On 5
April 2012, the respondents, under an ex parte application
in case number HC3694/12, were granted an Anton Pillar provisional order by
this court. The terms of the interim relief were:
“2. Respondent,
its officials assigns, or agents on whom service is effected in terms of this
order is ordered to allow the Deputy Sheriff, Mr Charles Chinyama (the
Supervising Attorney) together with Mr Jonathan Samkange
or failing him Mr Everson Samkange, the
Applicant's Attorney including the applicant's officials to immediately enter
the premises listed in paragraph 11 in the Founding Affidavit and any
facilities and/or vehicles on such premises for the purposes of searching for
and delivering into the Deputy Sheriff all the share certificates and any such
documents listed in paragraph 5 of the Founding Affidavit and Annexure “A” and
such documents which any of the aforementioned persons reasonably believe to
relate to the Applicant.
3.
Respondents, its officials, assigns or agents on whom service is effected in
terms of this order is further ordered to permit the said persons to remain on
the premises until the search is completed and if necessary to re-enter the
premises on the same or following day to complete the search.
4. The
Supervising Attorney mentioned in paragraph 2 above, together with the Deputy
Sheriff, shall make a list of the recovered and removed share certificates in
terms of this order. A copy of this list shall be handed by the Supervising
Attorney to the Applicant's Attorney and to the 1st Respondent or
any such officials representing the 1st Respondent referred to in
paragraph 2 and 3 above. If present, and a copy shall be retained by the
Deputy Sheriff.
5. In
the event any of the said share certificates or relevant documentation exist in
computer readable form, Respondent and its official is ordered to forthwith
provide the Deputy Sheriff with effect access to the computers and all
necessary password to enable them to be searched and cause the listed items to
be printed out, a printout of these items is to be given to the Deputy Sheriff
or displayed on the computer screen so that it may be read and copied by him.
6. The
listed items taken into possession by the Deputy Sheriff pursuant to this order
shall be retained by him until the court orders otherwise. Save as provided
hereinafter, no person shall be entitled to inspect any of the items taken into
possession by the Deputy Sheriff nor shall any copies of such documents be
made. Provided that pending the return day for the sole purpose of satisfying
himself that the inventory correctly reflects the items seized. 1st
Respondents and his Attorney shall be entitled to inspect the items in the
Deputy Sheriff's possession.
7.
Applicant is directed to serve the court application in case number HC3624/12
on the Respondents within ten days from the date of this order and if it fails,
without good reasons being shown on the return day to have filed and served
such application by that date, the Sheriff shall return all the items
immediately to 1st Respondent and in such event the Court, in its
discretion, shall make such order as it deems fit.
8. On
the return day there shall be placed before the Court the report of the
Supervising Attorney with proof that a copy thereof has been served on the
Applicant's Attorney and on 1st Respondent or their Attorney and an
Affidavit of the Applicants Attorney that the said action has been duly
instituted and if not the reason why this has not been done.
9. (a)
Service of this order, together with the Notice on the 1st
Respondent or the person responsible for the premises shall be effected and the
content thereof shall be explained by the Supervising Attorney before the
provisions of paragraph 2 are carried out.
(b) In
addition to the served referred to in sub paragraph (a) above service of the
order, together with the Notice of Motion, supporting affidavits and
accompanying Notice to Respondent shall be effected by the Deputy Sheriff in
accordance with the rules of the court no later than 48 hours after the
Supervising Attorney has directed that the search is finished.
(c) The
provisions of paragraph 2 and 3 of this order may only be carried out in the
presence and under the supervision of the Supervising Attorney.
10.
Pending the finalisation of the Applicant's claim against the Respondents in
case number HC3624/12, the 1st Respondent be and is hereby barred
and interdicted from destroying, concealing in any way, cause to be shipped or
flown out any of the documents relating to share and certificates belonging to
the Applicant.”
On 3rd
May 2012, the provisional order was amended as follows:-
“The
Provisional Order granted on the 5th of April 2012 is hereby amended
by;
(i)
Deleting on paragraph 2 line 5, paragraph 10 - and substituting it with
paragraph 11; and
(ii)
Adding on paragraph 2, the list of the companies and premises to be searched as
follows;
Interfin
Securities – 38 McChlery Avenue, Eastlea, Harare;
Corpserve
Private Limited – 2nd Floor, ZB Centre, Corner Kwame Nkrumah
Avenue/First Street (formerly UDC Centre), Harare;
Kingdom
Stockbrokers (Pvt) Ltd – 4th Floor Karigamombe Centre, Julies
Nyerere Way/Samora Machel Avenue, Harare;
Platinum
Asset Management – 1st Floor, 5 Central Avenue, Harare;
Stanbic
Bank Zimbabwe Custodial – 59 Samora Machel Avenue, Harare;
Barclays
Bank Zimbabwe Custodial – Birmingham Road, Harare; and any other such addresses
to which Applicant's shares or subsequent shares are reasonably believed to be
kept or hidden.”
The
above amendment was necessitated by a failure on the part of the Deputy Sheriff
to execute the order on the applicants.
The
background to the above order is that on a date, not indicated in these papers,
the respondent obtained a loan from Interfin Securities (Pvt) Ltd and pledged
its shares as security. The respondent repaid the loan in full and then
demanded the return, from Interfin Securities (Pvt) Ltd, of its shares and
certificates.
The
shares and certificates were not returned.
The
respondent then filed an urgent ex parte application.
The result was the above provisional order granted by this court. The Deputy
Sheriff was then instructed to execute the order against those holding the
shares and certificates. An attempt to execute on the applicants failed because
the applicants argued that the order was not binding on them since they were
not cited in the ex parte urgent application.
That development led to this application wherein the applicants seek a
declaratory order in the following terms:
“IT IS
ORDERED:
1. That
the Provisional Order issued on the 5th April 2012 as well as the
Amended Provisional Order issued by this Honourable Court on the 9th
May 2012 under Case no. HC36894/12 are not binding on the 1st and 2nd
Applicants.
2. That
the Respondent shall pay the costs of this application.”
The
parties to the exparte urgent application
appear on the provisional order. They do not include the applicants. However,
paragraph 2 of the order makes reference to the Founding Affidavit in HC3694/12
– wherein in paragraph 11 of the said affidavit the following entities are
listed:-
“(i)
Interfin Securities – 38 McChlery Avenue, Eastlea, Harare;
(ii)
Corpserve Private Limited – 2nd Floor, ZB Centre, Corner Kwame
Nkrumah Avenue/First Street (formerly UDC Centre), Harare;
(iii)
Kingdom Stockbrokers (Pvt) Ltd – 4th Floor Karigamombe Centre,
Julies Nyerere Way/Samora Machel Avenue, Harare;
(iv)
Platinum Asset Management – 1st Floor, 5 Central Avenue, Harare;
(v)
Stanbic Bank Zimbabwe Custodial – 59 Samora Machel Avenue, Harare;
(vi)
Barclays Bank Zimbabwe Custodial – Birmingham Road, Harare; and any other such
addresses to which Applicant's shares or subsequent shares are reasonably
believed to be kept or hidden.”
The
amendment of the Provisional Order on 3 May 2012 was meant to incorporate the
above-listed entities. However, that incorporation did not amend the parties to
the application. The parties remained as they were in the ex parte application.
In its
opposing affidavit, the respondent, in part, states:
“1. Relief sought incompetent
Applicants
are seeking to review or appeal the provisional order in case no. HC3694/12 by
applying for a declaratory order. The provisional order complained of
categorically authorised the Deputy Sheriff to enter certain premises which included
Applicants' premises. What Applicants are seeking now is to have the
provisional order varied through a declaratory order. This is incompetent.
Applicants are seeking this same court to review its own order and the
application should fail on this basis alone.
2. Applicants have dirty hands
Applicants'
conduct is contemptuous and unethical. A litigant who defies a court order
cannot be heard until they have complied with what the order says. Applicants
deliberately, in a bid to defeat the provisional order, caused the transfer of
Old Mutual shares, through Corpserve (Private) Limited, to a South African
Company, Peregrinne (Pty) Ltd, and which shares were deposited with Kantor and
Immerman on 16th May 2012.
More
fundamentally, the Respondent sought amendment to the order specifically to
cover the Applicants and it was this amendment which Applicant evaded. This
conduct is unlawful and defeats the integrity of court orders. Applicants
should therefore be denied audience until they comply with the court order.
15.
Applicants have ignored free legal counsel. Applicants, though their legal
practitioners of record, were hinted to make an application for joinder which
application would not be opposed. The Applicants did not do so. It was not only
legally impossible, but it is also a practical falsity to believe that all the
depositories of the Respondent's shares could be cited with precision. The
volatile nature of shares was also taken into account by His Lordship in
granting the order in HC3694/12. This application is an attempt by the
Applicants to cover up for their disobedience of a valid court order. The court
should proceed to deny Applicants audience until such time as they purge their
contempt.”
According
to the respondent, at the time of the hearing of this matter, the shares were
no longer in the custody of the applicants and hence the submission that “the
declaratory order sought is of an academic interest to the applicants and no
more than that.”
The
respondent, relying on Ngulube v
Zimbabwe Electricity Supply Authority and Others SC52-02
correctly spelt out the requirements for a declaratory order as follows:
“1. The
applicant had to have an interest in an “existing, future, or contingent right
or obligation;
2. The
interest must not be an academic or abstract one;
3.
There must be an interested person on whom the declaratory order would be
binding;
4. The
remedy is available at the discretion of the court and the applicant must
satisfy the court that the case was a proper one.”
The
respondent went further to submit that;
“12.
Applicants did not comply with the order which required the search and seizure
of shares and share certificates. Respondent, notwithstanding Applicants'
disobedience of the order, have sought a confirmation of the court order from
this Honourable Court. Applicants have disposed of the shares to a third party
and there is nothing to be retrieved from them. Applicants defeated the court
order.
13. It
is submitted that the relief of a declaratory order is espoused in the various
court cases, is not available for parties seeking to make an academic or
intellectual point. There must be some justifiable advantage. See in this
regard Barron v Greendale Town Management Board 1957 (2) SA 521 (SR);
Musara v Zinatha 1992 (1) ZLR…, (H); and Lupu v
Lupu
2000 (1) ZLR 120 (SC).”
The
respondent prayed for the dismissal of the application with costs on an
attorney – client scale.
On
their part, the applicants justified their case by relying on Section 14 of the
High Court Act [Chaper 7:06] which provides as follows;
“The
High Court may, in its discretion, at the insistence of any interest person,
inquire into and determine any existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon such determination.”
The
applicants' position was that they were not obliged to obey an order in which
they were not cited. All they wanted was for the court to make a determination
on whether or not the order granted to the respondent was binding on them when
they were not cited as parties in the matter. The applicants submitted, in
part, that:-
“10. From
the foregoing, it is clear that the court order obtained by the Respondent in
this matter was an order ad factum praestundum;
that is an order to do, abstain from doing a particular act or deliver a thing,“(See
HERBSTEIN and VAN WINSEN, the Civil Practice of the Superior Courts in South
Africa 3ed p653. Such an order, by its nature, can only be enforced against the
particular Respondent named in the court order and by no way can be construed
as an order affecting status and therefore an order or judgment in rem.
11. In
view of the foregoing, it would have been, therefore, imperative, in order for
the Applicants to be bound by the orders obtained and sought to be enforced
against them that they be cited therein. The failure to cite the Applicants
clearly means that the order obtained cannot be enforced against them. In Rodgers and Ors v Muller and Ors 2010
(1) ZLR 49 (H) this court ruled that Rule 87(1) of the High Court of Zimbabwe
Rules 1971 did not absolve a litigant of the obligation to cite all the
relevant parties. Patel J at 53B – C stated as follows:-
'The discretion of the court in this regard must be exercised so as to
ensure that all person who might be affected by its determination of the issues
in dispute be afforded the opportunity to be heard before that determination is
actually made.'
The
court therefore held in the matter that the failure to cite the relevant Minister
was a fatal defect and the application in that matter should be dismissed
simply on the basis of that preliminary issue.”
In
essence, the applicants contend that there was no order to comply with and as
such the issue of approaching the court with dirty hands does not come into
play. The applicants neither deny nor confirm whether or not the certificates
and shares are still in their custody. That, in any case, would be irrelevant
to them, since, in the absence of a court order, they could deal with the shares
and certificate without hinderance.
In the headnote to Cooper v Leslie and Ors
2000 (1) ZLR 14 (H) the following
appears;
“An Anton Piller Order is a modern legal remedy devised to
cater for modern problems in the prosecution of civil actions. The procedure
allows a party to make an ex parte application,
without notice to the other side, for the attachment and removal of documents
or other evidence. It has its genesis in English Law. Originally, its use was
confined to cases involving intellectual property,
but has since been extended to cover other civil cases. It has, after some
initial reluctance and some contradictory judgments, been accepted by the
courts of South Africa and should be accepted as part of the law of Zimbabwe.
An
applicant for an Anton Piller Order must prima facie establish:
1. That
he has a cause of action against the respondent which he intends to
pursue;
2. That
the respondent has, in his possession, specific and specified documents
or things which constitute vital evidence in substantiation of the applicant's
cause of action but in respect of which the applicant cannot claim a
real or personal right; and
3. That
there is a real and well-founded apprehension that this evidence may be hidden
or destroyed or in some manner spirited away by the time the case comes to
trial or to the stage of discovery.
The
remedy may, if used indiscriminately, become an instrument of oppression, so
the court must proceed with caution and impose safeguards to protect the rights
of the party against whom the relief is sought. In exercising its discretion,
the court must pay regard to the cogency of the prima facie
case established with reference to the three items listed above; the potential
harm that will be suffered by the respondent if
the order is granted as compared to the potential harm to the applicant if is
not; and whether the terms of the order sought are no more onerous than is
necessary to protect the interests of the applicant.”…,.
In his
judgment in Cooper v Leslie and Ors 2000 (1) ZLR 14 (H), DEVITTE J notes:
1.
“There are two respects in which an Anton Piller Order is
unusual. Firstly, it is akin to a search warrant in that the plaintiff and his
attorneys are authorised to enter the respondent's premises and to
inspect them or remove documents or other goods. Secondly, no prior notice is
given to the respondent.”…,.
From
the above, it is, in my view, quite clear that the Anton Piller
Order should be directed to a specific respondent to whom notice is
being denied until the search is effected. That is what brings the need for the
court “to proceed with caution and impose safeguards to protect the rights of
the party against whom the relief is sought.” Surely such a party (respondent)
must be known and it can only be known through citation as a party to the
proceeding(s).
The
respondent in casu, as contained in its founding affidavit,
knew who it wanted to proceed against but decided to bring into the body of the
order the “parties to be searched.” The respondent knew that the premises'
belonged to the applicants (see paragraph 1 of the opposing
affidavit quoted herein….,.).
I am unable to accept that that was the citation expected by the applicants and
envisaged in law. I am certain that, prior to the amendment, the respondent
knew what the applicants wanted as reflected in one its letters.
On
3 May 2012, the respondent's legal practitioners wrote to Hungwe J in the
following terms:
“At the
hearing of the urgent application held on the 4th of April 2012, our
Mr Samkange advised your Lordship that an application to amend the Anton Pillar
Order had been made before Justice Patel. Justice Patel had issued the original
Provisional Anton Pillar Order. It has not been amended. A copy of the Amended
Provisional Order is attached hereto.
Our
appreciation of the Applicant complained against the original order is that they
had not been cited in the Provisional Order. This has since been rectified.
1.
Consequently, the basis of the complaint has since been attended to by the
amendment. We are copying this letter to all the parties affected.”…,.
