KAMOCHA J: On 8 December 2011 an order was granted by this court placing Merlin
(Private) Limited under provisional management. Cecil Madondo of Tudor
House Consultants (Private) Limited was appointed the provisional judicial
manager of Merlin (Private) Limited with powers and duties set out in section
303 of the Companies Act [Chapter 24:03].
On 4 July 2012 Maydeep Investments (Pvt) Ltd sought and was granted a provisional
order whose interim relief interdicted Cecil Madondo from being confirmed as
the judicial manager of Merlin (Pvt) Ltd.
In its opposition to the appointment of Cecil Madondo as the final judicial
manager Maydeep Investments inter alia said this:-
“Without casting aspersions on
the probity and standing of the 1st respondent it is a regrettable
but undeniable fact that the 1st respondent is being investigated on
allegations of dishonesty in an estate of the late Mr Njozi the 1st
respondent was administering.
A judicial manager's conduct,
like that of Caesar's wife, must be beyond reproach or suspicion.
There may well be no substance
to allegations made against the 1st respondent but it would be best
that he be cleared of the allegations first, before he can assume functions of
judicial manager.”
The above allegations were palpably false. When Cecil Madondo refuted
them in the opposing affidavit Maydeep Investments did not file a replying
affidavit to the contrary. It is therefore taken as having accepted that
what Cecil Madondo said was the true position. Similarly it had been
alleged by Maydeep Investments that Cecil Madondo had contravened the
provisions of section 302 of the Companies Act by canvassing for his appointment.
That allegation also turned out to be false. Needless to say when Cecil
Madondo refuted it, it was not persisted
with. To sum
up on this issue, Maydeep Investments approached the court seeking a
provisional order on the basis of false allegations. When Cecil Madondo
pointed out that the allegations were false Maydeep Investments failed to
respond.
Not only did it fail to file a replying affidavit it also failed to set the
matter down for a hearing because it was content with the provisional relief
granted to it.
Further Maydeep Investments was unable to file its heads of argument
timeously. The first respondent served his heads of argument on the
applicant on 5 September 2012 while Zimbabwe Textile Workers Union served its
heads of argument on 1 October 2012. But the applicant only attempted to
do so a day before the hearing of the matter without condonation. It was
barred.
In the result this court then proceeded to deal with the matter on merits and
discharged the provisional order granted to the applicant under case number HC
2220/12 with costs on an attorney and client scale.
Messrs Majoko & Majoko
applicant's legal practitioners
Dazinger & Partners 1st
respondent's legal practitioners
Dube-Banda,
Nzarayapenga & Partners, 3rd
respondent's legal practitioners
