The
Liquidator, Dr. Wesley Simbi Sibanda, of the applicant company in the main case
of Amorose Investments (Private) Limited (in liquidation), is making an urgent
chamber application against the respondent company, Norwich Trading (Private) Limited
for an interim order in the following terms:
“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:-
1.
The assets listed in the attached schedule, Annex C, shall be delivered to the
liquidator of Applicant.
2.
Respondent shall pay the sum of US$31,000= together with interest a temporae morae
at the prescribed rate until the date of final payment.
3.
Respondent pays the costs.
INTERIM
RELIEF GRANTED
Pending
confirmation or discharge of the provisional order, the Applicant is granted
the following relief:
a)
The Sheriff or his authorised deputy is hereby empowered, directed and
ordered to take possession of Assets listed in the attached schedule, Annex C,
wherever they may be situate and deliver them to Spraytech (Private) Limited at
12 Nuffield Road Workington, Harare for safe custody.
SERVICE
OF THE PROVISIONAL ORDER
The
Provisional Order may be served by Applicant's legal practitioners or any
person in their employ or by Sheriff of the High Court.
…,.”
The assets
in question are alleged to belong to the applicant company.
At
the hearing of the application, on 4 June 2014, at 1430hrs, the respondent company
was in default, despite having been duly and properly served with the notice of
hearing.
Before
the court could hear any submissions from counsel for the applicant company, Mr
T R Mugabe who appeared with one Mr Mnaba made any oral submission that Mr
Mnaba be joined as a party to the proceedings. Mr T R Mugabe thus made an oral
application to have Mr Mnaba joined as a respondent, since, among other things,
Mr Mnaba is in physical possession of the assets in question, hence he has a
legal interest in the matter.
The
application to have Mr Mnaba joined as a party was opposed by counsel for the
applicant. Among other things, counsel for the applicant's contention was that
Mr Mnaba had no locus standi, and that if he
wanted to be joined as a party he has to make a formal application, and, if it
is granted, his side of the story can be heard when the provisional order
comes up for confirmation.
Applications
for joinder are done in terms of Order 13 Rule 85 to Rule 87 of the High Court
Rules, 1971. In particular, Rule 87 is very relevant. It says:-
“87.
Misjoinder or nonjoinder of parties
(1) No
cause or matter shall be defeated by reason of the misjoinder or nonjoinder of
any party and the court may, in any cause or matter, determine the issues or
questions in dispute so far as they affect the rights and interests of the
persons who are parties to the cause or matter.
(2)
At any stage of the proceedings, in any cause or matter, the court may, on such
terms as it thinks just, and either of its own motion or on application –
(a)
Order any person who has been improperly or unnecessarily made a party or
who has for any reason ceased to be a proper or necessary party, to cease to be
a party;
(b)
Order any person who ought to have been joined as a party or whose presence
before the court is necessary to ensure that all matters in dispute in the
cause or matter may be effectually and completely determined and adjudicated
upon, to be added as a party;
But,
no person shall be added as a plaintiff without his consent, signified in
writing, or in such other manner as may be authorised.
(3) A
court application by any person for an order under subrule (2) adding him as a
defendant, shall, except with the leave of the court, be supported by an
affidavit showing his interest in the matters in dispute in the cause or
matter.”
Rule
87(3) therefore specifically deals with the joinder of a defendant or
respondent as the case might be. Such an application has to be supported by an
affidavit showing the applicant's interest in the matters in dispute in the
cause or matter.
In
my view, and in terms of the Rules, the party that seeks to be joined as a
defendant or respondent, as the case might be ought to make a formal court
application, which shall be supported by an affidavit showing his or her
interests in the matters in dispute in the cause or matter.
I
feel that the oral submissions by Mr T R Mugabe are not sufficient for this
court to allow a joinder of Mr Mnaba at this stage.
Since
the main application by the Liquidator is not for a final order for disposal of
the assets in question, but for a temporary order for their safe-keeping
pending confirmation of the order, Mr Mnaba will not suffer any prejudice if an
order is granted in favour of the applicant company. Mr Mnaba can still be
joined as a party once a formal application has been made and granted.
In
the circumstances, the court is not inclined to allow a joinder of Mr Mnaba as
a party in the proceedings at this stage. While Mr Mnaba has been allowed to
express his interest in the matter, he is not properly before the court and
cannot be heard any further until his application for joinder has been granted.
The
oral application for joinder is therefore refused.
