MAFUSIRE J: The
applicants brought the above application under a certificate of urgency. In the
interim they sought the release of certain goods, mostly vehicles, that had
been attached in execution. It was also sought as an interim relief an order
that the respondents should pay any storage costs that might have been incurred
as a result of the attachment of the assets. For the final order it was sought
that the actions of the respondents be declared illegal for allegedly
contravening s9A of the Finance Act [No2] of 2012 [sic] as read with
the State Liabilities Act, [Cap 8:14]. One has to read the main body
of the application to appreciate what exactly were those actions which the
draft order sought to have declared as being illegal and a contravention of the
two statutes.
The final relief also sought an order barring the
respondents from attaching or executing against the assets of the applicants “…
and any company in the Air Zimbabwe Stable”. Finally, the final relief
sought an order of costs on the higher scale.
I heard the matter on an urgent basis on 25 April 2013.
After argument I dismissed the application with costs for lack of urgency and
lack of merit. I gave my reasons ex tempore. On 26 April 2013
applicants' legal practitioners wrote to seek the reasons for my decision. The
letter was placed before me only on 29 April 2013, presumably because of the
supervening weekend. My reasons for dismissing the application now appear
below.
To avoid confusion I shall refer to the first applicant as
Air Zimbabwe; the second applicant as Air Zimbabwe Holdings or the two of them
collectively as applicants; the first respondent as Nhuta and the second and
third respondents collectively as the Deputy Sheriff.
The circumstances of the case are that Nhuta was a former
employee of Air Zimbabwe Holdings. In October 2010 an award for outstanding
wages and benefits had been made in his favour. He had subsequently, in
September 2012, registered the award as an order of this court. He proceeded to
execute. It seems that in November 2012 Air Zimbabwe filed papers with this
court under the case reference no HC 9412/10. Therein
the Deputy Sheriff was cited as the applicant, Nhuta as the judgment creditor;
Air Zimbabwe Holdings as the judgment debtor and Air Zimbabwe as the claimant.
During argument in the urgent chamber application on 25
April 2013 all the parties before me, particularly the applicants, kept
referring to HC 9412/10 as interpleader proceedings.
When I repeatedly expressed concern that the so-called interpleader proceedings
seemed to have lain dormant for almost three years Ms Rupapa, counsel
for the applicants, repeatedly confirmed that indeed that had been the case.
She seemed to place the blame for the delay on the deputy sheriff allegedly for
not having taken any action. She also seemed to blame Nhuta allegedly for
having refused to recognise those proceedings as interpleader. I now find this
quite curious. Since no citation to those proceedings had been given in the
founding papers to the urgent chamber application, and since during argument applicants'
counsel kept making reference to those proceedings, I asked for a copy.
I now find that despite the case reference number
having reflected …./10 on the index [the only place or
document bearing the case number], a clear reference to year 2010, on a closer
inspection and of a reading of those papers it seemed in fact that the
proceedings had only been filed with this court in November 2012, and not way
back in 2010. The founding affidavit to those proceedings had been executed
only on 15 November 2012. So I have wondered why Ms Rupapa maintained
that the interpleader proceedings had been dormant since 2010.
Be that as it may, in those proceedings Air Zimbabwe, as
the claimant, claimed ownership of the assets which the Deputy Sheriff had
attached in pursuance of the writ that had been issued at Nhuta's instance. In
the founding affidavit deposed to on behalf of Air Zimbabwe in those
proceedings, the order sought was one to stop the execution of certain assets
allegedly belonging to Air Zimbabwe and to cancel the writ of execution. In the
draft order was sought an order to dismiss Nhuta's claim! Nothing could be more
confused!
It emerged from Nhuta's opposing papers in the urgent
chamber application before me and in the parties' argument that on 19 December
2012 Air Zimbabwe had brought an urgent chamber application under HC 14467/12
to stop execution of the attached property but that MTSHIYA J had dismissed it
for lack of urgency. These facts, which were plainly material, were conspicuous
by their absence in the founding papers of the proceedings before me.
The urgent chamber application before me was premised on
the allegation and contention that the assets belonging to Air Zimbabwe or Air
Zimbabwe Holdings or any other company hailing from “… the Air Zimbabwe
Stable” had become immune from attachment and execution by virtue of the
Finance [No 2] Act [being Act No 6 of 2012, not Act No 2 of 2012 as wrongly
cited by applicants], as read with the State Liabilities Act, [Cap 8: 14].
I shall refer to the Finance [No 2] Act, No 6 of 2012 as “the Finance No
2 Act”. It was also argued that the applicants both hailed from the
Air Zimbabwe stable; that both were successor companies to the Air Zimbabwe
Corporation; that the Finance No 2 Act had been promulgated in December 2012;
that following that promulgation Nhuta had, in response to the promulgation,
caused the release of the attached assets; that it was therefore surprising
that Nhuta was now apparently recanting this position by re-instructing
the re-attachment of the same assets on the basis of the same writ and that
this was unlawful. It was further argued that as a matter of fact the attached
assets did not belong to Air Zimbabwe against which Nhuta had no judgment but
to Air Zimbabwe Holdings and that the proof of such ownership was in the
interpleader proceedings.
Incidentally, the only reference to the so-called
interpleader proceedings in the founding papers before me was in paragraph 9.1
of the founding affidavit. It read:
“9.1 Of the 29 vehicles
which were attached, none belonged to 2nd Applicant. The vehicles
belonged to First Applicant and other companies in the Air Zimbabwe stable and
as a result interpleader notices were filed to safeguard the Claimants'
interests. The Interpleader notices are still pending”.
The applicants argued that the wording of the Finance No 2
Act, particularly the use of the word “any” meant that there was no
limit to the number of companies that could be formed by “… the shareholder
or board of the National Airline …” as successor companies to Air Zimbabwe
Corporation under the Air Zimbabwe Corporation [Repeal] Act [No 4 of 1998]
[hereafter referred to as the “Repeal Act”].
It transpired during argument that contrary to the
allegations by the applicants in their founding papers the release from
attachment of the assets in question at Nhuta's instance in February 2013 had
not been the result of any respect by Nhuta of the new Finance No 2 Act which
he had never at any stage recognised as applying to any company other than Air
Zimbabwe, but that the release followed an agreement between Nhuta and Air
Zimbabwe Holdings regarding a payment arrangement in terms of which Air
Zimbabwe Holdings would liquidate the judgment debt. The re-attachment of the
same assets in terms of the same writ in April 2013 was triggered by Air
Zimbabwe Holding's failure to respect the payment terms. Again this material
fact was not disclosed in the applicants' founding papers.
I dismissed the urgent chamber application firstly for lack
of urgency. It was argued on behalf of the applicants that the need to act had
arisen from 13 April 2013 when Nhuta had caused the re-attachment of the
assets. In the certificate of urgency it was stated that the removal of the
assets had been scheduled for Monday, 22 April 2013. That was the very day the
urgent chamber application was filed. Therefore, somehow it was expected that
the application would be filed, and on the same day the registry would complete
all the necessary administrative procedures of receipting the court fee,
issuing the application, allocating it to the duty judge who in turn would
peruse the papers, arrange set down and advise applicants' counsel who in turn
would have had to serve the papers and still have the matter heard on the same
day. As it happened the application was only heard on 25 April 2013 after
applicants' counsel had intimated that the removal of the attached property was
no longer going ahead on 22 April 2013. But it was never explained when next it
was feared it would happen.
In Kuvarega vRegistrar-General & Anor
1998 [1] ZLR 188 [H] CHATIKOBO J said[1]:
“What constitutes urgency is
not only the imminent arrival of the day of reckoning; a matter is urgent, if
at the time the need to act arises, the matter cannot wait. Urgency which stems
from a deliberate or careless abstention from action until the dead-line draws
near is not the type of urgency contemplated by the rules. It necessarily
follows that the certificate of urgency or the supporting affidavit must always
contain an explanation of the non-timeous action if there has been any delay.”
When Nhuta had registered the arbitral award
with this court in September 2012 it must have become obvious to the applicants
that his next step would be execution. Indeed he executed. Therefore when the
Finance No 2 Act was promulgated in 2012, and if the applicants should have
thought that the legislation applied to them, they would necessarily have had
to act then. They would have applied that their assets be declared exempt from
attachment. They did not. And neither the certificate of urgency nor the
founding affidavit explains this delay. Instead there has been an attempt to
mislead. It was concealed from the application that the parties had entered
into some payment arrangement. What then triggered the urgent application was
not the re-attachment of the assets in April 2013, but rather Air Zimbabwe
Holding's own default of the agreed payment arrangement.
In Kuvarega's case above the delay between the
need to act and when the application was eventually filed was some 8 days. The
court said that there had been no explanation until the very last working day
of the day of reckoning. In casu, even if I were to accept the
applicants' contention that the need to act had arisen only in April 2013 when
the re-attachment happened, and not in December 2012 when the Finance No 2 Act
came into being, there is still the problem that the applicants' deponent has
not been truthful in the founding affidavit on yet another point. It was false
to say that the re-attachment was on 13 April 2013. Actually the first attempt
at re-attachment had been on Air Zimbabwe. That had been on 10 April 2013.
Apparently Air Zimbabwe had flagged the Finance No 2 Act to the deputy sheriff.
The Deputy Sheriff had retreated. But he had then come back for Air Zimbabwe
Holdings. That had been on 12 April 2013. All this is borne by the deputy
sheriff's returns which were attached to Nhuta's opposing papers. In the
founding papers no explanation was given why such precious time was wasted and
why action was taken only some 12 days later, and on the very day of reckoning.
During argument counsel for the applicants proffered the
explanation that the applicants are large corporations and that it was not
feasible to assemble their boards to pass the necessary resolutions. This is
unacceptable. Applicants had been seized with Nhuta's litigation since 2010.
Furthermore, attached to the applicants' founding papers was an extract of a
resolution by Air Zimbabwe on 13 November 2012, among other things, authorising
the deponent to sign all legal documents and to do any legal acts on its behalf
to safeguard its interests in the dispute between Air Zimbabwe Holdings and
Nhuta. If Air Zimbabwe had felt that it was its assets that had been
re-attached as was contended why did it wait?
Applicants' counsel dismissed Kuvarega's case on
the basis that it was wrongly decided. I did not agree. Kuvarega has
withstood the test of time. It was decided in 1998. It has been referred to
with approval in several subsequent cases. I was satisfied that there was no
urgency in the matter and that if there was any, it was demonstrably
self-created.
I also dismissed the application for lack of merit. Section
8 [1] of the Finance No 2 Act which was published under General Notice 613/12
on 28 December 2012 inserted a new s 9A into the Repeal Act. The new section
reads:
“9A Legal
proceedings against Corporation or successor company
“The State Liabilities Act [Chapter 8: 14] applies with necessary changes to legal
proceedings against the Corporation or any successor company.”
Sub-section [2] of s 8 of the Finance No 2 Act then reads
as follows:
“(2)Subject to subsection
(3), the amendment effected by subsection (1) applies to all legal proceedings
against the Corporation or successor company (as those terms are defined in
section 2 of the Air Zimbabwe Corporation (Repeal) Act (No. 4 of 1998)), that
were commenced or completed before the date of commencement of this Act.”
In terms of the State Liabilities Act, [Cap 8: 14],
state property is immune from attachment and execution. Therefore, by the
aforesaid amendment the same immunity was being extended to the property of the
Air Zimbabwe Corporation [hereafter referred to as “the Corporation”]
or any successor company. By virtue of subsection [3] of the Finance No 2 Act
that immunity is to last until 1 January 2015.
The crux of the matter before me in the urgent chamber
application was whether it was correct that any company
formed by “… the shareholder or board of the National Airline,” as it
was put to me, would automatically enjoy the same immunity provided by the amendment
above. Furthermore, was Air Zimbabwe Holdings, not Air Zimbabwe, also such a
successor company to the Corporation as would enjoy the same immunity?
I do not accept that it was the intention of the
legislature to extend such immunity to an indeterminate number of companies
some shareholders or board somewhere could think of floating. I do not see the
provisions of the amending section aforesaid as granting the power to anybody,
let alone some shareholder or board of directors somewhere, to create a successor
company, let alone several of them, to the defunct Corporation. The words used
in the amendment are “… or any successor company”. The word “company”
is used in the singular. I do not accept applicants' argument that the use of
the pronoun “any” before the noun “company” transformed the
word “company” from the singular to “companies” in the
plural. A reading of the whole amendment leaves me in no doubt that it was
intended to refer to one successor company. If it was meant to refer to more
than one company, the legislature could have easily used plurals so that that
portion of the amendment would have read “… or all
successor companies”, or “… or any of
the successor companies”.
The Oxford Advanced Learner's Dictionary shows that the
pronoun “any” can be used not only with uncountable or plural nouns to
refer to an amount or number of something however large or small but also with singular
countable nouns to refer to one of a number of things or of people when it does
not matter which one [my emphasis]. I am satisfied that given the wording
of that amendment the use of “any” was meant to refer to a singular
countable noun, i.e. “company”.
A reading of the Repeal Act as a whole militates against
the construction that more than one successor company to the Corporation was
envisaged. For example, in terms of s 5 the Minister is empowered to transfer
the assets and liabilities of the Corporation to the successor company. In
terms of the other sections, the successor company inherits the rights and
obligations of the Corporation, including contracts of employment in terms of s
8. If it was meant to refer to more than one successor company it would mean
that any person against whom the Corporation had any cause of action could be
faced with an indeterminate number of suits from an indeterminate number of
creditors all claiming to be successor companies. Likewise, a creditor of the
former Corporation could be placed in the same dilemma of determining the
particular successor company that would have to meet his or her claim. Such an
absurdity was obviously never intended.
The matter does not end there. The power to declare a
successor company to the defunct Corporation in terms of the Repeal Act was not
given to all and sundry. It was not given even to the shareholders or board of
that defunct entity. The power is that of government through the minister of
transport. The Repeal Act defines “successor company” as the
company referred to in section three. Section 3 reads:
“3 Formation of successor
company
“Subject to this section,
the Minister shall take steps as are necessary under the Companies Act [Cap
24:03] to secure the formation of a
company limited by shares, which
shall be the successor company to the Corporation for the purposes of this Act;
Provided that, if such a company has been
incorporated for the purpose before the date of commencement of this Act, the
Minister may, by notice to the Corporation, direct that that company shall be the successor company
to the Corporation for the purposes of this Act” [my
emphasis].
The preamble to the Act gives the purpose of the Act as
being to provide for the dissolution of the Air Zimbabwe Corporation and the
transfer of its functions, assets, liabilities and staff to a
company formed for the purpose. Plainly, such wording, by itself,
does not admit of more than one company all being successor companies to the
defunct Corporation.
The matter goes further. The proviso to s 3 of the Repeal Act envisaged that
the company that the Minister could nominate or direct as being the successor
company could be one already in existence prior to the Act. Thus if the
Minister did not want to form a new company he had a choice to nominate a
pre-existing one. Air Zimbabwe was already in existence when the Repeal Act became
law. The Form C. R. 14 attached to Nhuta's papers showed that it was
incorporated sometime in 1997. In the judgment by KUDYA J in Jayesh Shah vAir
Zimbabwe Corporation HH133-10 it was noted that Air Zimbabwe was
incorporated on 20 November 1997. It was held in that judgment that Air
Zimbabwe was the successor company to the former Corporation. This the Minister
did by means of a legal instrument, namely General Notice No 120A/2000.
On the other hand Air Zimbabwe Holdings appears to have
been formed sometime in 2005 according to the C. R. 14 to Nhuta's papers. Other
than a declaration from the bar by applicants' counsel that Air Zimbabwe
Holdings was formed by the Minister also as a successor company to the
Corporation nothing was presented before me to this effect. On the
contrary we have the legislation analysed above and the judgment of this court
aforesaid both militating against such a construction. In the premises I
rejected the contention that Air Zimbabwe Holdings was a successor company to the
Corporation.
There is one more point. Applicants alleged that the
attached assets did not belong to Air Zimbabwe Holdings against which Nhuta had
a judgment, but against Air Zimbabwe which not only was not indebted to Nhuta
but also the assets for which are immune from attachment. But not a shred of
evidence was placed before me that the assets belonged to Air Zimbabwe. During
argument it was contended from the bar that the evidence of ownership was in
the interpleader proceedings. It will be remembered that until I had requested
a copy of the pleadings in those proceedings, none had been placed before me.
No case reference number had been given. Nonetheless, having perused those
papers I find that Air Zimbabwe laid claim to 20 out 29 of the attached
vehicles and to 1 motor cycle. As proof of ownership of those vehicles some
registration books were copied and attached. From those registration books
about six of the vehicles were in the name of “Air Zimbabwe Corporation”
which could be either or both of the applicants according to their argument
that both are successor companies. The rest of the vehicles were in the name of
“Air Zimbabwe” which again could mean either or both of the
applicants. At any rate emblazoned on every registration book was a “WARNING”
that read “This registration book is not proof of legal
ownership” [my emphasis].
At the end of the day I was satisfied that the urgent
chamber application was an abuse of the court process. I therefore dismissed it
with costs.
Mutumbwa Mugabe & Partners,applicants' legal practitioners
Matsikidze
& Muchenje,first respondent's legal practitioners
