BHUNU
J: The applicant leased stand 4624 Kelvin Road, Graniteside, Harare from the
first respondent. On 13 October 2010 and under Case Number HC 3292 the
respondent obtained the following order against the applicant company:
"IT IS ORDERED
THAT:
a)
The cancellation of the agreement in terms of which
plaintiff leased to defendant its property known as Stand 4624 being number 6
Kelvin Road, Graniteside, Harare be and is hereby confirmed.
b)
The defendant together with its subtenants, assignees,
invitees and all other persons claiming through it be and are directed to
vacate forthwith from the plaintiff's premises described in para (a) above.
c)
The defendant shall pay to the plaintiff the sum of
US$30 972-30.
d)
The defendant shall pay to holding over damages to the
plaintiff in the sum of US$10 862-10 per month from 1 April 2009 to the date of
the defendant's ejectment.
e)
The defendant shall pay the plaintiff's costs of suit
on the legal practitioner and client scale."
On
5 November 2010 the first respondent obtained a writ of execution against the
applicant authorizing the Deputy Sheriff to effect ejectment and execution
against the applicant's movable property.
On
26 November 2010 the Deputy Sheriff commenced the ejectment and execution
procedures in terms of the writ of execution. It so happened that before the
Deputy Sheriff had completed his mandate the applicant was placed under
judicial management on 6 April 2011.
In
terms of s 213 of the Companies Act [Cap
24:03] the placement of the applicant under judicial management by
court in the winding up process had the effect of freezing all judicial processes
against it as at that date. The section provides as follows:
"213
Action stayed and avoidance of certain attachments, executions and dispositions
and alteration of status
In a winding up by the
court-
(a) no action or proceeding shall be proceeded with or
commenced against the company except by leave of the court and subject to such
terms as the court may impose;
(b) any attachment or execution put in force against the
assets of the company after the commencement of the winding up shall be void;
(c) every disposition of the property, including rights of
action, of the company and every transfer of shares or alteration in the status
of its members, made after the
commencement of the winding up, shall, unless the court otherwise
orders, be void."
The parties are agreed that whatever the sheriff or his
deputy had done in execution of the order before 6 April cannot be reversed.
The law requires that the status qua ante
as at 6 April 2011 be maintained.
At the instance of the court the Deputy Sheriff has now
submitted a report detailing what he had done as at that date in terms of his
mandate. The report is dated 15 June 2011. It is lucid but detailed and
self explanatory such that there is need to reproduce the report in order to
put the matter in its correct perspective. It reads:
"1. We
received instructions in this matter in November 2010 from the Plaintiff's
Legal practitioners,
Gill, Godlonton & Gerrans. The instructions required us
to eject
Continental Fashions (Private ) Limited from Old Mutual's premises
at
number 4624 Kelvin Road, Graniteside, Harare and to attach and cause
Continental Fashions' property to be sold in
order to realize the amount owed
to Old
Mutual as rentals, holding over damages and interest. The premises in
issue
fell under my jurisdiction so I had to carry out the instructions.
2. On
the 26th of November 2010, I went to number 4624 Kelvin Road,
Graniteside. Attached and removed certain goods to Ruby Auctions where they
would be sold. Some of the goods could not be removed easily or was expensive
to remove to Ruby Auctions and I decided together with the Auctioneers to
request Old Mutual for permission to sell this property on he premises, I also
served an Notice of eviction which I was going to carry out on the 2nd
of December 2010.
3. On
the 2nd of December 2010, I was supposed to carryout the eviction in
accordance with the Notice I had given on the 26th of November 2010.
Old Mutual's lawyers where (sic) however, served with an Urgent Chamber
Application so they instructed us to stop the execution and await further
instructions.
4. On
the 8th of December 2010, on instructions from Gill, Godlonton &
Gerrans, I proceeded to carry out the eviction. I also ascertained that
Continental Fashions had leased out one wing of the premises to a sub-tenant
called Loan Holdings (Private) Limited. I did not carry out the eviction of the
sub tenant on this date.
5. On
the 10th of December 2010, I returned to the premises to continue
with the eviction of Continental Fashions. What was left for was the machinery
to be sold in situ as discussed and agreed between me, the Auctioneers and Old
Mutual. Since I had completed the eviction proceedings. I changed the locks
and gave Ruby Auctions a set of the keys so that they could carryout an
inventory and put its security details in charge of the property pending self
of the property in situ on the 28th of January 2011.
6. When
I had almost removed everything from the premises, occupied by the sub tenant
the eviction was stopped by Old Mutual on the basis of an agreement reached
with the sub tenant. This sub tenant claimed that it was involved in
construction of a dam called Kunzwi Dam which project was of national
importance as confirmed by the involvement of the presidium. The sub tenant
discussed the matter with Old Mutual who agreed to allow the sub tenant to
continue in occupation of the wing until the 30th of December 2010
on which date it would vacate the premises voluntarily.
7. On
the 30th of December 2010, I went to the premises and discovered
that the sub tenant had infact vacated the premises as agreed with Old Mutual.
8. The
property which had been removed to Ruby Auctions was sold on the 9 December
2010 and realized US$867-93 which amount was paid to the Deputy Sheriff's
Office and before the company was placed under Judicial Management.
9. The
sale in situ was not carried out because an application for placement of
Continental Fashions (Private) Limited under judicial management was made and
we received a letter from Tudor House Consultants on the 1st of
April 2011 advising same. I duly advised Ruby Auctions to stop the sale in
execution in situ and to return the keys to me so that we could hand them over
to the Provisional Judicial Manager to allow him to take possession of and
remove the unsold property as the sale in execution would no longer go ahead. I
consequently issued a return of service dated 5 April 2011 to the effect that
that the sale in execution had been stayed and the writ of execution returned
to Old Mutual's legal practitioners.
10. I
confirm that as of 6th April I had completed eviction of Continental
Fashions (Private) Limited and handed over the premises to Old Mutual and Ruby
Auctions to facilitate the sale in execution of the equipment on the premises.
I confirm that consistent with completion of the process of eviction, I had
changed the locks on the premises and installed new keys which I handed over to
Ruby Auctions and Old Mutual on 10th December 2010."
The Deputy Sheriff is a
independent officer of the court who has no motive for misrepresenting the
facts. His averment to the effect that as of 6 April 2011 he had completed the
eviction of Continental Fashions (Private Limited) and handed over the premises
to Old Mutual and Ruby Auctions is beyond question.
He had also placed all the
machinery under the custody of Ruby Auctioneers who opted to auction the
massive machinery at the place it was situated without dismantling it. Thus as
at 6 April 2011 the machinery was under the custody detention and control of
Ruby Auctioneers pending sale in execution.
This court therefore finds that
as at 6 April 2011 the applicant had already been evicted and its property
placed under Ruby Auctioneers for sale in execution. As the parties are agreed
that whatever the Deputy Sheriff had done as at that date cannot be undone the
applicant's application which seeks to reverse the eviction and placement of
property in the hands of the auctioneers for sale in execution cannot succeed.
Once the applicant had been evicted its on rights it might have had in respect
of the leased premises were extinguished.
In the result it is ordered that the application be
and is hereby dismissed with costs
Matsikidze &
Mucheche, applicant's legal practitioners
Wintertons, 1st
respondent's legal practitioners
