Usal Inv. (Pvt) Ltd. v Chinyamakobvu & Ors (HC 2594 of 2017; HH 241 of 2017) [2017] ZWHHC 241 (12 April 2017)

1 HH 241-17 HC 2594/17 USAL INVESTMENTS (PVT) LTD versus TAURAI CHINYAMAKOBVU and ETHICS CONSULTANCY (PVT) LTD and SHERIFF OF THE HIGH COURT HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 31 March, 3, 4 and 12 April 2017 Urgent Chamber Application T. Hove, for the applicant D. Ngwerume, for first respondent MUSAKWA J: This is an application for stay of execution following the granting of a default judgment against the applicant in case number HC 9990/14 which relates to interpleader proceedings. The background to the matter is that in HC 4487/13 an arbitral award that was granted in favour of the first respondent was registered in this court. A writ of execution was subsequently issued on 19 August 2014 and the writ together with notice of seizure and attachment were served at 11 Earls, Alexandra Park. The process was served on a Mr Chitima who was recorded as a director of Usal (Pvt) Ltd. Interpleader proceedings were then commenced in case number HC 9990/14. In that case Luckmore Chitima deposed to an affidavit on behalf of the claimant (the applicant in the present matter). In that affidavit it was claimed that some of the attached property belongs to the applicant and another company called Bluesat Access (Pvt) Ltd. It is pertinent to note that no proof of ownership was attached to the affidavit. After the issuance of the interpleader notice, Luckmore Chitima also deposed to the opposing affidavit on behalf of the present applicant. In that affidavit he also claimed to be a director of Ethics Consultancy, a Botswana based company. Again, it can be noted that no proof of ownership of the attached goods was availed. HH 241-17 HC 2594/17 There is also a supporting affidavit deposed to by Big Chitima who is the chairman of Blue Access (Pvt) Ltd which also operates from11 Earls, Alexandra Park. Big Chitima claims that they share the same premises with the applicant. He also claimed that a Kipor generator, a satellite communication server and HP Sun Microsystem server that were attached belong to Bluesat Access (Pvt) Ltd. The applicant claims that the default judgment that was granted in HC9990/14 was irregularly procured as it was not served with the notice of set down. This is because its erstwhile legal practitioners, Magoge Mashindi Attorneys had relocated from number 108 Palmer Road, Milton Park. He further submitted that the return of service shows that it was an attempt. As such, Mr Hove submitted that where an irregularity goes to the root of the matter, it should be resolved in favour of the affected party. He referred to the case of African Gold (Zimbabwe) (Pvt) Ltd v Modest (Pvt) Ltd 1999 (2) ZLR 61. As regards prospects of success it is contended that a distinction should be made between Usal (Pvt) Ltd and Ethics Consultancy (Pvt) Ltd (the judgment debtor) as the two are separate legal entities. Mr Hove submitted that it is immaterial that the two companies may have the same directors. He further submitted that it is also immaterial that the companies share the same premises. Although he conceded that there is no proof of renunciation of agency by Magoge Mashindi Attorneys he submitted that process in other proceedings was served at the applicant’s new legal practitioners, Mtetwa Law Chambers, 56 Argyle Road, Avondale. Again, Mr Hove conceded that this was only on 24 March 2017. Mr Ngwerume submitted that the claimant has never been desirous of having the interpleader proceedings despite having triggered them by laying claim to some of the attached property. He highlighted numerous anomalies regarding the addresses to show that there could have been collusion between the applicant and some of the entities. Mr Ngwerume also submitted there was never renunciation and assumption of agency by the applicant’s legal practitioners. He also highlighted possible perjury by Nyaradzo Chatherene Magoge who deposed to a supporting affidavit to the application. He attacked the purported relocation of the applicant’s legal practitioners without notification to all concerned parties. On prospects of success, Mr Ngwerume submitted that there is presumption that property that is found at the judgment debtor’s address for service belongs to the judgment debtor. He also pointed out in the interpleader proceedings the applicant did not prove ownership of the attached goods. Mr Ngwerume also pointed out that there is proof that the HH 241-17 HC 2594/17 first respondent also received salary from the applicant. That demonstrates the applicant and Ethics Consultancy (Pvt) Ltd are one. Order 2 of the Rules of the High Court provides that- “A party who is represented by a legal practitioner shall be at liberty to change or dispense with his legal practitioner at any stage in the proceedings. (2) As soon as possible after a party has changed his legal practitioner, he shall file with the registrar notice of the change, specifying his new address for service, and shall serve a copy of the notice upon all the other parties to the proceedings. (3) Where a notice in terms of subrule (2)— (a) specifies the party’s new address for service, no further service at his former address for service shall be valid; (b) does not specify the party’s new address for service— (i) service of further process by registered post at the party’s last-known address at which post may be delivered shall be valid; or (ii) where there is no such address as is referred to in subparagraph (i), service of further process at the address of the party’s former legal practitioner shall be valid. 6. Renunciation by legal practitioner (1) A legal practitioner may for good cause renounce his agency by giving reasonable notice to his client, the registrar and all other parties to the proceedings. (2) Where a notice given in terms of subrule (1)— (a) specifies a new address for service in terms of these rules, no further service at the address of the retiring legal practitioner shall be valid; (b) does not specify a new address for service in terms of these rules but provides the client’s last known address at which post may be delivered, service of further process by registered post at that address shall be valid, where such service is verified by affidavit; (c) does not specify a new address for service or the client’s last known address at which post may be delivered, service of further process at the address of the retiring legal practitioner shall be valid.” From a reading of the above provisions it is clear that the applicant did not comply with subrules (2) and (3) when it purports to have changed legal practitioners. There was no notice to the Registrar and to the parties. Therefore, service at the only known address for service, number 108 Palmer Road, Milton Park was valid. In her supporting affidavit to the present application, Nyaradzo Catherine Magoge stated that she has been practising under Mtetwa Law Chambers of number 56 Argyle Road for the past two years. She confirms being instructed to represent the applicant in case number HC 9990/14. A number of issues arise from her deposition. It is not in dispute that she used to practise under Magoge Mashindi Attorneys. There is no indication when she quit that law firm. If she did so, there is no assumption of agency that was filed in representing the applicant. It is not clear if she notified the Law Society of change of address to 56 Argyle Road and of having started practice under the new firm. In his reply, Mr Hove sought leave to lead evidence from Nyaradzo Catherine Magoge who was in attendance at the hearing. Apart from the fact that he was supposed to HH 241-17 HC 2594/17 confine himself to points of law only, the request was untenable on account of the fact that Mr Hove was alive to these issues from the beginning. We know that from a deposition by Big Chitima dated 20 December 2016 Nyaradzo Catherine Magoge was said to be practising at number 108 Palmer Road, Milton Park. Therefore, between Big Chitima and Nyaradzo Catherine Magoge one of them must have lied. It can also be noted that despite having been legally represented all along, the applicant inexplicably filed the claimant’s heads of argument in the interpleader proceedings in its own name. This falls foul of s 9 of the Legal Practitioners Act [Chapter 27:07]. This again calls into question when the legal practitioners had renounced agency. As regards prospects of success in the application for rescission, they appear to be non-existent. The applicant has two hurdles to overcome. The first hurdle is that goods that are found under a judgment debtor’s possession are presumed to belong to the judgment debtor.1 The second hurdle concerns proof of the attached goods. In the interpleader claim and opposing affidavit, the applicant tendered no shred of proof of ownership of the attached goods. It has been held that a claimant must set out such facts and allegations which constitute proof of ownership so that a referral to trial would only be resorted where there is conflict that cannot be resolved on the papers.2 In the result, the application is hereby dismissed with costs. Hove Legal Practice, applicant’s legal practitioners Mukwewa & Ngwerume Law Chambers, first respondent’s legal practitioners 1 Zanberg v Van Zyl 1910 AD 258 2 Bruce NO. v Josiah Parkes And Sons (Rhodesia) (Pvt) Ltd And Another 1971 (1) RLR 154