CHATUKUTA
J:
The
first respondent was a duly registered commercial bank prior to 6
January 2015. It surrendered its banking licence to the applicant on
6 January 2015 as a result of capitalisation challenges. On 9 January
2015, the applicant petitioned the High Court in case No HC180/15 for
the liquidation of the first respondent. The applicant issued a press
statement in various newspapers advising the public of the fact that
the first respondent had surrendered its licence and of its intention
to wind up the first respondent.
Prior
to the above events, the second respondent had obtained an order
against the first respondent in case number HC27484/14. On 10 January
2015, after the press release by the applicant and the filing of
HC180/15, the second respondent instructed the third respondent to
proceed with the execution of the order in HC27484/14. At the same
time, it signed a bond of indemnity in favour of the third
respondent. On 12 January 2015, the third respondent proceeded to
evict the first respondent from its premises at Travel Plaza and
attached various movables.
When
the applicant became aware that execution had commenced, it wrote to
the third respondent on 12 January 2015 advising him of the petition
to liquidate the first respondent. The letter set out the provisions
of the Companies Act [Chapter
24:20]
and in particular ss 210 and 213. It further set out the import of
the provisions that the filing of a petition for liquidation stays
any legal proceedings against the company being wound up.
In
addition to the letter, Mr Chiurayi
communicated
telephonically with Mr. Smart Moyo, the Messenger of Court, Harare,
confirming the contents of the latter. It was averred by Mr Chiurayi
in the founding affidavit, which averment was not controverted, that
Mr Moyo indicated that he would proceed with the execution in the
absence of a court order directing him to cease execution.
It
is this response that caused the applicant to seek an order directing
the third respondent to desist from proceeding with the execution.
The
parties first appeared before me on 15 January 2015. Initially, Ms
Magundani
submitted
that the third respondent would only be prevented from proceeding to
execute by an order of this court. She however abandoned this
argument and all the parties agreed to the court granting a final
order. Ms Magundani,
submitted that as the Messenger of Court was executing an order of
court there was no basis for the court to make an award for costs
against him. She further submitted that she did not instruction to
consent to any order for costs against the third respondent.
The
only outstanding issue which gave rise to another hearing (now on 20
January 2015) is therefore the question of costs in view of the fact
that all the parties were consenting to the court granting a final
order.
Mr
Makori submitted
that the applicant had been placed out of pocket by the unreasonable
refusal of the third respondent to cease execution despite the letter
of 12 January 2015 and the telephone conversation of the same day
between Mr Chiurayi
and Mr Smart Moyo. It was further submitted that the applicant's
representative who was present during the ejectment of the first
respondent also showed the third respondent a copy of the
application.
Ms
Magundani submitted
that the third respondent only became aware of the court application
in HC180/15 formally and in terms of the rules, on 13 January 2015
when the application was served on the respondent.
I
am inclined to agree with Ms
Magundani
that, the third respondent, as an officer of the court, is only
mandated (generally) to act on the strength of a court order. An
exception to this general rule is as in the present case where an Act
of Parliament specifically precludes him from exercising that
mandate. The Messenger of Court cannot be expected to act on the say
so of one of the parties, either verbally or in writing.
See
Dlodlo
v Deputy
Sheriff Marondera
2011 (1) ZLR 416 @ 418 H-419D.
However,
the matter does not end here.
It
is common cause that the third respondent was served with the court
application on 13 January 2015. He had, in my view, the prior wise
counsel of the applicant's legal practitioner on the effect of the
application and the need to desist from proceeding with the
execution. He however, indicated that he would not stop the execution
unless he was availed a court order directing him to stop.
The
third respondent's position that only a court order would prevent
him from proceeding with the execution is buttressed in two respects.
Firstly, initial submissions for the third respondent made on 15
January 2015 were to the same effect. Secondly, the third respondent
wrote a letter on 15 January 2015 to the applicant's counsel
confirming the contents of the letter of 12 January 2015. The letter
reads as follows:
“We
refer to your letter dated 06th
January 2015, in respect of the above matter.
The
contents have been noted.
We
suggest you write DIRECT
(sic) to the instructing lawyers Messrs Mambosasa Legal
Practitioners.
Please
note that the Office Messenger of Court (sic) has a mandate to
execute all court documents.”
The
third respondent's letter, though of 15 January 2015, is important
in that the respondent was acknowledging the contents of the
applicant's letter of 12 January 2015. The contents as alluded
earlier indicated the reasons why the third respondent should have
halted the execution. Despite the applicant's letter being
specifically directed at him the third respondent was of the view
that the proper person that the applicant should have contracted was
the second respondent's legal practitioners. In fact, emphasis was
placed on the word “direct” to reflect that the third respondent
had nothing to do with the contents of the letter whether or not he
was being told that he was precluded by an Act of Parliament from
proceeding with the execution.
As
a parting shot, the third respondent reminded the applicant's legal
practitioners of his mandate to comply with court orders and nothing
else. This was so despite the fact that as of the date of his letter,
he had not only been served with the petition in HC180/15, but with
the present court application.
Mambosasa
Legal Practitioners had in fact communicated with the third
respondent instructing him to release documents (presumably attached
during the execution) to the applicant's representatives who were
at the first respondent's offices. In an email dated 12 January
2015 and at 1641hours, Mr Shomwe of Mambosasa Legal Practitioners
observed as follows:
“2.
We are however agreeable to yourselves or the RBZ taking possession
of all the documents at the branch. In
actual fact, I have personally instructed the Messenger of Court to
release all documents to the RBZ officials who were at the scene.
A certain Mr Dendere is in possession of those documents as I write.
3.
We are also agreeable to releasing any other documentation or thing
(sic) which your offices or RBZ may require.” (own emphasis).
It
is therefore surprising that the third respondent was directing the
applicant's legal practitioners to contact Mambosasa Legal
Practitioners when Mr Shomwe had already contacted him and given him
instructions following the applicant's letter.
It
is therefore no surprise that the applicant found itself here in
court to protect the interests of the first respondent's depositors
and creditors as it is mandated to do. Had the third respondent taken
heed of the provisions in the letter of 12 January 2015 and the court
application in HC180/15, and further the court's observations on 15
January 2015, the matter would not have proceeded this far. It is my
view that the third respondent did not exercise diligence and acted
unreasonably for an officer of the court.
Regarding
the question of costs, it appears both parties had agreed to an order
for ordinary costs prior to the hearing.
In
the result the draft consent order is granted with costs.
Coghlan,
Welsh & Guest,
applicant's legal practitioners
Mambosasa
Legal Practitioners,
2nd
respondent's legal practitioners
Scanlen
& Holderness,
3rd
respondent's legal practitioners
