This is an urgent chamber application for an interdict.
The facts, which are common cause, are as follows. Pursuant
to a labour dispute, the 2nd and 3rd respondents
instituted proceedings in the Magistrates” Court at Zvishavane seeking the
following relief;
(a) An order for eviction of the applicant and all those
claiming right through him from House Number F4B NIL Township, Zvishavane.
(b) In the event that the applicant refuses to vacate the
house after being served with the summons, or defends the action, an order for
payment of holding over damages calculated at the rate of $32= a month from
October 2011 to date of the defendant's removal.
(c) An order for payment of interest at the prescribed rate
of 5% per annum calculated from the date of the summons; and
(d) An order for costs of suit.
The applicant entered appearance to defend which prompted
the respondents to successfully apply for summary judgment.
Dissatisfied, the applicant appealed to this court under
case number HCA 49/15.
The first respondent wrote to the applicant's legal
practitioners on 15 July 2015 calling upon them to file heads of argument
within 15 days in terms of the Rules. The applicant's legal practitioners
complied and had their heads filed on 4 August 2015. Surprisingly, the first
respondent wrote to the applicant's legal practitioners on 20 August 2015
indicating that no heads of argument had been filed by that date and that the
appeal was deemed to be abandoned and dismissed. This notice was not served on
the applicant who only became aware of its existence on 22 October 2015 when
the fourth respondent came to execute the judgment.
The applicant's legal practitioners then confronted the
Registrar with a copy of their heads of argument date stamped 4 August 2015.
The Registrar's explanation was that the heads had been mis-filed by staff in
his office. Realising that the applicant's heads had been filed within the dies
induciae, his legal practitioners applied for reinstatement of the appeal on
this court's appeals roll. The application was made under case number HC
2901/15.
Notwithstanding the glaring error by the Registrar and its
dire consequences on the applicant's case, the second and third respondents
strenuously opposed the application for stay of execution pending the
determination of the applicant's application for reinstatement of the appeal.
The grounds of opposition, as advanced by counsel for the second and third
respondents can be summarised as follows:
(i) The applicant should have sought leave from the second
respondent to institute these proceedings as is required by section 6(b) of the
Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] (the
Act). She relied on the following cases;
(a) SMM v D. Mapimhidze HH144-15.
(b) SMM Holdings Ltd v Minister of Justice 2010 (1) ZLR 286
(S).
(ii) Applicant should have sought recourse with the Supreme
Court in terms of Order 31 Rule 42 of the Magistrates' Court Civil Rules.
(iii) Application is not urgent as applicant did not act
diligently in that he should have filed this application immediately after the
22nd of October 2015. The fact that he did so on the 5th
of November 2015 shows that the urgency is self-created.
On the merits, it was submitted that the applicant's
prospects of success are bleak in that he deserted employment and therefore has
no legal basis to remain in occupation of the house. It was further submitted
that he has alternative remedies one of which is to apply for terminal
benefits, if any. It was argued that the applicant will not suffer any
irreparable harm if evicted, since he has no right to occupy it in the first
place. Finally, it was submitted that the balance of convenience does not
favour the granting of the interdict as the third respondent will suffer while,
on the other hand, the third respondent can pay the applicant his terminal
benefits.
Counsel for the applicant submitted that the first point in
limine has no merit in that it was unnecessary to seek leave from the second
respondent because initial proceedings were initiated by the second and third
respondents in the Magistrates' Court. The decision was in their favour and the
applicant appealed. It is the appeal that led to this application. Therefore,
this application is simply a continuation of proceedings instituted in the
Magistrates' Court by the second and third respondents.
In my view, the need to seek leave in terms of the
Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] does
not apply where the Administrator himself institutes legal proceedings which,
for one reason or another, are not brought to finality. To ascribe such an
absurd meaning to the provisions of the Reconstruction of State-Indebted
Insolvent Companies Act [Chapter 24:27] would certainly result in grave
injustice. As stated by ZHOU J in SMM v D. Mapimhidze HH144-15, the purpose of section 6(b) of the
Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] is “to
ensure that its assets are not depleted by execution thereby frustrating the
purpose of reconstruction which is to enable the company to become a successful
concern in order to prevent loss of public funds and protect the interests of
creditors.” I would add that the purpose is not to enable the company to evade
litigation or extinguish claims or debts.
For this reason, I would dismiss the first point in limine….,.
The rules regarding the granting of an interdict are well
settled in our law. CORBETT J…, formulated the requirements of an interlocutory
interdict as follows:
“Briefly, these requisites are that the applicant for such
temporary relief must show –
(a) That the right which is the subject matter of the main
action and which he seeks to protect by means of an interim relief is clear or,
if not clear, is prima facie established, though open to some doubt;
(b) That if the right is only prima facie established,
there is a well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in establishing
his right;
(c) That the balance of convenience favours the granting of
interim relief; and
(d) That the applicant has no other remedy.”
See L F Boshoff Investments (Pvt) Ltd v Cape Town
Municipality 1969 (2) SA 256 (C )…,.
It is trite that the court has to decide, in its
discretion, whether or not to grant a temporary interdict. The court must be
satisfied that the applicant has proved an actual or well-grounded apprehension
of irreparable loss if no interdict is granted. It must also have regard to the
balance of convenience where only a prima facie ground for an interdict has
been established. An applicant who fails to cross this threshold cannot succeed
in his claim.
In Nyambi & Ors v Minister of Local Govt & Anor
2012 (1) ZLR 569 (H), ZHOU J listed the requirements for an interim interdict
as;
“(1) That the right which is sought to be protected is
clear; or
(2)(a) If it is not clear, it is prima facie established
though open to some doubt; and
(b) There is a well-grounded apprehension of irreparable
harm if interim relief is not granted and the applicant ultimately succeeds in
establishing his right;
(3) That the balance of convenience favours the granting of
interim relief; and
(4) The absence of any other satisfactory remedy.”
In casu, the applicant clearly has a prima facie right,
ex-contracto, not to be unlawfully evicted from the house. To suggest that he
has no right because he is occupying that house unlawfully as an ex-employee,
is, in my view, to put the cart before the horse. The crux of the matter is
that there is a labour dispute between the parties. The resolution of this
dispute will ultimately establish the legal relationship between the parties.
As regards irreparable harm, I take the view that it goes
without saying that if the applicant is evicted pending the determination of
the application for reinstatement of his appeal, he will suffer irreparable
harm in that the outcome will simply be of academic interest.
The balance of convenience favours the granting of the
relief.
The second and third respondents will not be unduly
prejudiced by the interim relief as the dispute relates to occupation and not
ownership rights. Once the labour dispute is resolved, the second and third
respondents will, if the outcome is in their favour, secure the house. If not,
they still may pay damages in lieu of reinstatement in order to secure
occupation. On the other hand, the status of the third respondent makes it
extremely difficult for the applicant to successfully recover damages.
On the facts, there is no other remedy available to the
applicant other than an order of stay of execution. The provisions of the Reconstruction of State
Indebted Insolvent Companies Act [Chapter 24:27], in particular section 6(c),
make it impossible for the applicant to attach the second and third
respondents' assets in execution. It states;
“Any attachment or execution put in force against the
assets of the company after the commencement of the reconstruction shall be
void;”
Put simply, the respondents may pay damages to the
applicant if they so chose but they cannot be compelled to do so - even by a
court of law. They enjoy the protection
of the provisions of the Reconstruction of State-Indebted Insolvent Companies
Act.
Accordingly, it is ordered that:
(1) 2nd, 3rd and 4th
respondents be and are hereby ordered to stay the execution of the judgment of
the Magistrates' Court under case number 558/14 pending the finalization of
this application.
(2) The provisional order, together with all
supporting documents, shall be served upon the respondents at their given
address forthwith.
