NDOU J: The
applicant seeks a provisional order in the following terms:
“Terms of the final order sought
That you show cause to this honourable court why a final
order should not be made on the following terms:
(a) 1st
and 6th respondents be and are hereby permanently interdicted from
attaching and auctioning the assets of the applicant except as provided for in
terms of the Reserve Bank Act Chapter 22:15 in its present form or as amended
by any other law.
(b) Respondents
jointly and severally one paying the other to be absolved pay costs of this
application on an attorney client scale only if they oppose.
Interim relief granted
Pending the hearing of the finalization of this matter by
this honourable court it is ordered that:
(a) Pending
the finalization of the passing of the General Laws Amendment Bill HB 8A, 2010
into law by Parliament by the 1st – 7th respondents be
and are hereby interdicted from auctioning or selling any of the assets of the
applicant in terms of any writ of execution already in the possession of the
respondents.
(b) If
already auctioned by the time of granting of this provisional order the 6th
and 7th respondents be and are hereby directed to, forthwith, within
24 hours of service of this order, cancel any such sale and/or auction agreements
and restore in full the possession of the auctioned items to applicant.”
After hearing submissions by the parties' legal practitioners
I dismissed the application with costs for want of urgency. I indicated then that my reasons for doing so
will follow. These are they.
The relevant background facts of the
case are the following:
The applicant owed the 1st
to 6th respondents various amount as reflected below. The 1st
to 6th respondents individually and separately obtained judgments
against the applicant at this court at Harare.
The applicant did not appeal or challenge these judgments.
The 1st respondent
obtained a judgment against applicant on 8 March 2010 (with costs) in the sum
of US$3 634 830,80 together with interest temporae
morae from 1 September 2009. The 1st
respondent was duly issued a writ of execution on 11 March 2010.
The 2nd respondent
obtained a judgment against applicant in the sum of US$387,313,00 and ZAR485
566,00 with interest at 5% per annum on both these sums from 1 February 2009. The 2nd respondent was duly issued
with a writ of execution on 29 April 2011.
The 3rd respondent on 26
February 2010, obtained judgment against the applicant in the sum of US$23
749,58 together with interest calculated at 5% per annum for 1 December
2009. The 3rd respondent was
duly issued with a writ of execution against the applicant on 22 March 2010.
The 4th respondent, on 6
October 2010, obtained a judgment against the applicant in the sum of US$90
200,48 together with interest calculated at the rate of 5% per annum from 1
March 2010 with costs at an attorney and client scale. A writ of execution was duly issued against
the applicant on 5 March 2011.
The 5th respondent, on 9
December 2009, obtained judgment against the applicant in the sum of US$2 100
00,00 with costs. A writ of execution
was duly issued against the applicant on 21 January 2010.
It is common cause that the
applicant did not pay anything towards the satisfaction of these court
orders. Applicant did not challenge
these judgments, instead, it sought intervention of the Executive arm of
Government. The Executive obliged and
intervened on the applicant's behalf.
The Executive starved off the execution via a statutory instrument. In this regard, on 18 June 2010, the
President of the Republic of Zimbabwe, in terms of the powers bestowed in him
under section 2 of the Presidential Powers (Temporary Measures) Act [Chapter
20:10] (“the Act”) enacted the Presidential (Powers) (Temporary Measures)
[Amendment of the Reserve Bank Act] Regulation, 2010 (S.I. 115of 2010) (“the
Regulations”). The effect of Regulations
was to stay all the proceedings against the applicant that were pending on the
date of its commencement on 18 June 2010.
During the currency of the Regulations, all pending legal proceedings
against the applicant were to be in terms of the State Liabilities Act [Chapter
22:13]. In terms of the Act, the
Regulations can only operate for a maximum of 180 days. The President cannot extend the operation of
the Regulations beyond this period.
There is a dispute on the reckoning of this 180 days period. According to the applicant, such reckoning
has to exclude Saturdays, Sundays and public holidays, so the expiry date of
the Regulations is 4 March 2011.
According to the respondents the 180 days is made up of ordinary days
which include Saturdays, Sundays and public holidays which means that the
regulations expired on 18 December 2010.
It is not important to determine the correct interpretation because the
applicant did not act timeously either way.
Respondents have raised a preliminary point that the application is not
urgent. The respondents' assertion is
that when the Regulations expired in December 2010, the applicant knew that its
protection had ceased. They aver that
the applicant did not do anything to further stay execution of the
judgments. They submit that the
applicant was made aware of this and still it did not do anything because it
had, after realizing the futility of trying to extend the period of operation
of the Regulations beyond 180 days, sought legislative intervention. It should have sought the stay of execution
of the judgments granted in favour of 1st – 5th
respondents pending the legislative intervention it had sought.
It is trite that in urgent applications,
the applicant has to establish that he will suffer irreparable harm if the
application is not treated urgently – Kuvarega
v Registrar-General & Anor
1998(1) ZLR 188 (H); CABS v Ndlovu HH-3-06 and Triangle Limited v Zimbabwe
Revenue Authority HB-12-11.
The applicant has just made a naked
and casual statement on the issue of irreparable harm it will suffer if the
matter is not treated urgently. In the
founding affidavit the applicant avers:
“16 (i)…
(ii) A well found apprehension
that an irreparable injury will be committed and permanent loss suffered if the
goods are sold. The sale is set to begin
on Wednesday the 11th up to Friday 13th May 2011. Other than an urgent no other remedy is
available.”
The certificate of urgency is not
helpful either. All that the certifying
legal practitioner states is the following -
“3. It
is clear that the applicant has approached the legislature and the executive in
an attempt to protect its assets and such pieces of legislation are pending
before the relevant authorities. All
those will come to naught and will be brutum
fluman if no interdict is granted.
The auctioning of property to satisfy debts of US$6 236 093,86 and
ZAR485 566,00 with interest from 2009 will cause serious economic loss to the
applicant and by extension the national economy as applicant is a public
institution.”
All these are bare allegations. This court has no material to work with to
satisfy itself that there will be irreparable harm. In the circumstances, this court cannot begin
to exercise the discretion in the absence of such crucial information. There is a direct link between urgency and
irreparable harm – Silver Trucks and Anor
v Director of Customs 1999(1) ZLR 490
(H) 491 G-H and 492A and Triangle Limited
v ZIMRA, supra.
As alluded to above, even if the
applicant's interpretation of the reckoning of the 180 days is accepted, the
need to act arose over two months before this application was filed. There is no explanation why the applicant did
seek stay of execution soon after the expiry of its protection under the
Regulations. The applicant knows that
Parliament and the President will not merely rubber stamp the intervention that
it seeks. The applicant should have
sought stay of execution upon the expiry of the Regulations. The applicant has not explained why it would
suffer prejudice by being made to pay its debts bearing in mind that it does
not dispute its indebtedness to the respondents. The law as it presently stands allows the
respondents to execute their judgments. It
is only this court that can stay these judgments yet from 4 March 2011
applicant did nothing to seek the interdict for over two months. The applicant
has been jolted into action by the arrival of the evil day. This is not the urgency that is contemplated
by the Rules of this court.
It is for this reason alone that I
dismissed the application with costs.
Messrs Dube-Banda, Nzarayapenga &
Partners,
applicant's legal practitioners
Atherstone & Cook c/o Calderwood,
Bryce Hendrie & Partners, 1st and 3rd respondents' legal
practitioners
Messrs Winterton c/o Majoko
&Partners 2nd
respondent's legal practitioners
Gill Godlonton & Gerrans c/o
Coghlan & Welsh,
4th respondent's legal practitioners
Kanokanga & Partners c/o Majoko &
Partners, 5th respondent's legal practitioners
