CHATUKUTA
J: The applicant seeks, on an urgent
basis, an interdict to restrain the 1st, 2nd and 3rd
respondents (herein jointly referred to as respondents) from using a replacement
Deed of Transfer No. 6884/92. Mr Paul
Christopher Paul deposed to the Founding affidavit in his capacity as the
director of applicant.
The
background to the application is that on 29 November 2004, the applicant sold
to 1st respondent certain three pieces of land. Messrs Louis and Jose Eduardo da Silva Viera
were the directors of applicant. In
January 2005, one of the directors, Louis Viera, signed a document appointing
the 2nd and 3rd respondents as Directors of
applicant. On 9 January 2007, the applicant issues
summons in the High Court in Case No HC 109/07 seeking the eviction of the 1st
respondent from the three properties.
The claim was defended. Subsequent to that action, the respondents
applied for and obtained replacement deeds of transfer in respect of the three
properties. Two of the properties were
transfer to third parties using the replacement deeds of transfer. The property held under Deed of Transfer No.
6884/92 has not yet been transferred. The
applicant fears that the respondents will dispose of the property and transfer
it to a third party hence the present application for an interdict.
The
above facts are those that appear to me not to be in issue and are relevant for
the determination of this matter.
The
respondents opposed the application. Two
points have been raised in limine. The first point is that the matter is not
urgent. The second point is that Mr Paul
Christopher Paul is not a director of the applicant company and does not have
the authority to institute these proceedings on behalf of the applicant. It was contended that the 2nd and
3rd respondents were the duly appointed directors of the
applicant. They had not authorized Mr
Paul to institute these proceedings.
It
appears to me that this application can be disposed of by the determined of the
first point. The respondents contended
that the matter is not urgent. Mr
Chivizhe, for the respondents, submitted that the certificate of urgency
does not disclose the basis upon which the legal practitioner who certified the
matter urgent did so. He submitted that
the Founding Affidavit also did not disclose the basis upon which the
application should be heard urgently. It
was further submitted that the 2nd and 3rd respondents have
been managing the applicant's affairs from November 2004 when the parties
entered into an agreement of sale. After
their appointment as directors in 2005, the 2nd and 3rd respondents
have been making decisions on behalf of the company. The applicant has not over the years sought
to interdict it from managing the affairs of the applicant. This is despite the fact that the applicant sued
the 1st respondent for ejectment in 2007 in case No. HC 109/07.
The matter was referred for trial in June 2007. Since then the applicant has not taken any
action to prosecute the matter. One of
the issues that was referred to trial is whether or not the 2nd and
3rd respondents are the applicant's directors. The applicant was therefore not diligent in
restraining the two respondents from exercising their powers as directors of
the applicant over the past years.
Mr Paul, for the applicants, contended
that the urgency arose from the disposal of two of the properties to third parties. It was contended that the applicant only
became aware of the disposals a few days before an extraordinary meeting that
was held on 17 February 2009. It was
contended that the urgency of the matter was that the 2nd and 3rd
respondents made a false statement that the deeds of transfer of the properties
that the 1st respondent bought were lost. This was despite the fact that at the time
when the pre trial conference was held, the respondents were aware that the
applicant's legal practitioners of record had the original deeds in their
possession.
It
is my view that the certificate of urgency is highly inadequate. It is brief and does not establish the basis
upon which Mr Jori certifies that the matter is urgent. In General
Transport and Engeneering P/L and Ors v Zimbank 1998 (2) ZLR 301 (H) at
302E-303B, it was held that a certificate of urgency must not be taken lightly. It is intended to assist the court in
determining whether or not a matter is urgent.
It appears to me that Mr Jori did not address his mind to the issue at
hand. The totality of his certificate is
captured in one paragraph. The
paragraphs does not state when the alleged fraudulent acts were discovered and
why this application comes after disposal of two other properties presumably
with the use of the Replacement Deeds of Transfer.
It also appears to me that the founding
affidavit does not specify when the applicant became aware of the respondent's
fraudulent acts. Upon inquiry on the
issue, Mr Paul referred me to
paragraph 17 of the Founding Affidavit.
The paragraph reads:
" 17 That
the issue of the replacement title deeds to the two properties and the sale of
the 2 properties has only now been ascertained as a result of a search being
conducted in the deeds registry."
Mr Paul submitted submitted that the
"now" in the paragraph meant that the applicant had become aware of the urgency
on or about the time when the Founding Affidavit was signed. The response by Mr Paul was, in my view, inadequate. Mr Paul is the applicant's legal
practitioner. He should, in my view, be
aware of the date when the fraudulent acts were discovered. The date when the fraudulent acts were
discovered would establish whether or not the applicant acted diligently. The court cannot be expected to read into the
Founding Affidavit that "now" means the date of signature of the Founding
Affidavit. The explanation given by Mr Paul during oral submissions that the
applicant became ware of the acts before the extra ordinary meeting is not
contained in the Founding Affidavit. The
explanation is not contained in the Answering Affidavit either, despite the
issue having been raised in the Opposing Affidavit. As submitted by Mr Chivhinge, the application must stand or fall on the Founding
affidavit. In this case it falls on the
Founding Affidavit.
It
appears to me that the applicant sat on its rights until the respondents
disposed of the two properties. As from the
time the agreement of sale was concluded, the respondents were running the
affairs of the applicant. The applicant
was aware that the 2nd and 3rd respondents were holding themselves
out as its directors. In case No. HC
109/07, the 2nd and 3rd respondents pleaded that they
were the applicant's directors. In fact,
they are also challenging, in that case, the authority of one of the Vieras to institute
those proceedings. It is my view that
the applicant did not have to wait for a fraudulent act for it to bring this
action. As stated in Kuverega v Registrar
General 1998 (1) ZLR 188 at 193F-G:
"Urgency which
stems from a deliberate or careless abstention from action until the deadline
draws near is not the type of urgency contemplated by the rules."
The
respondents' contention that this matter would not have been before me had the
applicants diligently prosecuted their action finds favour with me. The matter was referred to trial on 15 June
2007. The matter was set down for trial
for 16 July 2007, a month after it was referred to trial. The matter could not take off then at the
request of the applicant contained in a letter dated 13 July 2007, because Mr
Viera required time to make travel arrangements to come to Zimbabwe from Australia. It appears from the record that the applicant
has not taken any action, from that time, to ensure that the matter is heard. The applicant therefore allowed the
respondents to continue running its affairs for almost two years before they
brought this application.
In
the result, the application is dismissed with costs.
Messrs Wintertons, applicant's legal
practitioners
Chivinge &
Company, 2nd and 3rd respondents'
legal practitioners
