MAKONESE J: This is an
application for an interdict pendent
lite.
The 1st
respondent is the appointed liquidator of 2nd
respondent (J W Jaggers Wholesalers (Pvt) Ltd) which was placed under
liquidation by order of this court sometime in February 2011. In
pursuance of his duties as liquidator, 1st
respondent sought to sell certain fixtures, fittings and amenities to
meet its financial obligations to its creditors. The fixtures and
fittings are currently at two properties that applicant was leasing
to 2nd
respondent before it went into liquidation. There are two lease
agreements between applicant and 2nd
respondent with respect to the properties situate in Bulawayo and
Kwekwe. A dispute has now arisen between applicant and 1st
respondent over 1st
respondent's expressed intention to dispose, by sale, the fixtures
and fittings. Applicant avers that it owns the fixtures and fittings
it has named and listed, whilst 1st
respondent is adamant that such property is part of 2nd
respondent's assets, and intends to sell such assets for the
benefit of the creditors.
The relief sought by the
applicant is couched in the following terms:
“It is ordered that:
1. The 1st
respondent be and is hereby restrained and interdicted from selling
or in any way disposing of the property listed in the schedule filed
as annexure A to the applicant's founding affidavit for this
application, pending the final determination of the action instituted
by the applicant herein for a declaratory order declaring it the
owner of the property.
2. The schedule referred to in
paragraph 1 above shall always be attached to, and shall form part of
this order.
2. Costs follow the cause.”
Preliminary points
The 1st
respondent has raised two points in
limine, namely:-
(a) The application before the
court is improperly before the court for failing to comply with the
provisions of Order 32 Rule 232.
(b) The application was filed in
contravention of section 213 of the Companies Act (Chapter 24:03)
which provides as follows:
“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.”
Whether the application is not
properly before the court
The 1st
respondent sought to argue that the application is not properly
before the court by reason of failure to give adequate notice for the
filing of opposing papers.
In terms of Rule 232 of the High
Court Rules, 1971, the applicant was required to give respondents at
least 12 days notice to file their opposing papers.
The issue taken by respondents is
that the applicant failed to follow the proper procedure when it was
indicated on applicant's papers that 10 days instead of 12 days
notice to oppose was required, regard being had to the fact that the
place where the application was served was more than 200 kilometres
from the court where the application is to be heard. It was contended
that such defect in the time given for filing opposing papers meant
that the papers were not properly before the court.
The 1st
respondent's legal practitioner did not persist with this argument.
In any event, as correctly
pointed out by applicant's legal practitioner, the application was
drafted in standard form, and applicant did not, by the mere
insertion of the period of 10 days insist that the respondent must
respond within 10 days.
In any event, in my view, the
applicant does not determine the time stipulations set out in the
Rules of this court and therefore respondents were not obliged to
comply with the said 10 day time stipulation period but stood guided
by the law as contained in the Rules. Further, and in any event, the
respondents were able to file their opposing papers within the 10 day
period. There was no prejudice suffered by the respondents as a
result of the 10 day stipulation. I therefore dispose of the first
point in limine
as lacking in merit and not fatal to the application.
Whether this application
contravenes section 213 of the Companies Act
The second preliminary point
taken by the 1st
respondent is that the application contravenes section 213 of the
Companies Act.
It is contended that 1st
respondent is cited in his capacity as the representative of the 2nd
respondent and that whatever action is being sought against 1st
respondent affects 2nd
respondent, hence 2nd
respondent is cited as an interested party and as such the provisions
of section 213 of the Companies Act applies in these proceedings. The
argument is extended further to indicate that the fixtures, fittings
and amenities that are being administered by 1st
respondent are the subject matter of this application and
consequently any order sought and granted against 1st
respondent in his capacity as liquidator will result in prejudice to
the 2nd
respondent.
For that reason, it was argued on
behalf of 1st
respondent that leave should be obtained first before any proceedings
against the respondents are commenced.
It is my view that the argument
that the provisions of section 213 of the Companies Act have not been
followed is not well grounded.
1st
respondent is not itself under liquidation. It is 2nd
respondent (J W Jaggers Wholesalers (Pvt) Ltd), which is under
liquidation. 2nd
respondent has been merely cited as an interested party, without
whose predicament, 1st
respondent would not be in place. It is evident that no order is
being sought against 2nd
respondent in this application, and as such these proceedings do not
constitute action or proceedings against 2nd
respondent as contemplated under section 213(a) of the Companies Act.
This court had occasion to deal with a similar situation in the case
of Elphias Kawa
v Victor Muzenda (NO)
and Ors HB-10-14.
This application is not in
contravention of section 213 of the Companies Act since no
substantial relief is sought against 2nd
respondent. I accordingly dispose of the second preliminary point
and proceed to deal with the merits.
On the merits
It is contended by respondent
that the applicant has failed to establish a clear right to warrant
the granting of the order sought.
The requirements of an interdict
pendent lite
were clearly laid out in the case of Blimas
v Dardagan 1951
(1) SA 140. The court held that to obtain an interdict the applicant
must satisfy the court either:
(a) that he has a clear right and
that injury has been committed or reasonably apprehended.
(b) that he has a prima
facie right and that
irreparable injury will be caused to him if the interdict is not
granted.
In its founding affidavit, the
applicant has laid bare claims of right in the fixtures and fittings.
There is no documentary proof in applicant's papers asserting a
clear right. The mere production of a list of fixtures and fitting
does not in any way prove any right of ownership in the property in
question. The lease agreement entered into between applicant and 2nd
respondent stipulates in clause 4(iii) that the fixtures and fittings
belonged to the lessee and that on termination the fixtures and
fitting were to be removed. There is no ambiguity in the terms of the
lease agreements as to whom the fittings and fixtures belong to. It
has not escaped the court's attention that the lease agreement
between applicant and 2nd
respondent relates to buildings erected on the industrial stands in
issue. The fittings and fixtures were not listed as annexures to the
lease agreements and are not part of the lease agreements. The
logical conclusion is that whatever property belonged to 2nd
respondent was removed upon termination of the lease as contemplated
by the express provisions of the lease.
1st
respondent is well within his rights to dispose of these fixtures and
fittings in his capacity as liquidator.
The applicant is prevented by the
parol–evidence rule which prohibits a party to a contract that has
been integrated into a single and complete document from introducing
extrinsic evidence which has the effect of contradicting, adding to
or modifying the written terms. See the cases of Johnson
v Leal
1980 (3) SA 927 and Union
Government v Vianini
Ferro Concrete Pipes (Pty) Ltd
1941 AD 43.
I am not satisfied that the
applicant has established a clear right. Applicant has laid a bare
claim to the property not supported by its papers.
In the case of ZESA
Pension Fund v
Mushambadzi SC-57-02,
ZIYAMBI
(JA), stated as follows:-
“With regard to a temporary
interdict, the following must be established:-
1. a right which, though prima
facie established is
open to some doubt.
2. a well grounded apprehension
of irreparable injury.
3. the absence of any other
remedy.
4. the balance of convenience
favours the applicant.”
In my view neither a clear right
nor a prima facie
right has been established by the applicant. There is no well
grounded apprehension of harm as the property that is referred to as
fixtures and fittings is dealt with in accordance with the lease
agreement.
The liquidator's duty is to
ensure that assets belonging to 2nd
respondent are disposed in terms of the law. The applicant had
various options to protect their interests. The 2nd
respondent was placed under liquidation in February 2011. No
explanation has been given why applicant only took action in 2014. In
any event, case number HC2006/14 has not been pursued or concluded.
In this matter, there can be no doubt the balance of convenience
weighs heavily against the granting of interdict in that the delay in
the sale of the fixtures and fittings over a frivolous claim of right
by the applicant will prejudice all the creditors of the 2nd
respondent who are intended to benefit from the sale of such
property.
In Eriksen
Motors (Welkom) v
Protea Motors and Anor
1973 (3) SA 685 the learned judge stated that an interim interdict
pendete lite
is an extraordinary remedy within the discretion of the court and
that in exercising its discretion the court weighs, inter alia, the
prejudice to the applicant, if the interdict is withheld, against the
prejudice to the respondent if it is granted. This is sometimes
known as the balance of convenience.
On the basis of the foregoing, I
am of the view that the applicant's application has no merit and I,
accordingly make the following order:-
1. the application be and is
hereby dismissed.
2. The applicant shall bear the
costs of suit.
Phulu & Ncube, applicant's legal practitioners
C. Nhema & Associates, respondents' legal practitioners
