Herald Reporter
A PUNTER who won US$5 400 after betting at Bezbets Betting Company has won a High Court challenge against the betting company, which refused to pay him, alleging the properties seized by the sheriff were not registered in its name.
The punter, Prosper Dembedza, had cited Sara Nyaradzo Moyo, the executrix of the late Bernad Sieve, the owner of Bezbet Betting Company, Messenger of Court, and magistrate of Civil Court Ndhlovu.
Dembedza, represented by Mr Peter Patisani, had sought a High Court review after a Harare Magistrate ruled that the claimant (Dembedza) was awarded the attached goods without a decision on whether the claimant owned any of them.
According to the court papers, on May 16, 2024, Dembedza obtained a default judgement for US$5 400 against Bezbets Betting Company, and on May 21, 2024, the Messenger of the Court attached furniture, television sets, cash registers and a generator at the betting company’s premises.
The late Bernard Zieve, described himself under oath as “the applicant’s managing director” and the company as “a trading name of my betting licence”. He obtained an urgent stay of execution and applied for rescission in the company’s name.
On June 26, 2024, Mutasa, a senior magistrate, dismissed the rescission application. She upheld a preliminary point that Zieve had shown no authority to represent the company, holding that “Bezbets Betting Company is clearly not a natural person and it was necessary for the deponent of its founding affidavit to produce proof that he has been nominated to represent that body and found willful default and no bona fide defence.
The company appealed to the High Court.
The notice of appeal complained, among other things, that she erred in treating the appellant as a body corporate. It does not complain of the citation.
Zieve then changed tack, and in July 2024 he lodged an interpleader affidavit in his own name, asserting that the judgment debtor “is non-existent”, that his trading name was “simply Bezbets”, that the gaming licence which, it is common cause, had expired and was in his personal name, and that all the attached goods were his.
Dembedza opposed the appeal, pointing to the two affidavits in which the same deponent had embraced the name he now disowned, to the collusion inherent in that about-turn, to the expired licence and to the fact that the invoices produced did not match the goods attached.
At the hearing the claimant’s lawyer abided by the papers and on September 3, 2024 Ndhlovu ruled that the claimant had raised ‘a point in Amine’, found on the strength of the licence that “the proper judgment debtor is Bezbets” and that “as it stands there is no judgment debtor before the court”, observed that the judgment creditor “needs to rectify the proper citation of the appropriate judgment debtor”, and ordered that the point of law be upheld, that the claimant’s claim “to all the property” be granted and that the property be declared not executable.
He made no finding on ownership, the invoices or collusion. Zieve has since died, and his executrix has been substituted and opposes the application.
However, Dembedza’s ground for review was that there was procedural impropriety by the lower court in that it did not have jurisdiction to review the decision of another magistrate or to upset a Standing order of another magistrate of similar jurisdiction on the aspect of Bezebet Betting Company, saying the existence of the Bezebet Betting Company when the issue had been raised in Rescission proceedings.
Dembedza argued that the decision of the lower court was irrational as it failed to decide on the issues he raised and went on to make an award of property to the executrix without making a finding on the issue of ownership in favour of the executrix.
He also argued that the decision of the magistrate was illegal in that it substituted an extant court order of the Magistrates Court on the aspect of the identity of the judgment debtor in the lower court in light of submissions that had been made that the same judgment debtor had obtained relief in an urgent court application using the same style of Bezbets Betting Company.
They further argued that the decision of the lower court was grossly irregular in that it placed reliance on an expired licence which had been contested by the applicant.
However Justice Joel Mambara ruled that whether the late Zieve, or the business in whose name he traded, owned the goods has never been decided, turns on invoices, receipts and the circumstances of the attachment, and is for the court of first instance to say his estate is entitled to be heard on it.
The judge said a different magistrate hearing the interpleader afresh at the direction of the High Court will not be “reviewing” a colleague, but he will be deciding the claim to the goods, which is all that an interpleader court may do.
The judge, however, granted the review application and set aside the decision of the magistrate.
Justice Mambara also remitted the interpleader proceedings to the magistrate court for determination under a different magistrate, who shall determine the claimant’s claim to the attached property on its merits.
The respondent was also ordered to pay the costs of suit.
