The
applicant seeks a provisional order in the following terms:
“Terms
of Final Order sought
That
you show cause to this honourable court why a final order should not be granted
in the following terms:
1.
All the respondents be and I [sic] hereby interdicted from in any manner
dealing with the matter of ZEXCOM Foundation Investments Funs Limited except
through their legal practitioners.
2.
All the respondent [sic] be and are hereby interdicted from threatening or
causing any harm to applicant through their action or through third parties.
3.
All the respondent or any of their agents be and are hereby interdicted from
going to applicant's office or home without this honourable court's permission.
4. The
respondents are ordered to pay the costs on a higher scale.
Interim
Relief granted
Pending
the determination of this application, the applicant is granted the following
relief:
1.
The respondents be and are hereby prohibited from communicating with applicant
in any manner whatsoever except through their legal practitioners.
2.
The respondents be and are hereby ordered to immediately vacate 120 Jason Moyo
Street, Bulawayo.
3. The
respondents be and are hereby ordered to keep peace against applicant at all
times.”
The
background facts are the following.
The
applicant is a duly appointed provisional liquidator of ZEXCOM Foundation
Investment Fund Ltd.The respondents are
shareholders of ZEXCOM Foundation Investment Fund Ltd.The applicant was
appointed Provisional Liquidator on 4 December 2009. The applicant avers that
since his appointment he has had difficulties in dealing with the respondents.
He avers that in March 2010, the respondents, in the company of eighteen (18)
other persons, came to his offices and threatened him with death if he did not
leave ZEXCOM Foundation Investment Fund Ltd alone. They ordered him to resign
with immediate effect but he ignored these threats. On 21 July 2010, he was
ordered to leave ZEXCOM Foundation Investment Fund Ltd offices by the second
respondent and another person. On 2 November 2010, the first, second and third
respondents came to his offices in the company of two other persons. They were
very abusive. They were camped in his office for more than thirty minutes. They took down his car registration number
and one Thodlana said he was going to find where he stayed and come there and
assault or kill him. He further avers that on 4 November 2010, all the
respondents came to his office and they threatened him again. He said, further,
in April 2011, the respondents caused his arrest. He further states that in
June 2011, the respondents and other persons threatened him outside the High
Court complex. He said he was rescued by the police. He states that on 2
September 2011, the respondents came to his office in the company of more than
thirty persons. The fourth respondent almost overturned his desk. The police
riot squad came and ordered the respondents to leave and they departed. They,
however, threatened to return after the next court hearing in this court
scheduled for 13 September 2011. This time around he decided to file this
application under a certificate of urgency.
The
urgency is articulated as follows in the certificate:
“1.
Applicant has been threatened by respondents over a long period and he fears
that they may carry out their threats now that the cause of these threats is
going to be realized are credible.
2.
Applicant is under a reasonable apprehension that respondents may physically
harm him or kill him.
3.
The matter that is causing his problem is going to be heard on September 13,
2011 and there is no other way this matter can be dealt with before that date
except through an urgent chamber application.” …,.
The
respondents have raised a point in limine that the matter is not urgent.
From the
facts outlined above most of the threats took place in 2010. The time to act,
i.e. the application for the protection interdict was in 2010. In any event,
since March 2010, these threats were not carried out. The applicant managed to
ignore the threats. All these threats were allegedly made to induce fear so
that he would relinquish his position as Provisional Liquidator of ZEXCOM
Foundation Investment Fund Ltd. He has executed his duties notwithstanding
these threats. He had done so without a protection order. Not much has changed
since then to make the situation urgent. The applicant has not bothered to explain why he did not seek this
remedy timeously in 2010 or in 2011.
He is using old threats to obtain relief
under a certificate of urgency.
Accordingly,
I hold the view that the application is not urgent. I dismiss it on that point
alone with costs.
