MAKONI
J: The applicant approached this court seeking interdictory relief
against the respondent.
The
applicant holds mining rights to a mining location called Elorado
Mine. It was incorporated on 29 May 2009 and the respondent and his
daughter, Chen Xiandong were the initial directors and subscribes who
held sixty and fourty ordinary shares respectively.
The
applicant's position is that the respondent, at a later stage took
on board one Charles Fredrick Jones and one Kennedy Piti who were
issued with 4900 and 200 ordinary shares respectively. In May 2012
the respondent and Jones sold their entire shareholding in the
applicant with Jones transferring his shareholding to one Tafirenyika
Kambarami and the respondent and his daughter transferring their
shareholding to Haixi Zhou, the deponent to the founding affidavit.
A new register of directors was lodged with the Registrar of
Companies wherein, the respondent, his daughter and Jones resigned as
directors. The respondent surrendered the company documents to the
new directors. He also, without the approval of applicant's board
of directors, lodged a fraudulent CR14 in which he appointed himself
as a director without authority from the applicant's directors,
withdrew a total of $32 800.00 from the applicant's bank account.
It is for the above reasons that the applicant seeks the interdictory
relief.
The
respondent's position is that he is a shareholder and a director of
the applicant. He owns 24.5% of the applicant just as the deponent
to the founding affidavit who owns 24.5%. He disputes that he at one
point issued shares to Jones. He puts in issue the signature that
appears on the allotment return. He did not sell his shares to Zhou
neither did he resign as a director of the applicant. He also avers
that he is the sole signatory to the applicant's bank account.
At
the hearing of the matter, Mr
Samukange
took two points in
limine
-
That
this court has no jurisdiction to hear the matter as the respondent
is a peregrinus.
-
That
there are material disputes of fact which cannot be resolved on the
papers.
I
will deal with the points in
limine
in seriatum.
Jurisdiction
Mr
Samukange
submitted that this court has no jurisdiction to hear this matter as
the respondent is a peregrinus.
The applicant had not made an application to attach the respondent's
property. It has also not tendered security of costs. He referred
the court to Hung
Yuen Wong and Ors
v Hsiao
Cheng Liu and Anor
HH380/13 and Chinongoma
v TDG
Logistics and Anor
2011 (1) ZLR 98H at 102.
Mr
Chisoko
conceded that the respondent is a
peregrinus
but argued that he had submitted to the jurisdiction of the court.
Furthermore, the subject matter at issue is within the jurisdiction
of the court.
The
above issue of where an incola
intends to sue a peregrinus
was dealt with by MATHONSI J in
Huny Yuen Wong & Ors v
HS
190 Cheng Liu and Anor HH380/13
at p 5 where he stated.
“….
our civil practise and procedure is clear that a person domiciled and
resident in a foreign country cannot be sued in this court as it does
not have jurisdiction over that person. For that reason there is
need for an attachment ad
fundandam jurisdictionem
of that person or his property in order to make him amenable to the
jurisdiction of the court. Such person or his property can only be
attached while he it is within the jurisdiction of the court and only
after the attachment order has been issued by the court.”
See
also Herbstein and Van Winsen, The
Civil Practice of the High Courts of South Africa 5th
Ed Vol 1 p 96.
The
object of attachment was clearly stated by the above authors on p97
when they stated
“Although
the main object of the attachment is to find or confirm jurisdiction,
a further object of the attachment is to furnish an asset against
which execution can be levied to satisfy the judgement which may be
given so that the courts sentence will not be rendered nugatory or,
as it has been called abrutum
fulmen.”
From
the above, it is clear that where an incola
intends to sue a
peregrinus,
an attachment to find or confirm jurisdiction is necessary in order
to make the peregrinus
defendant
amenable to the jurisdiction of the court. Mr Chisoka,
whilst conceding that the defendant is a peregrinus,
he argued that he submitted himself to the jurisdiction of the court
by responding to the application.
Did
the respondent submit to the jurisdiction of the court? Submission
to jurisdiction can take many forms which can run from a formal
consent contained in a written contract to a consent from the bar.
The applicant is relying on implied consent. The authors Herbstein
and Van Winsen supra
at p110 state:
“A
submission to jurisdiction must be clear so as to establish it as a
legal certainty. Failure to defend legal proceedings instituted does
not necessarily constitute submission to the jurisdiction of the
court, nor can the fact that a defendant contested another issue, in
addition to the issue of jurisdiction, be construed as a clear tacit
acceptance by the defendants of the court's jurisdiction.”
In
casu,
the respondent filed a Notice of Opposition and Heads of Argument.
He did not contest the court's jurisdiction in those pleadings. It
is only on the day of hearing that the respondent raised the issue in
limine.
In
Mashinen
Grommer Gribtt & Co H.G.
v Trisave
Engineering Machinery Supplies (Pty) Ltd 2003
(6) SA 69(c) at 81 VAN REENEN J stated the following
“C.F.
Forsyth Private
International Law
3rd
Ed at 269 where he stated there are no decided cases in which
submission by conduct has been accepted or rejected as a means of
conferring international competence on a foreign court which it would
otherwise not possess. Taking guidance from matters of internal
competence, where submission by conduct is not readily inferred, but
it is required that the defendant's conduct “must be of such a
nature that the court is able to say that it is consistent only with
acquiescence” (per VIEYRA AJ in DuPreez
v Phillip
King
1963 (1) SA 80 1 (W) at 803 C) he submits that courts should exercise
caution and not find that there has been submission to jurisdiction
unless the parties have clearly accepted the foreign court's
jurisdiction, for example where a defendant pleads to the merits
without contesting a court's jurisdiction”
VAN
REENEN J at p 52 quoted CONRADIE J(as he then was) with approval in
Supercot
Incorporated
v Two
Oceans Marince
CC 2001 (4) SA 27 (c) at 32f where he stated that the enquiry into
whether there has been submission by conduct concerns defendant's
state of mind as evidenced by his/her/its conduct.
Looking
at the circumstances of this matter it is my view that the respondent
submitted to the jurisdiction of the court. In our jurisdiction we
have the procedural regime where a plea of lack of jurisdiction is
adjudicated upon
in limine prior
to the adjudication of the merits of the matter. If the respondent
did not intend to submit to the jurisdiction of the court he would
have raised the issue in
limine
in his Notice of Opposition. His conduct, in
casu,
clearly points to a person who had no intention, whatsoever, to
contest the jurisdiction of the court. It came as after thought.
After he had pleaded to the merits of the matter.
I
will therefore make a finding that the court has jurisdiction in this
matter
Material
disputes of facts.
From
the way 1 outlined the facts of this matter at the onset, it is clear
that there are material disputes of facts. The versions of the
parties as to the events in this matter are so divergent that this
court cannot reconcile them on the papers. Both deponents to the
affidavits in this matter aver that they are the shareholders and
directors of the applicant. They both produce share certificates are
fake and allege that the other share certificates. The deponent to
the founding affidavit avers that he purchased the respondent's
shares. There is no agreement attached.
Mr
Chisoko
did not make any meaningful submissions on this issue. It is clear
that there are material disputes of fact which cannot be resolved on
the papers. The respondent applied for the application to be
dismissed on that basis. It must have been clear to the applicant
that there is a “bona fide and not mere illusion dispute of fact”.
See Zimbabwe
Bonded Fibre Glass (Pvt) Ltd
v Peech
1987 (2) ZLR 338 (S) at 339C. The same approach was adopted in
Mashingaidze
v
Mashingaidze
1995 (1) ZLR 219 @ 221 G-22A where Robinson J (as he then was) stated
“It
is necessary to discourage the too-oft recurring practice whereby
applicants who I know or should know as was the case with the
applicant in this matter, that real and substantial disputes of fact
will or are likely to arise on the papers, nevertheless resort to
application proceedings on the basis, that at the worst, they can
count on the court to stand over the matter for trial.
Unless
this practice is seen to be curbed, applicant will continue to
believe that there have nothing to lose and everything to gain
tactically by embarking upon application proceedings not withstanding
their knowledge or belief at the time of doing so that the respondent
will not be able to show that genuine and serious dispute of fact
exist on the papers.”
I
will have no difficulty in dismissing the application.
I
will grant the point in
limine and
proceed to grant the following order.
It
is ordered that
-
The
application is dismissed.
-
The
applicant to pay the respondent's costs.
Tamuka
Moyo Attorneys,
applicant's legal practitioners
Messrs
Chibune & Associates,
respondent's legal practitioners
