THE SHERIFF FOR ZIMBABWE v TAZVITYA N.O and ANOTHER (435 of 2025) [2025] ZWHHC 435 (18 July 2025)

3 HH 435 - 25 HCH 26/25 THE SHERIFF FOR ZIMBABWE versus TARIRO TAZVITYA N.O and FIRST CAPITAL BANK LIMITED HIGH COURT OF ZIMBABWE DEME J HARARE, 18 July 2025 Interpleader Proceedings B Mahune for the applicant T Tazvitya for the claimant N Mugandiwa for the judgment creditor DEME J: This matter was instituted by way of interpleader proceedings in terms of Rule 63 of the High Court Rules, 2021. The judgment creditor in this matter obtained an order against Rosywood Mahemu Estate (Private) Limited and Shandirayi Makandeni (hereinafter called “the judgment debtors”) under case number HCHC 55/24. The judgment creditor instructed the applicant to attach the property in order to satisfy the judgment debt. The Claimant, in his capacity as Executor to the Estate Late Jim Broosh, informed the applicant that he laid claim to the centre pivot which was attached by the applicant on 22 November 2024. According to the Claimant, the centre pivot is a permanent fixture at Woodlands Farm which belongs to the land. He further argued that the farm belongs to the Estate Late Jim Broosh. A deed of transfer was attached to the Claimant’s interpleader affidavit in support of this position. The Claimant further alleged that the Judgment Debtors are not based at Woodlands and hence there was no reason why the centre pivot was attached. The claim was opposed by the Judgment Creditor. Initially, the Judgment Creditor raised a point in limine to the effect that the Claimant was barred for filing Claimant’s opposing papers and Claimant’s Heads of Argument out of time. This point in limine was eventually abandoned. According to the Judgment Creditor, the centre pivot is not a permanent fixture. It further affirmed that the centre pivot can be dismantled. Further, the Judgment Creditor claimed that a used centre pivot can be put on the market for sale. The Judgment Creditor further maintained that the Judgment Debtors carried out farming activities at Woodlands Farm. According to the Judgment Creditor, the centre pivot was not the only thing that was attached, but the seed potato and some tanks were also attached at this farm. The unclaimed property, according to the Judgment Creditor, was used by the Judgment Debtors for their farming operations at Woodlands Farm. The Judgment Creditor asserted that the centre pivot, like the unclaimed property, was also used by the Judgment Debtors at Woodlands Farm. On this basis, the Judgment Creditor affirmed that the presumption of ownership arising from possession must be employed as the claimed property was possessed by the Judgment Debtors at the time of attachment. The sole issue for determination is whether the Claimant has managed, on a balance of probabilities, to prove ownership of the centre pivot. It is an established position of our law that the Claimant must prove ownership on a balance of probabilities. Reference is made to the case of Welli-Well (Pvt) Ltd v Imbayago and Another1 where the Supreme Court superbly commented as follows: “It is settled that a party claiming ownership of a property placed under judicial attachment in interpleader proceedings must produce clear and satisfactory evidence to prove such ownership. Such a party bears the onus to prove ownership on a balance of probabilities.” Further in the case of The Sheriff of Zimbabwe v Quality Gas (Private) Limited and Another2, the court superlatively commented as follows: “The clear position of the law is that he who affirms must prove: Van Der Linden, Institutes of Holland, 3rd edition, page 155. The cardinal rule on onus is that a person who claims something from another must satisfy the court that he is entitled to it: Zupco Limited v Parkhorse Services SC 13/17. It is clear from the above-stated expose of the law that the claimant bears the burden of proving that the property which the Sheriff attached belongs to it.” In the present case, there are several factors which are common cause. After going through the Judgment Creditor’s opposing affidavit, the Claimant, in the opposing affidavit which was filed after Judgment Creditor’s opposing affidavit, did not persist with the point that the Judgment Debtors were not based at Woodlands Farm. This means that the property was possessed by the Judgment Debtors at the time of attachment. It is not disputed that the applicant attached seed potato and some tanks at Woodlands Farm which were used by the Judgment Debtors for their farming operations. This point was not resisted in the Claimant’s opposing affidavit. For this reason, the presumption of ownership must be employed to resolve the question of ownership. Reference is made to the case of Zandberg v van Zyl3, where the court held that: “… possession of a movable raises a presumption of ownership ….” The case of Zandberg v Van Zyl was quoted with approval in the case of Muzanenhamo v Fishtown Investments (Pvt) Ltd and Ors4. On this basis, the Claimant does have a burden to rebut the presumption of ownership. Mr. Tazvitya submitted that the centre pivot is a permanent fixture and hence must not be presumed to be the property of the Judgment Debtors. However, no evidence was laid before my attention to substantiate the allegation that the centre pivot is a permanent fixture. The Claimant has the onus to prove that the centre pivot is a permanent fixture. A mere allegation does not make a thing a permanent fixture. In the case of Stooks v Minister of Lands and Rural Settlement5, the court held that: “An item does not become immovable by virtue of a lands officer’s mere “say so.” Matimba has not advanced any legal basis for saying that the items are immovable content to only state at para 8 of the opposing affidavit that: “For avoidance of doubt the Torr shed and silos are immovable property which the applicant is not allowed to dismantle or remove. Applicant is authorised to remove the grain auger, centre pivot and all of his household property.” For a thing to be considered a permanent fixture, there are basic factors which ought to be examined. In the case of Stooks v Minister of Lands and Rural Settlement supra, the court quoted with approval, the passage from Silberberg and remarked as follows: “According to the learned author H. Silberberg, Law of Property, Butterworths & Co, 1977, at pp 19 – 20: “A further distinction is made between movables and immovables which applies to corporeal and incorporeal things. It is self-explanatory to the extent that a thing is movable if its condition is such that it can be readily removed from one place to another, having regard to its size, nature and composition; it is immovable if it cannot be so removed. No hard and fast rule can be laid down and no single factor is necessarily decisive, and obviously a thing which is immovable today may become movable tomorrow: e.g. stone before and after it has been quarried. Conversely, a movable may be affixed to an immovable in such a manner that it loses its identity and becomes an integral part of the immovable thing. In these cases the decision whether or not a movable has lost its identity depends prima facie on three factors, viz objectively, the nature of the thing and the manner of its annexation and, subjectively on the intention of the owner of the movable at the time of its annexation. As regards the nature of the movable and the manner in which it has been affixed, their importance has been said to be ‘self-evident from the very nature of the inquiry’. This means that the nature of the thing may determine whether it is at all possible to affix it to an immovable in such a manner as to preserve, or in due course restore, its separate identity, whilst the manner of its attachment will often determine whether the separate identity of the movable has in fact been preserved or restored. In other words, the intention of the person who purports to determine whether a particular movable should become a permanent or only a temporary fixture or part of an immovable thing must be reasonably capable of being realised.” Thus, the Claimant had a burden of laying, before the court, all the evidence that the centre pivot is a permanent fixture. He made hollow assertions that the centre pivot is a permanent fixture. The Claimant ought to corroborate his case by tendering proof on the manner in which the centre pivot is annexed to the land. There was also a need for the Claimant to adduce evidence on the intention of relevant persons at the time of installing the centre pivot. This evidence was going to help the court in determining whether the centre pivot is a permanent fixture or otherwise. Reference is also made to the case of Stooks v Minister of Lands and Rural Settlement supra where the court elegantly remarked as follows: “On that land the applicant affixed structures which are now the subject of this dispute. The nature, size and composition of the items must be considered together with the intention of the person who constructed them in order to determine whether they qualify as movable or immovable. The manner of their annexation or attachment to the ground or land is useful in determining under which category they fall. In constructing them the applicant could have dug them to the ground and poured concrete to make them permanently fixed to the ground. He did not. Instead he used bolts and nuts.” Mr. Tazvitya submitted that every centre pivot must be construed to be a permanent fixture. This submission, in my view, is a mere assumption which is not substantiated by any piece of evidence or research. In the absence of evidence in support of the allegation, I am unable to reach a conclusion that the centre pivot is a permanent fixture. Having been alerted by the Judgment Creditor through the opposing affidavit and Heads of Argument on the dispute of whether the centre pivot is a permanent fixture, the Claimant ought to have sought leave to supplement his evidence in order to corroborate his affirmation. Failure to make such application, according to my considered view, is an admission that there was no additional evidence to back the averment. For these reasons, the Claimant failed to prove ownership of the centre pivot on a balance of probability. Consequently, the claim must be dismissed. Costs ordinarily follow the outcome. I have not been persuaded to have a departure from this established principle. The Claimant must bear costs on an ordinary scale which are reasonably sufficient, in my view. In the result, it is ordered as follows: The Claimant’s claim to the property placed under attachment in execution of judgment in HCHC 55/24 be and is hereby dismissed.The property attached in terms of the Notice of Seizure and Attachment dated 22nd of November 2024 issued by the applicant be and is hereby declared executable.The Claimant shall pay the Judgment Creditor’s and applicant’s costs on an ordinary scale. Deme J: ……………………………………………… Muvingi and Mugadza, applicant’s legal practitioners Bere Brothers Legal Practitioners, claimant’s legal practitioners Kantor and Immerman, judgment creditor’s legal practitioners 1 SC 8/21 2 HH265/23. 3 1910 AD 258 at 272 4 SC8/17. 5 HH436/15. 3 HH 435 - 25 HCH 26/25 3 HH 435 - 25 HCH 26/25 THE SHERIFF FOR ZIMBABWE versus TARIRO TAZVITYA N.O and FIRST CAPITAL BANK LIMITED HIGH COURT OF ZIMBABWE DEME J HARARE, 18 July 2025 Interpleader Proceedings B Mahune for the applicant T Tazvitya for the claimant N Mugandiwa for the judgment creditor DEME J: This matter was instituted by way of interpleader proceedings in terms of Rule 63 of the High Court Rules, 2021. The judgment creditor in this matter obtained an order against Rosywood Mahemu Estate (Private) Limited and Shandirayi Makandeni (hereinafter called “the judgment debtors”) under case number HCHC 55/24. The judgment creditor instructed the applicant to attach the property in order to satisfy the judgment debt. The Claimant, in his capacity as Executor to the Estate Late Jim Broosh, informed the applicant that he laid claim to the centre pivot which was attached by the applicant on 22 November 2024. According to the Claimant, the centre pivot is a permanent fixture at Woodlands Farm which belongs to the land. He further argued that the farm belongs to the Estate Late Jim Broosh. A deed of transfer was attached to the Claimant’s interpleader affidavit in support of this position. The Claimant further alleged that the Judgment Debtors are not based at Woodlands and hence there was no reason why the centre pivot was attached. The claim was opposed by the Judgment Creditor. Initially, the Judgment Creditor raised a point in limine to the effect that the Claimant was barred for filing Claimant’s opposing papers and Claimant’s Heads of Argument out of time. This point in limine was eventually abandoned. According to the Judgment Creditor, the centre pivot is not a permanent fixture. It further affirmed that the centre pivot can be dismantled. Further, the Judgment Creditor claimed that a used centre pivot can be put on the market for sale. The Judgment Creditor further maintained that the Judgment Debtors carried out farming activities at Woodlands Farm. According to the Judgment Creditor, the centre pivot was not the only thing that was attached, but the seed potato and some tanks were also attached at this farm. The unclaimed property, according to the Judgment Creditor, was used by the Judgment Debtors for their farming operations at Woodlands Farm. The Judgment Creditor asserted that the centre pivot, like the unclaimed property, was also used by the Judgment Debtors at Woodlands Farm. On this basis, the Judgment Creditor affirmed that the presumption of ownership arising from possession must be employed as the claimed property was possessed by the Judgment Debtors at the time of attachment. The sole issue for determination is whether the Claimant has managed, on a balance of probabilities, to prove ownership of the centre pivot. It is an established position of our law that the Claimant must prove ownership on a balance of probabilities. Reference is made to the case of Welli-Well (Pvt) Ltd v Imbayago and Another1 where the Supreme Court superbly commented as follows: “It is settled that a party claiming ownership of a property placed under judicial attachment in interpleader proceedings must produce clear and satisfactory evidence to prove such ownership. Such a party bears the onus to prove ownership on a balance of probabilities.” Further in the case of The Sheriff of Zimbabwe v Quality Gas (Private) Limited and Another2, the court superlatively commented as follows: “The clear position of the law is that he who affirms must prove: Van Der Linden, Institutes of Holland, 3rd edition, page 155. The cardinal rule on onus is that a person who claims something from another must satisfy the court that he is entitled to it: Zupco Limited v Parkhorse Services SC 13/17. It is clear from the above-stated expose of the law that the claimant bears the burden of proving that the property which the Sheriff attached belongs to it.” In the present case, there are several factors which are common cause. After going through the Judgment Creditor’s opposing affidavit, the Claimant, in the opposing affidavit which was filed after Judgment Creditor’s opposing affidavit, did not persist with the point that the Judgment Debtors were not based at Woodlands Farm. This means that the property was possessed by the Judgment Debtors at the time of attachment. It is not disputed that the applicant attached seed potato and some tanks at Woodlands Farm which were used by the Judgment Debtors for their farming operations. This point was not resisted in the Claimant’s opposing affidavit. For this reason, the presumption of ownership must be employed to resolve the question of ownership. Reference is made to the case of Zandberg v van Zyl3, where the court held that: “… possession of a movable raises a presumption of ownership ….” The case of Zandberg v Van Zyl was quoted with approval in the case of Muzanenhamo v Fishtown Investments (Pvt) Ltd and Ors4. On this basis, the Claimant does have a burden to rebut the presumption of ownership. Mr. Tazvitya submitted that the centre pivot is a permanent fixture and hence must not be presumed to be the property of the Judgment Debtors. However, no evidence was laid before my attention to substantiate the allegation that the centre pivot is a permanent fixture. The Claimant has the onus to prove that the centre pivot is a permanent fixture. A mere allegation does not make a thing a permanent fixture. In the case of Stooks v Minister of Lands and Rural Settlement5, the court held that: “An item does not become immovable by virtue of a lands officer’s mere “say so.” Matimba has not advanced any legal basis for saying that the items are immovable content to only state at para 8 of the opposing affidavit that: “For avoidance of doubt the Torr shed and silos are immovable property which the applicant is not allowed to dismantle or remove. Applicant is authorised to remove the grain auger, centre pivot and all of his household property.” For a thing to be considered a permanent fixture, there are basic factors which ought to be examined. In the case of Stooks v Minister of Lands and Rural Settlement supra, the court quoted with approval, the passage from Silberberg and remarked as follows: “According to the learned author H. Silberberg, Law of Property, Butterworths & Co, 1977, at pp 19 – 20: “A further distinction is made between movables and immovables which applies to corporeal and incorporeal things. It is self-explanatory to the extent that a thing is movable if its condition is such that it can be readily removed from one place to another, having regard to its size, nature and composition; it is immovable if it cannot be so removed. No hard and fast rule can be laid down and no single factor is necessarily decisive, and obviously a thing which is immovable today may become movable tomorrow: e.g. stone before and after it has been quarried. Conversely, a movable may be affixed to an immovable in such a manner that it loses its identity and becomes an integral part of the immovable thing. In these cases the decision whether or not a movable has lost its identity depends prima facie on three factors, viz objectively, the nature of the thing and the manner of its annexation and, subjectively on the intention of the owner of the movable at the time of its annexation. As regards the nature of the movable and the manner in which it has been affixed, their importance has been said to be ‘self-evident from the very nature of the inquiry’. This means that the nature of the thing may determine whether it is at all possible to affix it to an immovable in such a manner as to preserve, or in due course restore, its separate identity, whilst the manner of its attachment will often determine whether the separate identity of the movable has in fact been preserved or restored. In other words, the intention of the person who purports to determine whether a particular movable should become a permanent or only a temporary fixture or part of an immovable thing must be reasonably capable of being realised.” Thus, the Claimant had a burden of laying, before the court, all the evidence that the centre pivot is a permanent fixture. He made hollow assertions that the centre pivot is a permanent fixture. The Claimant ought to corroborate his case by tendering proof on the manner in which the centre pivot is annexed to the land. There was also a need for the Claimant to adduce evidence on the intention of relevant persons at the time of installing the centre pivot. This evidence was going to help the court in determining whether the centre pivot is a permanent fixture or otherwise. Reference is also made to the case of Stooks v Minister of Lands and Rural Settlement supra where the court elegantly remarked as follows: “On that land the applicant affixed structures which are now the subject of this dispute. The nature, size and composition of the items must be considered together with the intention of the person who constructed them in order to determine whether they qualify as movable or immovable. The manner of their annexation or attachment to the ground or land is useful in determining under which category they fall. In constructing them the applicant could have dug them to the ground and poured concrete to make them permanently fixed to the ground. He did not. Instead he used bolts and nuts.” Mr. Tazvitya submitted that every centre pivot must be construed to be a permanent fixture. This submission, in my view, is a mere assumption which is not substantiated by any piece of evidence or research. In the absence of evidence in support of the allegation, I am unable to reach a conclusion that the centre pivot is a permanent fixture. Having been alerted by the Judgment Creditor through the opposing affidavit and Heads of Argument on the dispute of whether the centre pivot is a permanent fixture, the Claimant ought to have sought leave to supplement his evidence in order to corroborate his affirmation. Failure to make such application, according to my considered view, is an admission that there was no additional evidence to back the averment. For these reasons, the Claimant failed to prove ownership of the centre pivot on a balance of probability. Consequently, the claim must be dismissed. Costs ordinarily follow the outcome. I have not been persuaded to have a departure from this established principle. The Claimant must bear costs on an ordinary scale which are reasonably sufficient, in my view. In the result, it is ordered as follows: The Claimant’s claim to the property placed under attachment in execution of judgment in HCHC 55/24 be and is hereby dismissed. The property attached in terms of the Notice of Seizure and Attachment dated 22nd of November 2024 issued by the applicant be and is hereby declared executable. The Claimant shall pay the Judgment Creditor’s and applicant’s costs on an ordinary scale. Deme J: ……………………………………………… Muvingi and Mugadza, applicant’s legal practitioners Bere Brothers Legal Practitioners, claimant’s legal practitioners Kantor and Immerman, judgment creditor’s legal practitioners 1 SC 8/21 1 SC 8/21 2 HH265/23. 2 HH265/23. 3 1910 AD 258 at 272 3 1910 AD 258 at 272 4 SC8/17. 4 SC8/17. 5 HH436/15. 5 HH436/15.