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HH477-16 - RICHARD SEAGER vs ALESTER ZIYANGA

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Procedural Law-viz urgent application re anti-dissipation order.
Company Law-viz partnership re joint venture iro alienation of assets.
Company Law-viz partnership re joint venture iro disposal of property.
Company Law-viz partnership re division of joint venture assets iro sharing of profits.
Law of Property-viz the anti-dissipation interdict re the interdict securitatem debiti.
Constitutional Law-viz constitutionality of statutory provisions re common law legal principles iro the anti-dissipation interdict.
Constitutional Law-viz constitutional rights re property rights iro the anti dissipation interdict.
Procedural Law-viz urgent chamber application re urgency iro the certificate of urgency.
Procedural Law-viz urgent application re urgency iro time to act urgency.
Procedural Law-viz urgent chamber application re the certificate of urgency iro Rule 244 of the High Court Rules.
Procedural Law-viz urgent application re urgency iro irreparable harm.
Legal Practitioners-viz professional ethics.
Law of Property-viz the anti-dissipation interdict re judicial caveat over undisputed property.
Procedural Law-viz urgent application re the anti dissipation order iro judicial caveat over undisputed assets.
Law of Property-viz judicial caveat re the anti-dissipation interdict.
Procedural Law-viz urgent chamber application re urgency iro forum shopping.
Procedural Law-viz urgent application re urgency iro material non-disclosures.
Procedural Law-viz rules of evidence re candidness with the court iro material non-disclosures.
Procedural Law-viz rules of evidence re being candid with the court iro material non-disclosures.
Procedural Law-viz rules of evidence re evidence derived from previous litigation.
Procedural Law-viz interim interdict re relief overriding an extant order of court.

Constitutionality of Statutory Provisions re: Common Law Legal Principles


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Constitutional Rights re: Property Rights, Compulsory Deprivation, Arbitrary Eviction and the Right to Shelter


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency


A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he, on his part, treated the matter as urgent.

This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145-02.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent, on a reading of his papers, that his matter is urgent.

A court seized with an urgent application is expected, on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court


The certificate of urgency stated that the “applicant acted with agency to file this application.” It is clear that reference to “agency” refers to urgency. 

This goes to show that legal practitioners do not check their work....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016.

The matter was allocated to me on 15 July 2016.

There is no explanation from the Registrar why the application was only placed before me only then.

Urgency re: Certificate of Urgency


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Like in any other matter, the court dealing with such an application has a wide discretion which it must exercise judiciously and would be expected to cautiously weigh the competing interests of the parties.

The applicant seeks an order interdicting the respondent from removing assets from the farm on the premise that if he is allowed to do so, he may defeat the object of his claim.

What the applicant seeks is clearly an anti-dissipation order.

An application for an anti-dissipation interdict is invariably brought ex parte. This application was brought on notice and hence the normal rules of procedure apply.

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he, on his part, treated the matter as urgent.

This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145-02.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent, on a reading of his papers, that his matter is urgent.

A court seized with an urgent application is expected, on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

The court should, on the basis of the contents of the certificate of urgency alone, be able to ascertain whether the matter is urgent.

The certificate of urgency serves to inform and guide the court regarding the urgency of the matter. A certificate of urgency must place facts before the court with sufficient detail as to enable the court to decide on the urgency of the matter. It should outline details sufficient to inform the court of the nature of the application, the harm likely to be suffered if the matter is not dealt with on an urgent basis, and that the applicant treated the matter as urgent.

A legal practitioner certifying a matter urgent must state reasons for his own belief in the urgency of the matter. He must apply his mind to the facts and circumstances of the case and must allege facts that render the matter urgent justifying its placement on the urgent roll. In addition to the brief circumstances of the case, the certificate of urgency is required to state the following factors;

(a) The conduct complained against and the circumstances surrounding such conduct.

(b) When the applicant became aware of the facts giving rise to the complaint.

(c) What the applicant did after becoming aware of the conduct complained against.

(d) The nature of the application being made and relief sought to address the situation, which should be of an interim nature.

(e) The applicant must show that he treated the matter as urgent.

(f) He must show that if the conduct is not addressed, on an urgent basis, irreparable harm will occur to him.

(g) The nature and extent of the irreparable harm likely to be suffered and the consequences thereof require to be stated.

Failure to comply with the requirements governing the certificate of urgency may result in a matter being removed from the roll for lack of urgency.

The urgency of an application for an anti-dissipation interdict arises at the point when the need to bring the application for an interdict arises.

In a case where a litigant seeks to stop dissipation of assets on the premises that a respondent is removing assets, the need to act arises the moment the conduct complained against commences or when an applicant becomes aware of the conduct complained of.

Such a litigant is expected to show that he asserted himself and acted timeously in order to stop the harm or danger posed. He must also show that if the conduct complained against is not stopped he stands to suffer irreparable harm, in that, he will be left without assets or sufficient assets on which he expects to execute.

The respondent takes issue with the fact that the certificate of service was done by a legal practitioner from the applicant's law firm.

The Rules do not specify who should certify a matter urgent.

The mischief behind the rule that an urgent matter be certified urgent was to streamline matters being brought on an urgent basis and to eliminate abuse of the process.

A practice has arisen where a legal practitioner from a different firm is requested to certify the matter urgent. The objective was to seek an independent view of the matter and prevent abuse of the system.

There have been divergent views over the propriety of the certificate being done by a legal practitioner from the same firm bringing the application.

A school of thought has developed that a legal practitioner from the same law firm is usually conflicted and may pass matters as urgent when they are not and usually has an interest in such a matter and may not give an independent and professional view of the matter.

There are also challenges with requiring a legal practitioner from a different law firm to certify a matter. The reality is simply that some legal practitioners may simply be un-interested in the matter resulting in them just signing certificates prepared by a colleague without applying their minds to the contents.

When one looks at the state of certificates that come before the courts, that conclusion is inescapable.

Another school of thought is that the certificate of urgency should be done away with as it has seized to be useful to the court.

I am of the view that a certificate of urgency is crucial as it aids the court to streamline and recognise urgent matters. What is essential is that the certificate meets the criteria and is crafted in such a manner that it assists the court in the decision it has to make.

A matter should not be certified urgent as a matter of course.

Legal practitioners certifying matters urgent should bear in mind the responsibility and duty they have and such is to the court alone. Legal practitioners are expected to address their minds to the contents of the certificate and ensure that it meets the requirements. It should not matter who certifies a matter urgent for as long as the same legal practitioner bringing the application does not certify the matter as urgent.

The certificate of urgency filed in support of this application was done by Felicity Ndou. She is from the same legal firm representing the applicant.

My view is that this alone is not fatal to the application. What F. Ndou ought to have done is to ensure that the certificate meets the standards expected.

The certificate of urgency does not comply with Rule 244 and is defective.

The certificate is lacking in particularity regarding the facts and circumstances surrounding urgency. It is not clear from the certificate that the interdict sought is an anti-dissipation order.

Whilst the certificate speaks to the claim in the summons, and states that the respondent started to remove joint venture agricultural equipment from the farm after he learnt of the claim, the certificate does not include any facts as to why the matter should be dealt with urgently.

Nowhere in the certificate of urgency does she make reference to any irreparable harm likely to be suffered if the conduct complained against is not stopped. The nature of the harm likely to be caused is not outlined. It does not clearly set out the legal nexus between the removal of the assets and the summons issued by the applicant in order to reveal what harm is apprehended.

The certificate of urgency stated that the “applicant acted with agency to file this application.” It is clear that reference to “agency” refers to urgency. This goes to show that legal practitioners do not check their work.

It is not clear from the application where the goods where being removed to.

F. Ndou did not show that she applied her mind to what was required of her. The certificate of urgency is hollow. Her conclusion that the matter is urgent has no legal basis.

Both the certificate of urgency and the founding affidavit do not speak to the harm that is likely to ensue if the conduct complained against is not stopped.

For an application to qualify as an anti-dissipation application, an applicant should show that if the conduct complained against is not stopped, the applicant will have a hollow judgment rendering the main application brutum fulmen.

This averment should be part of the certificate of service.

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Like in any other matter, the court dealing with such an application has a wide discretion which it must exercise judiciously and would be expected to cautiously weigh the competing interests of the parties.

The applicant seeks an order interdicting the respondent from removing assets from the farm on the premise that if he is allowed to do so, he may defeat the object of his claim.

What the applicant seeks is clearly an anti-dissipation order.

An application for an anti-dissipation interdict is invariably brought ex parte. This application was brought on notice and hence the normal rules of procedure apply.

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he, on his part, treated the matter as urgent.

This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145-02.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent, on a reading of his papers, that his matter is urgent.

A court seized with an urgent application is expected, on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

The court should, on the basis of the contents of the certificate of urgency alone, be able to ascertain whether the matter is urgent.

The certificate of urgency serves to inform and guide the court regarding the urgency of the matter. A certificate of urgency must place facts before the court with sufficient detail as to enable the court to decide on the urgency of the matter. It should outline details sufficient to inform the court of the nature of the application, the harm likely to be suffered if the matter is not dealt with on an urgent basis, and that the applicant treated the matter as urgent.

A legal practitioner certifying a matter urgent must state reasons for his own belief in the urgency of the matter. He must apply his mind to the facts and circumstances of the case and must allege facts that render the matter urgent justifying its placement on the urgent roll. In addition to the brief circumstances of the case, the certificate of urgency is required to state the following factors;

(a) The conduct complained against and the circumstances surrounding such conduct.

(b) When the applicant became aware of the facts giving rise to the complaint.

(c) What the applicant did after becoming aware of the conduct complained against.

(d) The nature of the application being made and relief sought to address the situation, which should be of an interim nature.

(e) The applicant must show that he treated the matter as urgent.

(f) He must show that if the conduct is not addressed, on an urgent basis, irreparable harm will occur to him.

(g) The nature and extent of the irreparable harm likely to be suffered and the consequences thereof require to be stated.

Failure to comply with the requirements governing the certificate of urgency may result in a matter being removed from the roll for lack of urgency.

The urgency of an application for an anti-dissipation interdict arises at the point when the need to bring the application for an interdict arises.

In a case where a litigant seeks to stop dissipation of assets on the premises that a respondent is removing assets, the need to act arises the moment the conduct complained against commences or when an applicant becomes aware of the conduct complained of.

Such a litigant is expected to show that he asserted himself and acted timeously in order to stop the harm or danger posed. He must also show that if the conduct complained against is not stopped he stands to suffer irreparable harm, in that, he will be left without assets or sufficient assets on which he expects to execute.

The respondent takes issue with the fact that the certificate of service was done by a legal practitioner from the applicant's law firm.

The Rules do not specify who should certify a matter urgent.

The mischief behind the rule that an urgent matter be certified urgent was to streamline matters being brought on an urgent basis and to eliminate abuse of the process.

A practice has arisen where a legal practitioner from a different firm is requested to certify the matter urgent. The objective was to seek an independent view of the matter and prevent abuse of the system.

There have been divergent views over the propriety of the certificate being done by a legal practitioner from the same firm bringing the application.

A school of thought has developed that a legal practitioner from the same law firm is usually conflicted and may pass matters as urgent when they are not and usually has an interest in such a matter and may not give an independent and professional view of the matter.

There are also challenges with requiring a legal practitioner from a different law firm to certify a matter. The reality is simply that some legal practitioners may simply be un-interested in the matter resulting in them just signing certificates prepared by a colleague without applying their minds to the contents.

When one looks at the state of certificates that come before the courts, that conclusion is inescapable.

Another school of thought is that the certificate of urgency should be done away with as it has seized to be useful to the court.

I am of the view that a certificate of urgency is crucial as it aids the court to streamline and recognise urgent matters. What is essential is that the certificate meets the criteria and is crafted in such a manner that it assists the court in the decision it has to make.

A matter should not be certified urgent as a matter of course.

Legal practitioners certifying matters urgent should bear in mind the responsibility and duty they have and such is to the court alone. Legal practitioners are expected to address their minds to the contents of the certificate and ensure that it meets the requirements. It should not matter who certifies a matter urgent for as long as the same legal practitioner bringing the application does not certify the matter as urgent.

The certificate of urgency filed in support of this application was done by Felicity Ndou. She is from the same legal firm representing the applicant.

My view is that this alone is not fatal to the application. What F. Ndou ought to have done is to ensure that the certificate meets the standards expected.

The certificate of urgency does not comply with Rule 244 and is defective.

The certificate is lacking in particularity regarding the facts and circumstances surrounding urgency. It is not clear from the certificate that the interdict sought is an anti-dissipation order.

Whilst the certificate speaks to the claim in the summons, and states that the respondent started to remove joint venture agricultural equipment from the farm after he learnt of the claim, the certificate does not include any facts as to why the matter should be dealt with urgently.

Nowhere in the certificate of urgency does she make reference to any irreparable harm likely to be suffered if the conduct complained against is not stopped. The nature of the harm likely to be caused is not outlined. It does not clearly set out the legal nexus between the removal of the assets and the summons issued by the applicant in order to reveal what harm is apprehended.

The certificate of urgency stated that the “applicant acted with agency to file this application.” It is clear that reference to “agency” refers to urgency. This goes to show that legal practitioners do not check their work.

It is not clear from the application where the goods where being removed to.

F. Ndou did not show that she applied her mind to what was required of her. The certificate of urgency is hollow. Her conclusion that the matter is urgent has no legal basis.

Both the certificate of urgency and the founding affidavit do not speak to the harm that is likely to ensue if the conduct complained against is not stopped.

For an application to qualify as an anti-dissipation application, an applicant should show that if the conduct complained against is not stopped, the applicant will have a hollow judgment rendering the main application brutum fulmen.

This averment should be part of the certificate of service.

Division of Co-Ownership Assets re: Dissolution, Identification, Alienation or Disposal and the Actio Communi Dividundo


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Like in any other matter, the court dealing with such an application has a wide discretion which it must exercise judiciously and would be expected to cautiously weigh the competing interests of the parties.

The applicant seeks an order interdicting the respondent from removing assets from the farm on the premise that if he is allowed to do so, he may defeat the object of his claim.

What the applicant seeks is clearly an anti-dissipation order.

An application for an anti-dissipation interdict is invariably brought ex parte. This application was brought on notice and hence the normal rules of procedure apply.

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he, on his part, treated the matter as urgent.

This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145-02.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent, on a reading of his papers, that his matter is urgent.

A court seized with an urgent application is expected, on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

The court should, on the basis of the contents of the certificate of urgency alone, be able to ascertain whether the matter is urgent.

The certificate of urgency serves to inform and guide the court regarding the urgency of the matter. A certificate of urgency must place facts before the court with sufficient detail as to enable the court to decide on the urgency of the matter. It should outline details sufficient to inform the court of the nature of the application, the harm likely to be suffered if the matter is not dealt with on an urgent basis, and that the applicant treated the matter as urgent.

A legal practitioner certifying a matter urgent must state reasons for his own belief in the urgency of the matter. He must apply his mind to the facts and circumstances of the case and must allege facts that render the matter urgent justifying its placement on the urgent roll. In addition to the brief circumstances of the case, the certificate of urgency is required to state the following factors;

(a) The conduct complained against and the circumstances surrounding such conduct.

(b) When the applicant became aware of the facts giving rise to the complaint.

(c) What the applicant did after becoming aware of the conduct complained against.

(d) The nature of the application being made and relief sought to address the situation, which should be of an interim nature.

(e) The applicant must show that he treated the matter as urgent.

(f) He must show that if the conduct is not addressed, on an urgent basis, irreparable harm will occur to him.

(g) The nature and extent of the irreparable harm likely to be suffered and the consequences thereof require to be stated.

Failure to comply with the requirements governing the certificate of urgency may result in a matter being removed from the roll for lack of urgency.

The urgency of an application for an anti-dissipation interdict arises at the point when the need to bring the application for an interdict arises.

In a case where a litigant seeks to stop dissipation of assets on the premises that a respondent is removing assets, the need to act arises the moment the conduct complained against commences or when an applicant becomes aware of the conduct complained of.

Such a litigant is expected to show that he asserted himself and acted timeously in order to stop the harm or danger posed. He must also show that if the conduct complained against is not stopped he stands to suffer irreparable harm, in that, he will be left without assets or sufficient assets on which he expects to execute.

The respondent takes issue with the fact that the certificate of service was done by a legal practitioner from the applicant's law firm.

The Rules do not specify who should certify a matter urgent.

The mischief behind the rule that an urgent matter be certified urgent was to streamline matters being brought on an urgent basis and to eliminate abuse of the process.

A practice has arisen where a legal practitioner from a different firm is requested to certify the matter urgent. The objective was to seek an independent view of the matter and prevent abuse of the system.

There have been divergent views over the propriety of the certificate being done by a legal practitioner from the same firm bringing the application.

A school of thought has developed that a legal practitioner from the same law firm is usually conflicted and may pass matters as urgent when they are not and usually has an interest in such a matter and may not give an independent and professional view of the matter.

There are also challenges with requiring a legal practitioner from a different law firm to certify a matter. The reality is simply that some legal practitioners may simply be un-interested in the matter resulting in them just signing certificates prepared by a colleague without applying their minds to the contents.

When one looks at the state of certificates that come before the courts, that conclusion is inescapable.

Another school of thought is that the certificate of urgency should be done away with as it has seized to be useful to the court.

I am of the view that a certificate of urgency is crucial as it aids the court to streamline and recognise urgent matters. What is essential is that the certificate meets the criteria and is crafted in such a manner that it assists the court in the decision it has to make.

A matter should not be certified urgent as a matter of course.

Legal practitioners certifying matters urgent should bear in mind the responsibility and duty they have and such is to the court alone. Legal practitioners are expected to address their minds to the contents of the certificate and ensure that it meets the requirements. It should not matter who certifies a matter urgent for as long as the same legal practitioner bringing the application does not certify the matter as urgent.

The certificate of urgency filed in support of this application was done by Felicity Ndou. She is from the same legal firm representing the applicant.

My view is that this alone is not fatal to the application. What F. Ndou ought to have done is to ensure that the certificate meets the standards expected.

The certificate of urgency does not comply with Rule 244 and is defective.

The certificate is lacking in particularity regarding the facts and circumstances surrounding urgency. It is not clear from the certificate that the interdict sought is an anti-dissipation order.

Whilst the certificate speaks to the claim in the summons, and states that the respondent started to remove joint venture agricultural equipment from the farm after he learnt of the claim, the certificate does not include any facts as to why the matter should be dealt with urgently.

Nowhere in the certificate of urgency does she make reference to any irreparable harm likely to be suffered if the conduct complained against is not stopped. The nature of the harm likely to be caused is not outlined. It does not clearly set out the legal nexus between the removal of the assets and the summons issued by the applicant in order to reveal what harm is apprehended.

The certificate of urgency stated that the “applicant acted with agency to file this application.” It is clear that reference to “agency” refers to urgency. This goes to show that legal practitioners do not check their work.

It is not clear from the application where the goods where being removed to.

F. Ndou did not show that she applied her mind to what was required of her. The certificate of urgency is hollow. Her conclusion that the matter is urgent has no legal basis.

Both the certificate of urgency and the founding affidavit do not speak to the harm that is likely to ensue if the conduct complained against is not stopped.

For an application to qualify as an anti-dissipation application, an applicant should show that if the conduct complained against is not stopped, the applicant will have a hollow judgment rendering the main application brutum fulmen.

This averment should be part of the certificate of service.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016.

The matter was allocated to me on 15 July 2016.

There is no explanation from the Registrar why the application was only placed before me only then.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Res Litigiosa, Caveats, the Anti-Dissipation Interdict and Liability for Disposal of Encumbered Property


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Like in any other matter, the court dealing with such an application has a wide discretion which it must exercise judiciously and would be expected to cautiously weigh the competing interests of the parties.

The applicant seeks an order interdicting the respondent from removing assets from the farm on the premise that if he is allowed to do so, he may defeat the object of his claim.

What the applicant seeks is clearly an anti-dissipation order.

An application for an anti-dissipation interdict is invariably brought ex parte. This application was brought on notice and hence the normal rules of procedure apply.

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he, on his part, treated the matter as urgent.

This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145-02.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent, on a reading of his papers, that his matter is urgent.

A court seized with an urgent application is expected, on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

The court should, on the basis of the contents of the certificate of urgency alone, be able to ascertain whether the matter is urgent.

The certificate of urgency serves to inform and guide the court regarding the urgency of the matter. A certificate of urgency must place facts before the court with sufficient detail as to enable the court to decide on the urgency of the matter. It should outline details sufficient to inform the court of the nature of the application, the harm likely to be suffered if the matter is not dealt with on an urgent basis, and that the applicant treated the matter as urgent.

A legal practitioner certifying a matter urgent must state reasons for his own belief in the urgency of the matter. He must apply his mind to the facts and circumstances of the case and must allege facts that render the matter urgent justifying its placement on the urgent roll. In addition to the brief circumstances of the case, the certificate of urgency is required to state the following factors;

(a) The conduct complained against and the circumstances surrounding such conduct.

(b) When the applicant became aware of the facts giving rise to the complaint.

(c) What the applicant did after becoming aware of the conduct complained against.

(d) The nature of the application being made and relief sought to address the situation, which should be of an interim nature.

(e) The applicant must show that he treated the matter as urgent.

(f) He must show that if the conduct is not addressed, on an urgent basis, irreparable harm will occur to him.

(g) The nature and extent of the irreparable harm likely to be suffered and the consequences thereof require to be stated.

Failure to comply with the requirements governing the certificate of urgency may result in a matter being removed from the roll for lack of urgency.

The urgency of an application for an anti-dissipation interdict arises at the point when the need to bring the application for an interdict arises.

In a case where a litigant seeks to stop dissipation of assets on the premises that a respondent is removing assets, the need to act arises the moment the conduct complained against commences or when an applicant becomes aware of the conduct complained of.

Such a litigant is expected to show that he asserted himself and acted timeously in order to stop the harm or danger posed. He must also show that if the conduct complained against is not stopped he stands to suffer irreparable harm, in that, he will be left without assets or sufficient assets on which he expects to execute.

The respondent takes issue with the fact that the certificate of service was done by a legal practitioner from the applicant's law firm.

The Rules do not specify who should certify a matter urgent.

The mischief behind the rule that an urgent matter be certified urgent was to streamline matters being brought on an urgent basis and to eliminate abuse of the process.

A practice has arisen where a legal practitioner from a different firm is requested to certify the matter urgent. The objective was to seek an independent view of the matter and prevent abuse of the system.

There have been divergent views over the propriety of the certificate being done by a legal practitioner from the same firm bringing the application.

A school of thought has developed that a legal practitioner from the same law firm is usually conflicted and may pass matters as urgent when they are not and usually has an interest in such a matter and may not give an independent and professional view of the matter.

There are also challenges with requiring a legal practitioner from a different law firm to certify a matter. The reality is simply that some legal practitioners may simply be un-interested in the matter resulting in them just signing certificates prepared by a colleague without applying their minds to the contents.

When one looks at the state of certificates that come before the courts, that conclusion is inescapable.

Another school of thought is that the certificate of urgency should be done away with as it has seized to be useful to the court.

I am of the view that a certificate of urgency is crucial as it aids the court to streamline and recognise urgent matters. What is essential is that the certificate meets the criteria and is crafted in such a manner that it assists the court in the decision it has to make.

A matter should not be certified urgent as a matter of course.

Legal practitioners certifying matters urgent should bear in mind the responsibility and duty they have and such is to the court alone. Legal practitioners are expected to address their minds to the contents of the certificate and ensure that it meets the requirements. It should not matter who certifies a matter urgent for as long as the same legal practitioner bringing the application does not certify the matter as urgent.

The certificate of urgency filed in support of this application was done by Felicity Ndou. She is from the same legal firm representing the applicant.

My view is that this alone is not fatal to the application. What F. Ndou ought to have done is to ensure that the certificate meets the standards expected.

The certificate of urgency does not comply with Rule 244 and is defective.

The certificate is lacking in particularity regarding the facts and circumstances surrounding urgency. It is not clear from the certificate that the interdict sought is an anti-dissipation order.

Whilst the certificate speaks to the claim in the summons, and states that the respondent started to remove joint venture agricultural equipment from the farm after he learnt of the claim, the certificate does not include any facts as to why the matter should be dealt with urgently.

Nowhere in the certificate of urgency does she make reference to any irreparable harm likely to be suffered if the conduct complained against is not stopped. The nature of the harm likely to be caused is not outlined. It does not clearly set out the legal nexus between the removal of the assets and the summons issued by the applicant in order to reveal what harm is apprehended.

The certificate of urgency stated that the “applicant acted with agency to file this application.” It is clear that reference to “agency” refers to urgency. This goes to show that legal practitioners do not check their work.

It is not clear from the application where the goods where being removed to.

F. Ndou did not show that she applied her mind to what was required of her. The certificate of urgency is hollow. Her conclusion that the matter is urgent has no legal basis.

Both the certificate of urgency and the founding affidavit do not speak to the harm that is likely to ensue if the conduct complained against is not stopped.

For an application to qualify as an anti-dissipation application, an applicant should show that if the conduct complained against is not stopped, the applicant will have a hollow judgment rendering the main application brutum fulmen.

This averment should be part of the certificate of service.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016.

The matter was allocated to me on 15 July 2016.

There is no explanation from the Registrar why the application was only placed before me only then.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Interim Interdict or Final Order re: Relief Conflicting with Statutes, Extant Court Orders & Prima Facie Lawful Conduct


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Urgency re: Forum Shopping, Contemptuous, Mala Fide, Ill-Advised, Frivolous and Abuse of Court Process Proceedings


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Urgency re: Ex Parte Applications, Proceedings Without Notice and Proceedings Founded Upon Material Non-Disclosures


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Findings of Fact re: Witness Testimony iro Candidness with the Court and Deceptive or Misleading Evidence


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Pleadings re: Forum Shopping or Double-Dipping


The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

Urgent Application

DUBE J: The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows.

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was in terms of the agreement, to supply farming equipment including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA 5th ed, Herbstein and Van Winsen define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W), 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The appeal court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. Stegmann J called it an anti- dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709/15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40/14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner or holder of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension that by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Like in any other matter, the court dealing with such an application has a wide discretion which it must exercise judiciously and would be expected to cautiously weigh the competing interests of the parties.

The applicant seeks an order interdicting the respondent from removing assets from the farm on the premise that if he is allowed to do so, he may defeat the object of his claim.

What the applicant seeks is clearly an anti-dissipation order.

An application for an anti-dissipation interdict is invariably brought ex parte. This application was brought on notice and hence the normal rules of procedure apply.

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he on his part treated the matter as urgent. This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145/2002.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent on a reading of his papers that his matter is urgent.

A court seized with an urgent application is expected on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

The court should, on the basis of the contents of the certificate of urgency alone, be able to ascertain whether the matter is urgent.

The certificate of urgency serves to inform and guide the court regarding the urgency of the matter. A certificate of urgency must place facts before the court with sufficient detail as to enable the court to decide on the urgency of the matter. It should outline details sufficient to inform the court of the nature of the application, the harm likely to be suffered if the matter is not dealt with on an urgent basis and that the applicant treated the matter as urgent.

A legal practitioner certifying a matter urgent must state reasons for his own belief in the urgency of the matter. He must apply his mind to the facts and circumstances of the case and must allege facts that render the matter urgent justifying its placement on the urgent roll. In addition to the brief circumstances of the case, the certificate of urgency is required to state the following factors;

(a) The conduct complained against and the circumstances surrounding such conduct.

(b) When the applicant became aware of the facts giving rise to the complaint.

(c) What the applicant did after becoming aware of the conduct complained against.

(d) The nature of the application being made and relief sought to address the situation which should be of an interim nature.

(e) The applicant must show that he treated the matter as urgent.

(f) He must show that if the conduct is not addressed on an urgent basis, irreparable harm will occur to him.

(g) The nature and extent of the irreparable harm likely to be suffered and the consequences thereof require to be stated.

Failure to comply with the requirements governing the certificate of urgency may result in a matter being removed from the roll for lack of urgency.

The urgency of an application for an anti-dissipation interdict arises at the point when the need to bring the application for an interdict arises.

In a case where a litigant seeks to stop dissipation of assets on the premises that a respondent is removing assets, the need to act arises the moment the conduct complained against commences or when an applicant becomes aware of the conduct complained of.

Such a litigant is expected to show that he asserted himself and acted timeously in order to stop the harm or danger posed. He must also show that if the conduct complained against is not stopped he stands to suffer irreparable harm in that, he will be left without assets or sufficient assets on which he expects to execute.

The respondent takes issue with the fact that the certificate of service was done by a legal practitioner from the applicant's law firm.

The rules do not specify who should certify a matter urgent.

The mischief behind the rule that an urgent matter be certified urgent was to streamline matters being brought on an urgent basis and to eliminate abuse of the process.

A practice has arisen where a legal practitioner from a different firm is requested to certify the matter urgent. The objective was to seek an independent view of the matter and prevent abuse of the system.

There have been divergent views over the propriety of the certificate being done by a legal practitioner from the same firm bringing the application.

A school of thought has developed that a legal practitioner from the same law firm is usually conflicted and may pass matters as urgent when they are not and usually has an interest in such a matter and may not give an independent and professional view of the matter. There are also challenges with requiring a legal practitioner from a different law firm to certify a matter. The reality is simply that some legal practitioners may simply be uninterested in the matter resulting in them just signing certificates prepared by a colleague without applying their minds to the contents.

When one looks at the state of certificates that come before the courts, that conclusion is inescapable.

Another school of thought is that the certificate of urgency should be done away with as it has seized to be useful to the court.

I am of the view that a certificate of urgency is crucial as it aids the court to streamline and recognise urgent matters. What is essential is that the certificate meets the criteria and is crafted in such a manner that it assists the court in the decision it has to make.

A matter should not be certified urgent as a matter of course.

Legal practitioners certifying matters urgent should bear in mind the responsibility and duty they have and such is to the court alone. Legal practitioners are expected to address their minds to the contents of the certificate and ensure that it meets the requirements. It should not matter who certifies a matter urgent for as long as the same legal practitioner bringing the application does not certify the matter as urgent.

The certificate of urgency filed in support of this application was done by Felicity Ndou. She is from the same legal firm representing the applicant.

My view is that this alone is not fatal to the application. What F. Ndou ought to have done is to ensure that the certificate meets the standards expected.

The certificate of urgency does not comply with Rule 244 and is defective.

The certificate is lacking in particularity regarding the facts and circumstances surrounding urgency. It is not clear from the certificate that the interdict sought is an anti-dissipation order.

Whilst the certificate speaks to the claim in the summons, and states that the respondent started to remove joint venture agricultural equipment from the farm after he learnt of the claim, the certificate does not include any facts as to why the matter should be dealt with urgently.

Nowhere in the certificate of urgency does she make reference to any irreparable harm likely to be suffered if the conduct complained against is not stopped. The nature of the harm likely to be caused is not outlined. It does not clearly set out the legal nexus between the removal of the assets and the summons issued by the applicant in order to reveal what harm is apprehended.

The certificate of urgency stated that the “applicant acted with agency to file this application”. It is clear that reference to “agency” refers to urgency. This goes to show that legal practitioners do not check their work.

It is not clear from the application where the goods where being removed to.

F. Ndou did not show that she applied her mind to what was required of her. The certificate of urgency is hollow. Her conclusion that the matter is urgent has no legal basis.

Both the certificate of urgency and the founding affidavit do not speak to the harm that is likely to ensue if the conduct complained against is not stopped.

For an application to qualify as an anti-dissipation application an applicant should show that if the conduct complained against is not stopped, the applicant will have a hollow judgment rendering the main application brutum fulmen.

This averment should be part of the certificate of service.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realised that the respondent was removing partnership equipment from the farm, namely tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016.

The matter was allocated to me on 15 July 2015.

There is no explanation from the Registrar why the application was only placed before me only then.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted further that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In para 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the magistrate's court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.







Macharaga Law Chambers, applicant's legal practitioners

Mutangamira & Associates, respondent's legal practitioners

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