MATHONSI J: The applicant has approached this court on an
urgent basis seeking the following relief:-
“TERMS OF FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final
order should not be made in the following terms:-
(a) First and second respondents be and
are hereby interdicted from removing or disposing of any stock of goods from
Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare until finalisation of
ownership dispute.
(b) First and second respondents be and are
hereby ordered to return forthwith 70 (seventy) boxes of floor tiles removed by
the respondents from Bay 1 of Number 483 Hawthorn Road Lochnivar Harare.
(c) First and second respondents be and
are hereby ordered to return forthwith any other goods that they removed from
Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare.
TERMS OF INTERIM RELIEF SOUGHT (SIC)
Pending determination of this matter, the applicant is
granted the following relief:-
(a) First and second respondents be and
are hereby interdicted from removing or disposing of any stock of goods from
Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare until finalisation of
ownership dispute.
(b) First and second respondents be and are
hereby ordered to return forthwith 70 (seventy) boxes of floor tiles removed by
the respondents from Bay 1 of Number 483 Hawthorn Road Lochnivar Harare.
(c) First and second respondents be and
are hereby ordered to return forthwith any other goods that they removed from
Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare”.
The interim relief sought by the
applicant is exactly the same as the final
relief that it seeks. This is undesirable in that the
applicant seeks to virtually obtain final relief without having proved its
case. This obtains from the fact that in an urgent application, the applicant
is granted relief merely on establishing a prima facie case See Kuvarega
v Registrar General and Anor 1998(1) ZLR 188 (H) 192 G-H and 193
A-B, Qalisa (Pvt) Ltd v Zimra and Anor HB
106/11 at pp 3-4 and Chisina and Ors v Minister of National
Housing and Social Amenities HH 443/12 at p 3.
Confronted with that issue Ms Rupapa for the applicant conceded the
irregularity and sought to amend the interim relief sought submitting that the
papers had been drafted in a hurry owing to the exigencies of the matter.
At the commencement of the hearing of the matter Mr Gumbo for the
first and the second respondents made an application for a postponement to
enable him to file opposing papers which the respondents had not filed as they
were given short notice of the hearing. The application was opposed by the
applicant on the basis that further prejudice will be suffered by the applicant
if the postponement was granted. Ms Rupapa added that the second
respondent has been systematically removing goods which form the subject of the
dispute from the warehouse. On 11 January 2013 she carted away 70 boxes of
floor tiles.
Even as late as yesterday, 23 January 2013, the second respondent removed 250
boxes of floor tiles, a clear indication that she wants to defeat the process
of this court. This court is obliged to protect its process.
The second respondent has not disputed that the goods are being removed even as
the matter is pending in court or that this morning the parties had to attend
at Southerton Police station over the continued removal of the goods. Owing to
the urgency of the matter and the fact that the second respondent continues to
act in disregard of the process that has been issued, the applicant issued
summons against the respondents in case number HC 14184/12 seeking a
determination of the ownership dispute, I refused to postpone the matter.
Indeed, no meaningful case was made for the postponement considering that the
rules do not compel the respondents to file opposing papers in an urgent application.
On the merits of the application, the papers before me show that the parties
entered into an agreement, the spirit of which was that the applicant would
inject money and stock into a joint venture. The second respondent would market
the goods brought into the country on behalf of the applicant for a commission
and was also paid an allowance.
It would appear that at some stage the applicant wanted to suspend the joint
venture agreement as a result of which the parties then signed a written
agreement on 2 March 2012 the terms of which are clear, namely that the goods
or stock being marketed by the second respondent as representative of the first
respondent were to be moved to another warehouse to reduce overheads at their
then warehouse number 1 Waynne Street Harare. In terms of clause 2.6 all the
trading stock was to be placed under the control of one Tigist while the second
respondent continued to market it. The arrangement was to subsist until 30
April 2012.
That agreement was extended by an addendum signed on 17 May 2012to 31 July 2012
at which time the applicant was to take over the responsibility of selling the
outstanding stock. No further extension was made.
Subsequent to that, a dispute arose between the parties over ownership of those
goods. This prompted the applicant to institute summons action, aforesaid,
seeking an order determining the rights of the parties. The first and the
second respondents are still to oppose that action which was filed on 11
December 2012. What they have done though is to ignore the process and resort
to removal of goods as if no litigation is pending.
I agree with Ms Rupapa that if the first and the second respondents
actions are allowed to perpetuate there would be nothing left for the court to
determine in HC 14184/12. Justice therefore demands that until such time that
the respective rights of the parties are determined, the goods in dispute
should remain secured.
I am therefore satisfied that a case has been made for interim relief barring
removal or disposal of the goods which are the subject of the agreement signed
on 2 March 2012 and its addendum signed on 17 May 2012 until the dispute is
resolved by the court.
Accordingly, I grant the provisional order in terms of the draft order as
amended.
Mutumbwa, Mugabe & Partners, applicant's legal
practitioners
Atherstone & Cook, 1st
& 2nd respondents' legal practitioners
