The first defendant is a peregrinus whose
address is given in the summons as Bracken Gardens Alrode, Johannesburg, South
Africa. The said company does not have property located within the Zimbabwean
jurisdiction but has haulage trucks which ply Zimbabwean routes on commercial
deliveries in Zambia. On 30 April 2009, the plaintiff instituted summons action
out of this court against the first defendant and the second defendant which is
also a peregrinus of South Africa origins.
The plaintiff claimed the replacement of its Toyota
Hilux motor vehicle and a trailer damaged as a result of a collision with the
first defendant's haulage truck on 18 August 2007. He also claimed certain
damages which arose as a result of the same accident.
At
the time the summons was issued, the plaintiff had not obtained a court order
for attachment of the first defendant's property to confirm or found
jurisdiction against the peregrine defendants. It was not until the 9th June
2009, almost 11/2 months after the summons was issued, that the plaintiff filed
an application in this court seeking an order for attachment of property to
found jurisdiction and it was not until the 30th June 2009, exactly 2 months
after the summons had been issued, that the order of attachment of property was
granted by NDOU J under case no. HC879/09. The said order reads, in part, as
follows:
''IT IS ORDERED:
1. That the Deputy Sheriff be and is hereby authorised
and directed to impound any of the 1st respondent's vehicles
crossing the border into Zimbabwe, or already in Zimbabwe, in order to found
jurisdiction.
2. That the Deputy Sheriff shall retain the vehicle so
impounded until litigation in the matter no. HC672/09 is finalised.
3. That 1st and 2nd respondents
pay the storage charges for the vehicle jointly and severally the one paying
the other to be absolved.
4. That 1st and 2nd respondents
pay the costs of this application on an ordinary scale jointly and severally
the one paying the other to be absolved.”
The Deputy Sheriff for Beitbridge effected service of
the summons on the first defendant's driver at Beitbridge Border Post on 12
July 2009, and in pursuance of the order for attachment, he attached an
International Truck registration number LRP 232 GP and a trailer registration
number TXL 411 GP belonging to the first defendant.
This was for purposes of founding jurisdiction when
the summons in the matter had already been issued out.
The attachment of the vehicle and trailer forced the first
defendant to file an urgent chamber application (HC1169/09) on 24 July 2009
seeking an order for the release of the vehicle. The matter was later amicably
resolved and an order granted by consent on 31 July 2009 for the release of the
truck and trailer against a payment of $3,000= to the plaintiff's legal
practitioners in order to confirm jurisdiction.
On 17 November 2009, the first defendant excepted to
the Summons and Declaration on the following grounds:
''1. The Plaintiff's Summons and Declaration, under
case no. HC672/2009, is an invalid process and therefore null and void in that
the summons was issued and sent for service against the first Defendant, who is
a peregrinus before the Plaintiff had obtained an order of attachment to
found or confirm jurisdiction.
2. It is submitted that the order of attachment
granted by the Honuorable Mr Justice Ndou on 30th June 2009 to found
jurisdiction did not serve to validate the summons and Declaration issued
earlier on under case no. HC672/2009 as the granting of the attachment order is
a condition precedent to the issue of process.
3. Further, and in any event, the order for attachment
granted by the Hounourable Mr Justice Ndou as abovestated is invalid as it
ordered the attachment of First Defendant's property which was not within the
jurisdiction of the courts of Zimbabwe at the time that the order was
granted.''
The first defendant, as excipient, prays that the
summons be struck down by reason of invalidity and that the money paid to the
plaintiff's legal practitioners for security be refunded.
In response to the exception, the plaintiff stated
that the exception is without merit by reason that:
1. The cause of action arose within the jurisdiction
of this court;
2. The summons could not be served on the first respondent
because it and its assets are located outside the jurisdiction of this court;
3. An application for attachment was made to
facilitate service of summons which attachment ''found and confirmed''
jurisdiction and therefore the order for attachment was not validating the
summons which was already valid.
Counsel for the excepient has argued that to the
extent that the summons was issued before an order for attachment was sought
and obtained such summons is invalid and of no legal effect. He has cited the
persuasive authority of the learned authors HERBSTEIN and VAN WINSEN, The
Civil Practice of the Superior Courts of South Africa, the 3rd
Edition (1979) of which reads….,:
“An attachment ad fundandam jurisdictionem is
an attachment of the person or property of one who is domiciled and resident in
a foreign country in order to make him amenable to the jurisdiction of the
court. His person or property can only be attached while he or it is within the
jurisdiction of the court out of which the attachment order is issued, and the
effect of the attachment order is either to confirm the jurisdiction which the
court already has in the suit between the parties, or in certain cases, to
afford it a jurisdiction in the matter which it would not other wise have had.''
At 788 the learned authors state:
''Where an incola wishes to sue a peregrinus
and none of the usual grounds upon which the court might have jurisdiction is
present, attachment is a condition precedent to the action for it is upon the
attachment that the court's jurisdiction is founded.''
They go on at 789:
''In addition to the grounds
mentioned by De VILLIERS CJ, quoted above, a court will have jurisdiction to
try a suit arising out of a delict committed within the area of its
jurisdiction, whether the suit be between an incola and a peregrinus or
between two peregrini. But in this case, too, attachment is a
condition precedent to an action. But in an action ex delicto, a peregrinus
cannot obtain an attachment where none of the ordinary grounds of jurisdiction
exists.''….,.
Counsel for the plaintiff has argued that these
authorities should be ignored as they are archaic and that the position of our
law is governed by section 15 of the High Court Act [Chapter 7:06].
I agree with counsel for the plaintiff that the
position in regard to attachment to found or confirm jurisdiction in Zimbabwe
is now clearly governed by statute. I, however, disagree that the issue of
summons must precede the authority to be granted by the court to sue a peregrinus
either by edict or by attachment. Section 15 of the High Court Act [Chapter
7:06], relied upon by counsel for the plaintiff, provides:
''In any case in which the High
Court may exercise jurisdiction founded on or confirmed by the arrest of any
person or the attachment of any property, the High Court may permit or
direct the issue of process, within such period as the court may specify, for
service either in or outside Zimbabwe without ordering such arrest or
attachment if the High Court is satisfied that the person or property concerned
is within Zimbabwe and is capable of being arrested or attached and the
jurisdiction of the High Court in this matter shall be founded or confirmed as
the case may be, by the issue of such process.''…,.
That provision did not discharge the plaintiff from
the burden of having to satisfy the court, before the issue of process, that
the peregrinus was present
within Zimbabwe for arrest or had property within the country capable of
attachment. Monarch Steel (1991) (Pvt) Ltd v Fourway Haulage (Pty) Ltd 1997
(2) ZLR 342…, and ClanTransport Co. (Pvt) Ltd v Govt of the Republic of Mozambique 1993
(3) SA 795 (Z)…,.
In Stanmarker Mining (Pvt) Ltd v Metallon Corp Ltd
& Others 2003 (1) ZLR 389…, CHINHENGO J
stated:
“It must be clear from the above remarks that s15 of
the High Court Act does not dispense with the need to show that the court has
jurisdiction which may be founded or confirmed by the attachment of property or
the arrest of the defendant. That is the single issue which the applicant had
to deal with before he could obtain other associated relief.''
At the time the summons was issued, on 30 April 2009,
neither the first defendant nor its property were located in Zimbabwe. In
addition, no authority or permission had been obtained from the court to issue
the process. Perhaps it was upon a realisation of that glaring omission that counsel
for the plaintiff desperately tried to stretch the meaning of the word
''court'' as used in section 15 of the High Court Act [Chapter 7:06] to include
the Registrar of the High Court, who issues the process, and sought to argue
that by issuing the process the Registrar had permitted and directed its issue
without an order for attachment.
There
is no way the word ''court'' in that section can be interpreted to include the Registrar.
There is no way a summons can be lawfully sued out against a peregrine
defendant without the leave of the court. Where such summons is issued, it is
clearly invalid and of no legal effect.
I now turn to deal with the effect of the attachment order issued by NDOU J on 30 June 2009.
In his application for an attachment order, the applicant disclosed that he had issued summons against the defendants, under case no. HC672/09, for damages and that he wanted ''an order for the impoundment of 1st respondent's truck when it comes into Zimbabwe to found jurisdiction.'' The court was persuaded by the application and granted the order cited….,. Clearly, that order was granted in error as the plaintiff (applicant in HC879/09) had not discharged the onus that either the first defendant or its property was present within the territorial jurisdiction of Zimbabwe and therefore capable of attachment or arrest. In addition, no permission had been sought and granted as provided for in section 15 of the High Court Act [Chapter 7:06] to issue summons; the said summons having been issued without leave.
It is significant that NDOU J's order of 30 June 2009 did not grant such permission, even in retrospect, which could not be done, as attachment or the existence of the defendant or his property within Zimbabwe is a condition precedent to the issue of process.
In the absence of the defendant and/or its property within Zimbabwe, the order made on 30 June 2010 was a nullity. In Ngani v Mbanje & Anor 1987 (2) ZLR 111 (S), the Supreme Court, per KORSAH JA, pronounced categorically that if legal process is instituted based on a cause of action which has not yet accrued it is a nullity and a default judgment granted on the non-existent cause of action is void and of no effect . At 114 G-H and 115A the learned Judge of Appeal said:
''If at the time action was instituted, a right of action had not accrued to the plaintiff or applicant, as the case may be, then no cause of action is established by the initiating process. Put another way, the plaintiff or applicant should at or before filing the initiating process, have a complete cause of action against the defendant or respondent.''
The court went on, at 115 D-F, to state:
''This objection in limine is, in my view, not a mere technical point affecting some provision of adjectival law; it strikes at the very root of the action. It is so fundamental as to render the initiating process a nullity. If there is no cause of action then a judgment pronouncing that a non-existent cause exists is void and of no effect. As LORD DENNING observed in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721;
'If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.'''
See also Heating Elements Engineering (Pvt) Ltd v Eastern & Southern Africa Trade & Development Bank 2002 (Z) (I) ZLR 351 (S)…,.
In light of the fact that there was no property belonging to the peregrini defendant located in Zimbabwe at the time the order for attachment was made that order was a nullity. To that extent, everything which flowed from it including, the service of the summons and the purported attachment of the first defendant's property, was a nullity. To the extent that the settlement of the parties, confirmed by order of CHEDA J, dated 31 July 2009, was predicated on a nullity, it was also a nullity and no legal rights arose from that adventure.
I therefore intend to set aside that order in terms of Rule 449(1) of the High Court Rules. In the result, I make the following order to wit that:
1. The exception by the first defendant be and is hereby upheld.
2. The plaintiff's summons and declaration be and are hereby struck down as invalid.
3. The order for attachment issued on 30 June 2009, under case No. HC879/2009, was issued in error in the absence of the first defendant or its property within the jurisdiction of the court and is therefore null and void.
4. The plaintiff should refund the sum of US$3,000= to the first defendant which was paid as security to his legal practitioners in pursuance of the settlement reached in case no. HC1169/2009.
5. The plaintiff shall bear the costs of suit.
