment creditor herein registered the award in this court citing himself and J. R. Gobey as the parties thereto. On 24 April 2014 the claimants’ assets were attached on the basis of the court order registered with this court on 5 March 2014. On 28 April 2014 the claimant advised the Sheriff of the High Court that the attached assets were hers and not that of the company that employed the judgment creditor, namely J R Gobey (Pvt) Ltd. The claim led to the applicant filing this interpleader application. It appears that upon the judgment creditor realising that the court order should have cited his former employer, he approached the court for a correction. The correction was granted on 15 January 2015. The new court order cited the company (i.e. JR Gobey (Pvt) Ltd T/a Die and Pressure Casting) as the respondent. However, the claimant’s assets had already been attached on 24 April 2014 on the basis of the uncorrected order of 5 March 2014. Clearly, at law, the wrong order could not be used for execution. The attachment of the claimant’s assets had to be reversed so that the judgment creditor could now use the correct court order to effect execution. HH 703/15 HC 3770/14 At the hearing of the matter, the parties indicated the wish to discuss settlement. I then proceeded to hear the matter in open court. Upon commencement of the hearing in court, Mr Chikono, for the judgment creditor renounced agency citing differences with the judgment creditor. I then asked the judgment creditor if he wanted to engage another legal practitioner. His answer was: “I want to present myself.” I then proceeded to hear arguments from the parties. As he argued his case, the judgment creditor then placed before me the corrected court order of 15 January 2015. That was the first time all concerned saw the corrected court order. He then conceded that the assets attached on the basis of a wrong court order belonged to the claimant. To me that was the end of the matter. I accordingly then granted the following order: “It is ordered that:- 1. The Claimant’s claim to the property placed under attachment in execution of judgment HC595/14 is hereby granted. 2. The property as set out in the Notice of Seizure and Attachment dated 24th of April 2014 issued by Applicant is declared not executable, and 3. The judgment creditor pays the costs of the Claimant and the Applicant.” Messrs Kantor & Immerman, applicant’s legal practitioners Messrs Coghlan Welsh & Guest, claimant’s legal practitioners