MAKONESE J: On 10 May 2016
this matter was placed before me with a request that I provide
reasons for an order I granted on 16 June 2015. The order I granted
is in the following terms:
“Interim relief granted
This order shall operate as a
temporary interdict directing 1st
and 2nd
respondents to render to the Sheriff such assistance as he may
require to carry out his duties in terms of the order granted under
case number HC2700/14.”
It has now been brought to my
attention that an appeal was noted against this interim order on 23
June 2015. I observe that in the pending appeal it is contended that
an appeal is noted against “the whole judgment of the court a
quo.” I will not
dwell on the rest of the issues raised in the notice of appeal, as
that matter is now pending in the Supreme Court. It seems to me that
the appeal was filed without a full appreciation that in fact I
issued an “interim” order and that there was in fact no “whole
judgment”.
Be that as it may, I am now
required to furnish reasons for the granting of the order which I now
proceed to do.
Prior to the 16th
June 2015 when I granted the interim order, the parties had filed
numerous applications in this court. At least no less than eight
applications had been filed in this matter prior to the granting of
the order in issue. The primary cause for these applications is that
serious fights were raging regarding the disputed leadership in a
church known as The Apostolic Faith Mission of Africa, whose main
headquarters was situated in Bulawayo. It was alleged by both sides
that their leaders were legitimate and authentic. On 11 June 2015
under case number HC2700/14, MOYO
J granted an order whose operative part provided inter
alia as follows:
“1. The 1st
and 2nd
respondents as well as their agents be and are hereby interdicted
from interfering, visiting or using the 6th
applicant's properties wherever situate without the express
authority and or consent of the applicants'.
2. The 1st
and 2nd
respondents as well as their agents are barred from presenting or
purporting to act as the 6th
applicant either to the 6th
applicant's members or to the members of the public.
3. The 1st
and 2nd
respondents and their agents are ordered to release and return the
control of the 6th
applicant's properties wherever situate to the applicants and to
surrender the 6th
applicant's affairs and activities to the applicants forthwith.
The 6th
applicant's properties shall include but not limited to those
listed on the order granted by this court on HC 2166/14.”
When the urgent chamber
application was placed before me I noted that the respondents had
been served with the order under case number HC2700/14 on the 13th
June 2015. What concerned me were the comments on the Deputy
Sheriff's return of service which were in the following terms:-
“Attempted
execution failed to fully execute the court order due to resistance
of respondent's agents. Reported the matter to police who said
cannot assist in driving the agents out because they are not cited in
the court order.”
In terms of Order 32 Rule 242 of
the High Court Civil Rules, 1971 –
“(1) A chamber application
shall be served on all interested parties unless the defendant or
respondent, as the case may be, has previously had due notice of the
order sought and is in default or unless the applicant reasonably
believes one or more of the following:-
(a) that the matter is
uncontentious in that no person other than the applicant can
reasonably be expected to be affected by the order sought or object
to it;
(b) …
(c) that there is a risk of
perverse conduct in that any person who would otherwise be entitled
to notice of the application is likely to act so as to defeat, wholly
or partly, the purpose of the application prior to an order being
granted or served.
(d) that the matter is so urgent
and the risk of irreparable damage to the applicant is so great that
there is insufficient time to give due notice to those otherwise
entitled to it;
(e) that there is any other
reason, acceptable to the judge, why such notice should not be
given.”
It seems evident to me that the
comments on the Deputy Sheriff's return of service of 13th
June 2015 left no doubt that the respondents and his agents or
followers were aware of the order granted under case number HC2700/14
and that they resisted its enforcement.
The respondents conducted
themselves in a manner that indicated an unwillingness to comply with
an order of the court.
Faced with that situation the
court was obliged to give such order as would ensure compliance with
its orders. It was clear that service of the urgent chamber
application would likely lead to perverse conduct and that the matter
needed to be dealt with urgently. I have already indicated that the
respective parties to this dispute had filed several applications
against each other. It is beyond dispute that there were running
battles between the parties in this matter. Given the urgency of the
matter and the history of the extremely volatile circumstances
surrounding the matter I found it prudent to grant an “interim”
order. I was acutely aware that the order I granted was to provide
interim relief and that the respondents could, if so disposed file a
notice of opposition within the period stipulated in the order.
Further, and in any event the respondents could in terms of the
Rules, anticipate the matter and set it down for argument. There was
therefore no prejudice to the respondents.
In the matter of G
R Engineering (Pvt) Ltd and Godfrey Chinhengo
v Mire Engineering
(Pvt) Ltd HB-29-05,
the court held at page 1 of the cyclostyled judgment as follows:
“The rationale of an ex
parte application is
to curb the expected perverse conduct on the part of the respondent
which would result in irreparable harm on applicants, ultimately
leaving them with no suitable remedy. It is on this basis that I
find that the matter is urgent.”
A clear reading of Rule 242
reflects that chamber applications are ordinarily to be served on all
interested parties. The rules then make specific provisions when such
service may be dispensed with. The court thus has a discretion
whether or not to grant an order ex
parte. In the
circumstances and in pursuance of the provisions of Order 32 Rule 242
I was inclined to grant the order to ensure that respondents complied
with the orders of the court.
Assuming that the respondents did
not agree with the terms of the order they had the option to oppose
confirmation of the provisional order.
I accordingly granted the interim
relief as prayed.
Messrs Mugiya & Macharaga Law Chambers c/o Muzvuzvu &
Mguni Law Chambers, applicant's legal practitioners
Messrs Majoko & Majoko, 3rd & 4th
respondents' legal practitioners
