GUVAVA JA: This is an appeal against the whole
judgment of the High Court dated 9 October 2013. At the hearing of the matter it was the view
of the court that the appeal lacked merit and it was dismissed with costs. We advised that the full reasons for our
decision would follow. These are they.
The appeal was pursuant to an order granted by the High Court
following the filing of an urgent chamber application in which the NJZ
Resources (HK) Limited (applicant in the court a quo and hereafter referred to as NJZ) sought an order that
certain items of machinery or equipment and motor vehicles which were in the
possession of Mine Mills Trading Private Limited (respondents in the court a quo and hereafter referred to as Mine
Mills Trading) be delivered to the Deputy Sheriff for safekeeping pending the
determination of a dispute between the parties.
The background to this matter may be summarised
as follows. Mine Mills Trading is a
limited liability company incorporated in Zimbabwe. Its address for service is No 206 Teresa
Close, Groombridge, Harare. The second
and third respondents are both directors of the company. The NJZ is a foreign limited liability
company incorporated in accordance with the laws of Hong Kong. Its address for service is 7 Lawson Avenue,
Milton Park, Harare Zimbabwe. In January
2010 and in Hong Kong the parties entered into an agreement whereby NJZ sold
and delivered machinery and equipment to Mine Mills Trading as well as
providing short term bridging finance loan. The total indebtedness of Mine
Mills Trading to NJZ was in the sum of US$ 1 558 068.53. It was an agreed term of their contract that
this amount was to be repaid in twelve equal monthly instalments. Mine Mills Trading was further given a
grace period of eight months before the payments
became due. It was alleged before the
court a quo that Mine Mills Trading
had failed or neglected to make the payments in accordance with their agreement.
NJZ thereafter instituted proceedings in
the High Court in case HC 2111/13 for the recovery of the machinery or equipment
and the motor vehicles from Mine Mills Trading.
The matter is pending before the High Court.
NJZ also instituted an urgent chamber application
before the High Court for an order to secure the machinery or equipment and the
motor vehicles from wear and tear and the possibility of an accident. At the hearing of the urgent application the
court a quo gave two judgments. The first judgment was issued by the court a quo on 29 May 2013 and related to a
number of preliminary points which had been raised by Mine Mills Trading. Following the judgment of the court a quo dismissing the preliminary points
the matter was set down for argument on the merits. Judgement on the merits was handed down on 9
October 2013. It provided as follows:
1. That pending the final determination of this
matter the respondents shall deliver all the machinery or equipment set out in
annexure “A” to 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 (48) 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 authorised and
empowered and ordered to give effect to
this order.
2. That
the machinery or equipment and the motor vehicles specified in para (1) above
shall be parked or stored at the premises of 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.
Mine Mills Trading filed
a Notice of Appeal on 11 October 2013 against the whole judgment that was
granted by the High Court on 9 October 2013. Mine Mills Trading set out eight
(8) grounds of appeal. The first five
grounds related to the preliminary points that were determined by the court a quo
on 29 May 2013. It was submitted by Mr Magwaliba that there was no requirement
for him to seek leave from the court a
quo to appeal against the interlocutory order. He submitted, firstly, that the judgment of
29 May 2013 was a mere ruling which was not appealable even with leave. He
relied on the case of Mwatsaka v ICL
Zimbabwe 1998 (1) ZLR 1. He opined
that on the basis of that judgment he could appeal against both the
interlocutory ruling and the judgment on the merits without seeking leave of
the court a quo. It was however the unanimous view of the Court
that the judgment of 29 May 2013 was not a ruling but a judgment and therefore could only be appealed against provided Mine Mills Trading complied
with s 43 of the High Court Act [Cap 7:06]. Section 43(2) which provides that:
“(2)
No appeal shall lie –
(d)
from an interlocutory order or interlocutory judgment made or given by a judge of the High
Court, without the leave of that judge or, if that has been refused, without
the leave of a judge of the Supreme Court, except in the following cases-
(i)
where
the liberty of the subject or custody of minors is concerned;
(ii) where an interdict is granted or refused
(iii)
in the case of an order on a special case stated under any law relating to
arbitration.”
As
no application for leave had been made to the court a quo and the case did not fall within the exceptions set out above
it was the view of the court that the submission was without merit.
It
was submitted by Mr Magwaliba that it
was not necessary to apply for leave from the court a quo because he was appealing against both judgments which were
made by the court a quo. However it was quite evident from the notice
of appeal that there was only a specific reference to an appeal against the
judgment of 9 October 2013.
We
were of the firm view that his argument could not be sustained as the Notice of
Appeal did not comply with r 29(1) (a) of the Supreme Court Rules, 1964. Rule 29 which provides that:
(1)
Every
civil appeal shall be instituted in the form of a notice of appeal signed by
the appellant or his legal representative, which shall state-
(a)
The
date on which , and the court by which, the judgment appealed against was
given;
(b)
If
leave to appeal was granted, the date of such grant;
(c)
Whether
the whole or part only of the judgment is appealed against;
(d)
The
grounds of appeal in accordance with the provisions of rule 32;
(e) The
exact nature of the relief which is sought
(f)
The
address for service of the appellant or his attorney.
In the case of Jensen v Acavalos 1993 (1)
ZLR 216 (s) at 220 A-B this Court held that a notice of appeal which does not
comply with the above rule is fatally defective and invalid. Mine Mills Trading stated in their notice of
appeal that it was appealing against the judgment of 9 October 2013. The
judgment of 29 May 2013 was not mentioned at all. If Mine Mills Trading had wished to appeal
against both judgments then it should have stated this in the notice of appeal.
It was for the above reasons that the
court ruled that the grounds of appeal relating to the judgment of 29 May 2013
were not properly before it and declined to hear argument in relation to
grounds 1 to 5. The court proceeded to
hear argument on grounds 6, 7 and 8 which were set out in the Notice of Appeal
as follows:
“6. The court a
quo erred in finding that the Respondent had established that it was the
owner of the property in dispute.
7. The
court a quo misdirected itself in
finding that the interdict sought by the Respondent fell within the class of
interdicts known as anti-dissipation.
8. Further, the court a quo misdirected itself in holding that the Respondent had
established the essential requirements for anti-dissipation interdict. The
court failed to exercise its discretion judiciously in that regard.”
Having failed on the arguments in the preliminary
issues Mr Magwaliba did not pursue
with any vigour the grounds set out above. Indeed he would have been hard
pressed to do so as the stance adopted by the court a quo was unassailable.
With regard to the ground that the court a quo had misdirected itself in finding
that NJZ was the owner of the property in dispute, an examination of the
judgment by the court a quo shows
that it did not make a finding that NJZ was the owner of the property. The court was alive to the fact that the
matter was to be determined in another case which was not before it. At p 2 of the cyclostyled judgment it was
stated as follows:
“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 any 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. “
With
regard to the seventh and eighth grounds that the court a quo erred by finding that the interdict sought fell into the
class of interdicts known as anti-dissipation and that the court had failed to
exercise its discretion judiciously it was our view that the reasoning of the
court a quo dealt effectively with
the point. These grounds, in our view,
could only be dealt with together. The
court a quo stated as follows:
“The applicant's
claim falls within the class of interdicts known as anti-dissipation interdicts
which translates into a prohibitory interdict. All what the applicants 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 v Merchant Bank of Zimbabwe & Ors 2000 (1) ZLR 1 (H) On the papers
before me I am satisfied that the applicant has on the face of it discharged
the onus on a balance of probabilities …”
The
above cited case highlighted that the requirements for an anti- dissipation
interdict are the same as those for a prohibitory interdict. The applicant must establish that it has a
prima facie right, even if open to doubt, that an infringement of such a right
is imminent, that it will suffer irreparable harm if the interim relief is not
granted, that there is no other satisfactory remedy and that the balance of
convenience favours the grant of such an interdict. It was our view that the acceptance that NJZ
had provided the funds for the purchase of the machinery or equipment and the motor
vehicles was sufficient to establish proof on a balance of probabilities that
it had a prima facie right to the property.
Although there was submission by Mine Mills Trading that all it owed was
money for the purchase of the property which now belonged to it, this issue is
obviously a point that is the subject of litigation currently before the court a quo.
It was also clear that the court a
quo was mindful of the fact that the grant of the order would lead to loss
of business and employment but was of the view that this could not justify the
irreparable prejudice that the applicants would suffer in the event that the
respondents were to lose in the main case.
Clearly the court a quo was
concerned with preserving the property so that the judgment of the main case
would not be a brutum fulman. Such an approach cannot be faulted as the
property is mining property and is subject to ordinary wear and tear. With regards to the motor vehicles it is not
beyond human experience that they could be involved in accidents. It was our view that the court a quo had exercised its discretion
properly as NJZ had established on the facts that there would it had a well-grounded apprehension that there
would be irreparable harm if the interdict was not granted. Mine mills Trading had already failed to make
any payments in terms of the agreement. There
was thus no other satisfactory remedy available to NJZ.
It
was for these reasons that this court came to the inescapable conclusion that the
appeal was devoid of merit and the balance of convenience favoured the grant of
the interdict.
The court made the following order:
The
appeal is hereby dismissed with costs.
MALABA DCJ: I agree
GOWORA JA: I agree
Wintertons, 1st, 2nd & 3rd
appellants' legal practitioners
Chihambakwe Mutizwa & Partners, respondent's legal practitioners
