BHUNU J: The applicant's claim is for a provisional order
seeking repossession of, equipment and motor vehicles valued at US$1 558 068,
53 and US$96 000.00 respectively. Its cause of action is based on breach of
contract on account of the first respondent's failure to pay the purchase price
for the property sold in terms of the agreement of sale.
The second and third respondents are directors in first
respondent company whereas the forth respondent is leasing the property in
question. It is the applicant's case that the 1st respondent has
demonstrated incapacity to pay. For that reason it is now claiming repossession
of the property sold in terms of a material term of the contract which provides
for repossession of the property sold in the event of breach.
The order sought is meant to protect the subject of
the dispute pending the determination of its claim against the respondents in
case number HC 2111/ 13. While the respondents admit to entering into some
contractual arrangement with the applicant they challenge its validity on the
grounds of illegality.
Considering that it is not in dispute that the applicant
sourced the property and handed it over to the 1st respondent and it
has not been paid anything, it can safely be inferred that the applicant has
established that it is the owner of the property though the validity of the
contact of sale is subject to debate. For that reason the applicant has a real
and substantial interest in the preservation of the property in question.
On the other hand despite proven refusal incapacity to pay
or compensate the applicant in the event of loss the respondents have simply
fastened onto their unsubstantiated defence of illegality to justify their
continued use of the property without paying for it to the loss and prejudice
of the applicant.
The applicant's claim falls within the class of interdicts
known as anti-dissipation interdicts which translates into a prohibitory
interdict. All what the applicant has to prove in order to succeed is that it
has a prima facie case as observed by CHATIKOBO J in Bozimo Trade
& Development Co. P/L vmerchant Bank of Zimbabwe & Ors 2000
(1) ZLR 1 (H). On the papers before me Iam satisfied that the
applicant has on the face of it discharged the onus on a balance of
probabilities. It is clear that the applicant is the source of the property in
dispute. It has not been paid anything for the use of the property. In the
absence of a clear demonstration of the capacity to pay compensation the
respondents' continued use of the property without payment of either the
purchase price or rentals is likely to lead to irretrievable prejudice to the
applicant in the event that they lose in the main case.
While I am mindful that granting the order sought will
inevitably lead to loss of business and employment that alone cannot justify
the irreparable prejudice the applicant stands to suffer in the event that the
respondents lose the main case. Had the respondent supplied security to cover
the applicant against the severe prejudice it stands to suffer in the event
that the respondents lose the main case I would have been inclined to let the
respondents continue to use the property with the knowledge that the applicant
will not suffer prejudice regardless of the outcome in the main case. The
respondents' failure to provide such security leaves me with no option but to
grant the relief sought. It does not seem to matter to me whether the dispute
is about ownership of property or shares. The bottom line is that the
property in question must be preserved pending the resolution of the parties'
dispute by the courts.
The applicant is accordingly granted interim relief in the
following terms:
1. That pending the final
determination of this matter the respondents shall deliver all the machinery/
equipment set out in annexure “A” to the Applicant's Founding affidavit, and
the motor vehicles (i.e. black Isuzu, white Isuzu and a Lupo) to the Deputy
Sheriff of Zimbabwe, Harare within forty-eight (4) hours of service of this
Order, failing which the Sheriff of Zimbabwe or his lawful Deputy, with the
assistance of the Commissioner General of Police, and each and every member of
the Zimbabwe Republic Police shall be authorized and empowered and ordered to
give effect to this order.
2. That the machinery/
equipment and the motor vehicles specified in para (1) above shall be parked or
stored at the premises of the Ruby Auctions (Harare) or the Vehicle Inspection
Depot, Harare under the control or supervision of the Sheriff of Zimbabwe or
his lawful Deputy, until the final determination of this case.
Chihambakwe Mutizwa & Partners, applicant's legal
practitioners.
Wintertons,1st, 2nd, and 3rd
respondents' legal practitioners.
Ngundu
and Dube, 4th respondent's legal practitioners.
