EXECUTORS of the late Vice-President John Nkomo’s estate have approached the High Court seeking an order stopping Astra Building Centre employees from attaching a bus over $3 292 salary arrears.
The executor argues that the bus belonged to Nkomo, rather than his company Astra Building Centre and so should not be attached.
On the other hand, the workers argue that the Mercedes-Benz bus belonged to the company and they should attach it so they could recover their money.
Ten workers represented by Samuel Mlaudzi are owed a total of $3 292 and won an arbitration award that the company should pay the sum of money it owed them. The award was registered at the Magistrates’ Court.
The workers obtained a writ of execution, which granted the messenger of court the right to attach property on their behalf so as to recover their payment.
The messenger of court seized a bus belonging to the company, prompting Nkomo’s estate executor, Christopher Dube Banda, to file an application challenging the attachment, saying the property belonged to the late vice-president’s estate and not Astra Building Centre.
Nkomo’s estate is cited as the claimant while the 10 workers were cited as respondents in the application.
But Bulawayo magistrate Marylyn Mutshina on September 16 last year ruled in favour of the 10 workers indicating that the attachment order stands.
In her ruling, Mutshina said sometime in December 2013 the messenger of court served a writ of execution, seized and attached a motor vehicle, which was in the possession of Astra Building Centre on behalf of the 10 workers who had obtained a judgment against the debtor for the sum of $3 292.
“This was pursuant to an arbitration award obtained in November 2013 for payment by Astra Building Centre of arrear salaries,” Mutshina said.
“After the registration of the award with this court, attachment of the vehicle in question was issued in December 2013.
“The claimant is the estate of late John Landa Nkomo, herein represented by its executor.”
She said the executor stated that the attached property did not belong to Astra Building Centre but to Nkomo’s estate.
“The judgment creditor disputes this on the basis that the registration book stipulates the bus belonged to Astra Building Centre, the company where John Nkomo was managing director,” Mutshina ruled.
In his submissions, a company representative had said the bus belonged to Nkomo since it was registered in the estate’s name.
He said the judgment creditor should have applied for corporate veil lifting and if they succeeded in doing so he could then seize the bus.
But Mlaudzi countered the submissions saying the bus’ registration book clearly stipulated that it belonged to Astra Building Centre.
“His name appears in the book in his capacity as the managing director, not that he is the owner,” he submitted.
“The claim is merely a ruse to avoid attachment so as to defeat the judgment creditors’ just claim.”
Mutshina said in her view Nkomo’s estate must bring facts which show proof of ownership.
“The undisputed fact in case is that John Landa Nkomo was the managing director of the judgment debtor,” she said.
“The relevant documentary evidence amply demonstrates that the vehicle in question belongs to Astra Building Centre.
“In the result, the claimants’ position cannot be sustained.
“Its prayer for the order declaring the attached property as belonging to it is hereby dismissed.
“The applicant is ordered and authorised to proceed with the warrant of execution.”
Following the ruling, Nkomo’s estate has since filed an appeal at the High Court indicating that the magistrate erred by holding that Nkomo was the managing director of Astra Building Centre when there was no evidence to support such a finding.
He asked the court to order that the attached vehicle be returned to the company’s custody.
At the moment, the vehicle is still with the messenger of court.
The warring parties are yet to argue the case at the High Court.