Opposed
Application
MAFUSIRE
J:
The
first applicant was a duly registered co-operative society. The
parties to this matter were two factions of its membership.
The
one faction comprised applicants 2 to 6.
The
other was respondents 1 to 5.
Both
sides were fighting for the control of the first applicant.
Both
claimed to be the legitimate management committee of the first
applicant. Both claimed to have been duly installed in office
following due process.
For
applicants 2 to 6, their claim to office was an alleged election
allegedly won by them in September 2014. For the respondents, their
claim to office was an alleged vote of no confidence against
applicants 2 to 6 allegedly passed by the majority of the first
applicant's members in April 2015.
The
case before me was the return date of a provisional order issued by
this court [per Tagu J] on 27 June 2015. It read [words in
parenthesis added to somewhat straighten it out]:
“TERMS
OF [FINAL] ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made on the following terms:
1.
That 1st
to 5th
respondents be and are hereby interdicted, restrained and barred from
conducting themselves as the managing committee of the 1st
applicant pending the finalization of the Supreme [Court] Case No.
SC267/15.
2.
The 1st
to 5th
respondents jointly and severally with [the] one paying [and] the
other[s] to be absolved be and are hereby ordered to pay [the]
cost[s] of this application [on an] attorney and client scale.
INTERIM
RELIEF GRANTED
1.
Pending the finalization of this provisional order, the 1st
to 5th
respondents be and are hereby interdicted, barred and restrained from
holding any meetings for the purposes of running or deliberating on
the management/or affairs of the applicants.”
During
argument, it was apparent to me that the fight had nothing to do with
the interests of the first applicant per
se.
It had everything to do with the protection of individual interests
and the preservation of egos. The interests of the first applicant
seemed to have been consigned to the periphery.
Even
though both sides purported to canvass the requirements for an
interdict, namely a prima
facie
or clear right; a well-grounded apprehension of an irreparable harm;
an absence of an alternative remedy and the balance of convenience
should the interdict be granted or refused [see Setlogelo
v Setlogelo;
Tribac
(Pvt) Ltd v Tobacco Marketing Board
and
Universal
Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor],
it was clear to me that this was a mere perfunctory exercise.
I
wondered how, if the focus of the legal contest was really the first
applicant, either of the parties could legitimately claim a
right
that could be harmed
irreparably,
with no other alternative
remedy
and how the balance
of convenience
could be said to favour either of them were I to confirm or discharge
the provisional order.
It
was just not adding up.
But
the protagonists having come to court, the outcome would have to be
either win or lose, for one or other of them.
However,
before reaching that point of finality, I suggested an alternative
course of action, which, if acceptable and followed through, could
produce an outcome that should be acceptable or binding to all.
It
was this.
Could
both sides consider going back and hold a fresh election within a
reasonable period of time - say ten days from the date of any
directive that I might give - and the winners of such an election be
accepted as the legitimate management committee of the first
applicant?
The
modalities of running such an election could always be worked out
later on if the suggestion was acceptable in principle.
At
first my suggestion was, through counsel, enthusiastically accepted
by both sides. So the matter was adjourned to another day to allow
for further consultations and the crafting of an order by consent.
On
resumption, a further postponement was sought and granted for the
purposes of putting final touches to the deed of settlement and the
draft consent order.
However,
as a precautionary measure, I insisted on a deadline for the filing
of the draft order by consent failing which I would hand down my
decision on the merits.
I
told the parties that I had come to a decision on the merits but that
I would much rather defer it to their deed of settlement.
It
is always preferable for litigants to settle their disputes amicably
rather than through a court order which neither party might find
palatable.
Thus,
it was agreed that unless the deed of settlement was filed by 4
December 2015, I would proceed to hand down my judgment.
However,
well before that date, I received communication to the effect that
there was no chance of an out of court settlement as the parties were
wide apart from each other and that therefore they would be most
happy to receive my judgment on the merits.
So
this here is my judgment on the merits.
I
found the conduct of the applicants unacceptable. I am referring to
the applicants 2 to 5.
The
first applicant, the soul for which both sides were fighting to
control, had nothing to do with this wrangle.
The
applicants conduct that I found unacceptable was that they were
guilty of forum-shopping and material non-disclosure.
The
provisional order by Tagu J on 27 June 2015, the confirmation for
which was before me, was the second in a space of twenty-two or so
days.
On
4 May 2015 this court, per Matanda-Moyo J, had dismissed the same
application.
The
applicants did not disclose this in their founding papers. So the
learned Tagu J must obviously have been unaware of this information
when he granted the provisional order.
I
was told that the respondents were by then not represented. They had
filed no opposing papers. They only did so afterwards when they were
opposing the confirmation.
In
my view, a party that conceals material information must be unworthy
of the protection or assistance of the court. If you seek relief, you
must take the court into your confidence, laying bare all the
relevant facts on the matter, even those that you may perceive to be
adverse to the relief that you seek.
As
long ago as 1849, an English judge, WIGRAM VC, put it this way in a
case
that was cited with approval in the English case of Rex
v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de
Polignac
(1917) 1 KB 486, at p514:
“A
plaintiff applying ex parte comes … under a contract with the Court
that he will state the whole case fully and fairly to the Court. If
he fails to do that, and the Court finds, when the other party
applies to dissolve the injunction, that any material fact has been
suppressed or not properly brought forward, the plaintiff is told
that the Court will not decide on the merits, and that, as he has
broken faith with the Court, the injunction must go.”
In
the Ex
Parte Princes Edmond de Polignac
case above, the applicant, a wealthy American lady who had been twice
married to French subjects and was domiciled in France, had obtained
an injunction against the collectors of revenue in Kensington, one of
the parishes in England. The basis of the injunction had been that
she was neither domiciled nor ordinarily resident in England, but
Paris, France, and that the house, in a certain locality in that
parish, which she frequently visited as her brother's guest for
very short periods of time, allegedly not exceeding six months per
any one visit, and upon which the local collectors of revenue had
based her liability for income tax, was, in fact, owned by her
brother. However, a former employee of her solicitors who had been
disgruntled for having lost his job, hit back by supplying the
collectors of revenue with information and documents showing that the
house was practically owned by the lady and that the brother was no
more than a mere front.
The
information that subsequently came to light, and which the lady was
subsequently forced to admit, was that, among other things, she had
been the one that had provided the purchase price for the house; she
had been the one that had bought the furniture in it; she had been
the one that had paid all the rates and taxes for the property; she
had been the one that maintained it on a regular basis and that she
had been the one that received the rentals from it.
On
the return date, the King's Bench Division refused to hear the
matter on the merits and discharged the rule nisi
on the basis that the lady had concealed material facts when she had
obtained the injunction ex
parte.
Viscount
Reading CJ, delivering the judgment of the court said:
“Where
an ex parte application has been made to this Court for a rule nisi
or other process, if the court comes to the conclusion that the
affidavit in support of the application was not candid and did not
fairly state the facts, but stated them in such a way as to mislead
the Court as to the facts, the Court ought, for its own protection
and to prevent an abuse of its process, to refuse to proceed any
further with the examination of the merits. This is a power inherent
in the Court, but one which should only be used in cases which bring
conviction to the mind of the Court that it has been deceived. Before
coming to this conclusion a careful examination will be made of the
facts as they are and as they have been stated in the applicant's
affidavit, and everything will be heard that can be urged to
influence the view of the Court when it reads the affidavit and knows
the true facts. But if the result of this examination and hearing is
to leave no doubt that the Court has been deceived, then it will
refuse to hear anything further from the applicant in a proceeding
which has only been set in motion by means of a misleading
affidavit.”
The
applicant appealed. But she lost. The decision of the King's Bench
Division was confirmed.
It
was stressed by the Court of Appeal that it was incumbent in an ex
parte
application that the applicant should make the fullest possible
disclosure of all relevant facts, failing which he cannot obtain any
advantage from the proceedings and that he will be deprived of any
advantage he may have already obtained.
The
court further said that an application for a special injunction is
governed by the same principles which govern insurances. Both are
matters that require the utmost degree of good faith, or uberrima
fides.
In
the case of insurance, if the insured should conceal anything that
may influence the rate of premium, whether or not he is conscious of
it, the policy is entirely vitiated.
The
same applies to applications for injunctions made ex
parte.
Failure to disclose material facts disentitles the applicant to the
relief which he seeks, or disentitles him to keep the one he had
already obtained. The court will not go into the merits.
It
is also the law in South Africa that the utmost good faith must be
observed by litigants making ex
parte
applications by placing before the court material facts that might
affect the granting of the provisional order: see HERBSTEIN & VAN
WINSEN The
Civil Practice of the High Courts of South Africa;
De
Jager v Heilbron & Ors;
Schlesinger
v Schlesinger
and MV
Rizcun Trader [4] MV Rizcun Trader v Manley Appledore Shipping Ltd.
In
casu,
the applicants do not seem to have learnt a lesson.
Matanda-Moyo
J dismissed their first urgent chamber application for non-disclosure
of material facts. They had concealed the fact that the respondents
claim to office was on the basis of the vote of no confidence of
April 2015. At p3 of the cyclostyled judgment, Her Ladyship said
this:
“The
applicants have not been candid with this court in the present
application. They distorted the facts. The applicants were aware that
an emergency meeting was called for, on 24 April 2015 where a vote of
no confidence was passed on the second to the sixth applicants but
decided to mislead this court by submitting that the first to fifth
respondents 'unlawfully declared themselves the new management
committee for the first applicant.' Such facts were not correct. In
the hearing it also became apparent that the second to the sixth
applicants were advised of the meeting but decided not to attend.”
It
seems the learned judge found nothing wrong with the vote of no
confidence. Among other things, she found that the meeting that
passed it had been properly convened and properly constituted in
terms of the Co-operative Societies Act, [Chapter
24: 05].
She then concluded as follows:
“The
withholding of such information by the applicants was a ploy to
mislead this court and to keep this court in the dark and trying to
make this court believe that the first to the fifth respondents
simply woke up and declared themselves the new management committee
of the first applicant through a newspaper article of 29 April 2015.
It is settled law that a person who approaches the court for relief
ought to be candid with the court. Such an applicant ought to
disclose all the material or important facts and refrain from
suppressing facts within his knowledge. Once found out such an
applicant ought to be denied the relief sought.”
The
learned judge then cited the case of Rex
v Kensington Income Tax Commissioners
above as authority for her decision to dispense with the merits of
the dispute.
However,
with all due respect to my learned sister judge, the principle laid
down in the English authority aforesaid related to ex
parte
applications, not ordinary court applications or chamber applications
on notice of motion.
An
ex
parte
application is one made in the absence of the party who will be
affected by the order that the court is asked to grant. It is in
respect of such applications that the uberrima
fides
rule was said to apply.
In
Schlesinger,
(supra),
it was said
there are three principles of the uberrima
fides
rule as they apply to ex
parte
applications, namely:
[1]
that all the material facts which might influence the court in coming
to a decision must be disclosed;
[2]
that non-disclosure, or suppression of such facts need not be wilful
or mala
fide
to incur the penalty of rescission of the order obtained ex
parte;
and
[3]
that the court, on being apprised of the true facts, has a discretion
to confirm or discharge the provisional order.
In
Trakman
NO v Livshitz
the South African Appellate Division refused to extend the uberrima
fides
rule of ex
parte
applications to ordinary opposed motion proceedings on the basis
there was no authority for such an extension and that there was no
sound reason for doing so. The court said opposed motion proceedings
could not be dismissed solely on the ground that the applicant had
failed to disclose fully or fairly all material facts.
Delivering
the judgment of the five judges of the Appellate Division, Smalberger
JA said:
“It
is trite law that in ex
parte
applications the utmost good faith must be observed by an applicant.
A failure to disclose fully and fairly all material facts known to
him (or her) may lead, in the exercise of the Court's discretion,
to the dismissal of the application on that ground alone (see for
example, Estate
Logie v Priest
1926 AD 312; Schlesinger
v Schlesinger
1979 [4] SA 342 [W] at 348E–350B]. I know of no authority, and Mr
Pincus
was unable to refer us to any, which extends that principle to motion
proceedings and would justify the dismissal of an opposed application
[irrespective of the merits thereof] for the reasons given by the
Judge a
quo.
Nor is there any sound reason for so extending the principle.
Material non-disclosure, mala
fides,
dishonesty and the like in relation to motion proceedings may, and in
most instances, should be dealt with by making an adverse or punitive
order as to costs but cannot, in my view, serve to deny a litigant
relief to which he would otherwise have been entitled. No
justification therefore existed for the dismissal of the application
on the alternative basis.”
In
that case the court a
quo
had dismissed an application for review on the ground that the
applicant lacked locus
standi
because he had already ceded his rights of action to someone else.
His argument that there had been a re-cession of the cause of action
back to him had been dismissed by the court as a lie. The court had
also dismissed, as shown above, the application on the alternative
basis of non-disclosure of material facts, namely the cession of
rights aforesaid.
With
due respect, I have found the approach of the South African Appellate
Division in Trakman's
case non-persuasive.
I
am mindful that it was a decision of five judges of appeal.
But,
with all due respect, I have found no cogent justification for
restricting the uberrima
fides
rule strictly to ex
parte
applications only.
The
Appellate Court said there was no sound reason to extend the
principle to ordinary motion proceedings. But I also find none for
not extending it either.
In
my view, the underlying reason why an applicant may be non-suited
where he conceals material information from the court, as Viscount
Reading CJ said in Ex
Parte Edmond de Polignac, supra,
is to protect the court itself.
That
is, in my view, to protect its integrity. It is to prevent an abuse
of its process.
There
are several instances when a litigant's infraction or misconduct is
so gross as to warrant the court withdrawing its jurisdiction
altogether, in spite of the inherent power reposed in it to punish
such misconduct by a punitive order of costs. For example, a litigant
coming to court with dirty hands has no right of audience. A litigant
guilty of contempt of court may not be heard. A litigant that
continuously overburdens the courts with endless frivolous or
spurious suits may be silenced perpetually.
In
my view, the court's decision to refuse to entertain a matter on
the merits because of some wrong done by the petitioning litigant
must, to a large extent, depend on the nature of the litigant's
misconduct and the circumstances surrounding it.
In
Trakman,
it turned out that the issue of the cession, although not disclosed
in the court a
quo,
had been common knowledge, not only to the litigants themselves, but
also to virtually all the other interested parties. That the cession
had not been disclosed had not been an issue for contest. It had not
been fully debated. Only the aspect of locus
standi
had been an issue. Thus, in my view, the non-disclosure of the
cession had not been such a material aspect as would have forfeited
the applicant's right to be heard on the merits.
In
contrast, in the present matter, not only did the applicants conceal
before Tagu J the question of the vote of no confidence against them,
but also, and crucially, the fact that some twenty two days before,
this same court, per Matanda Moyo J, had dismissed the same
application on the basis, it seems, of the same failure to disclose
the aspect of the vote of no confidence.
Because
of that non-disclosure, what the applicants had initially failed to
get before Matanda-Moyo J they had subsequently got before Tagu J.
This,
to me, amounted to forum-shopping.
It
was conduct that, in my view, was so culpably iniquitous as to
forfeit the applicants right to be heard on the merits. It was
conduct that gnawed right at the heart of the integrity of the court.
Furthermore,
in an urgent chamber application under Order 32 of the Rules of this
court, particularly one accompanied by a certificate of urgency as
prescribed by Rule 242[2][b], a judge may well decide the case solely
on the basis of the applicant's papers if he is satisfied that the
matter is indeed urgent and that a prima
facie
case for relief has been made out.
The
respondent's right to be heard in terms of the audi
alteram partem
rule of natural justice may be deferred to the return date.
But
immeasurable damage may be caused if the applicant's papers are
misleading by reason of, for example, a material non-disclosure.
The
almost inflexible rule of practice by the judges of this court to
invariably insist on service of the urgent chamber application on the
respondent before the matter is heard does not absolve the applicant
from disclosing all the material facts surrounding the dispute.
Therefore,
I would discharge the provisional order of this court on 27 June 2015
on the basis of non-disclosure of material facts by the applicant and
without going into the merits.
However,
in case I should be wrong to dismiss the application without deciding
the merits, I also consider that, on those merits, the applicants had
no case.
None
of the requirements for an interdict was established.
This
judgment is not about whether the vote of no confidence was right or
wrong; procedural or unprocedural. That issue was not before me. So
until the vote of no confidence by the respondents against applicants
2 to 6 is found to have been unlawful and is set aside, the
applicants 2 to 6 cannot make claim to any right to be the legitimate
management committee of the first applicant.
The
applicants justification for bringing the same application before
another judge [Tagu J] in a space of less than a month was that, as I
understood it, and in my own words, they had appealed to the Supreme
Court against the decision of Matanda-Moyo J. It was argued that, in
accordance with the common law rule that an appeal suspends the
decision appealed against, the judgment of Her Ladyship had
automatically been suspended and that the status quo
ante
obtained.
Mr
Chinamhora,
for the applicants, submitted that the pendency of an appeal finds a
prima
facie
right. For support, he referred to the case of Timothy
Sean White v Zenzo Ntuliki
HB 147/15.
The
applicants position was that unless the respondents were barred, they
would continue to purport to run the affairs of the first applicant,
yet the judgment of Matanda-Moyo J had been suspended by the appeal.
Unless they obtained leave to execute, the argument concluded, the
respondents had no business purporting to be the management committee
of the first applicant.
The
applicants argument on this point was manifestly scrambled.
The
respondents claim to office was not by virtue of the judgment of
Matanda-Moyo J. It was by virtue of the vote of no confidence on 25
April 2015. The learned judge Tagu J did not decide the issue.
Neither have I. It was simply not before us.
I
accept that in paragraph 7 of their notice of opposition, the
respondents stated unequivocally that they had been voted into office
following the passing of the vote of no confidence. I am also aware
that the applicants purported to refute that claim in their answering
affidavit. But they merely made a fleeting reference to it. Through
the fourth applicant [Mr
Marauka”],
here is how the applicants responded:
“4.
AD PARA 7–12
The
purported mandate of the 1st
to 5th
respondents was later revoked at a meeting of 1st
Respondent's [sic]
members, see Annexure
A
and this position remains the true position to date and unchallenged
clearly putting pad [sic]
to the issue of whether or not the Respondents have a mandate to run
1st
Applicant's affairs.”
But
there was no Annexure A attached. There was nothing more said about
the so-called meeting of “…
the 1st Respondent's members …”
that allegedly had revoked the respondents mandate and had put paid
to respondents ambition to control the affairs of the first
applicant.
But most importantly, an application stands or falls by its founding
papers.
In
Bayat
v Hansa
the principle was summarised as follows:
“[A]n
applicant for relief must [save in exceptional circumstances] make
his case and produce all the evidence he desires to use in support of
it, in his affidavits filed with the notice of motion, whether he is
moving ex
parte
or on notice to the respondent, and is not permitted to supplement it
in his replying affidavits [the purpose of which is to reply to
averments made by the respondent in his answering affidavits], still
less make a new case in his replying affidavits.”
It
is quite clear that the applicants in this case had no interest in
the court prying into the propriety of the vote of no confidence.
The
case of Timothy
Sean White
that Mr Chinamhora
referred to was irrelevant.
The
issue there was quite different. Therein the respondents had wanted
to execute a certain order of the Magistrate's Court despite an
appeal that was pending against it. This court barred them pending
the determination of the appeal. In
casu,
the respondents were not at all trying to execute any court order.
Even
if one accepts that the operation of the judgment of Matanda-Moyo J
was automatically suspended by the appeal against it, and that the
status quo
ante
obtained, the question is: what was this status quo
ante?
Mr
Chinamhora
conceded, quite correctly, that it was the vote of no confidence.
When
the parties appeared before Her Ladyship, the vote of no confidence
was the one obtaining. Evidently, the applicants did not wish to have
it adjudicated upon. They concealed it from the court. However, the
court picked it up, and, on the basis that it existed, but that it
had been deliberately concealed, the urgent chamber application was
dismissed. So the appeal, and the resultant suspension of Her
Ladyship's judgment, had no practical effect on the status quo
ante.
On
this basis alone, namely that even if it were to be accepted that
one's election into the management committee of a co-operative
society is a right accruing to oneself in one's personal capacity
for the purposes of an interdict, I would dismiss the application
because no such right has been established.
The
second requirement for an interdict is a
reasonable apprehension of an irreparable harm or injury.
In
my view, it was somewhat preposterous to suggest that there was a
reasonable apprehension of an irreparable harm if an interdict was
not granted to restrain the respondents from holding themselves out
as the management committee of the first applicant.
The
fear of an irreparable harm or injury should have been in relation to
the first applicant, the juristic person, not the applicants 2 to 5
personally.
The
nature of the harm was not identified, let alone the manner in which
it could be said to be irreparable.
If
the fear of harm was in relation to the applicants 2 to 5 personally,
then all the more reason why the application had to fail:
(i)
Firstly, the dispute could not have been about themselves personally.
(ii)
Secondly, and as I have already said, the nature of such harm, and
the respects in which it would be irreparable, were not at all spelt
out.
(iii)
Thirdly, it was the respondents that actually adverted to some form
of harm to the first applicant if the applicants 2 to 5 remained in
office. The respondents averred in their notice of opposition,
attaching the minutes of the meeting of 25 April 2015, that the
applicants 2 to 5 had been removed from office because of their
repeated mismanagement of the funds, assets and affairs of the first
applicant. They argued that returning the applicants 2 to 5 to office
would be a licence for them to continue embezzling the first
applicant's funds.
So,
on this second ground again, there was no basis for the applicants 2
to 5 seeking an interdict against the respondents.
The
third requirement for an interdict is the
absence of an alternative remedy.
In
casu
there was an alternative remedy. Co-operative societies are governed
by the Co-operative Societies Act, supra.
There is a dispute resolution mechanism set up by that Act. Section
115 of the Act reads as follows:
“115
Settlement of Disputes
[1]
If any dispute concerning the business of a registered society arises
—
[a]
within the society, whether between the society and any member, past
member or representative of a deceased member, or between members of
the society or the management or any supervisory committee; or
[b]………………………………………………..;
and
no settlement is reached within the society…, the dispute shall be
referred to the Registrar for decision.
[2]………………………………………………………..
[3]
Where a dispute has been referred to him in terms of subsection [1],
the Registrar may —[a]
settle
the dispute himself; or
[b]
refer the dispute for settlement to an arbitrator or arbitrators
appointed by him; or
[c]
refer the dispute to the Minister for decision.
[4]
For the purpose of settling a dispute in terms of paragraph (a)
of subsection (3), the Registrar may exercise any of the powers
conferred on him under section one
hundred and fourteen.
[5]
The Arbitration Act [Chapter
7:02]
shall apply in relation to any reference of a dispute to an
arbitrator or arbitrators in terms of paragraph (b)
of subsection (3).
[6]
Any person aggrieved by a decision made by —
[a]
the Registrar in settling a dispute in terms of paragraph (a)
of subsection (3); or
[b]
an arbitrator or arbitrators appointed in terms of paragraph (b)
of subsection (3);
may
appeal to the Minister within sixty days after being notified of the
decision, and the Minister may confirm, vary or set aside the
decision appealed against or make such other order in the matter as
he thinks appropriate.
116
Appeals to Administrative Court
[1]
Any person aggrieved by a decision made by the Minister in terms of
this Act may appeal against it to the Administrative Court within two
months after being notified of the decision.[2] For the purpose of
hearing appeals in terms of this Act, the Administrative Court shall
consist of a President of the Court and two assessors appointed by
the Minister from a list of not fewer than ten persons who have been
nominated by apex organizations and who are suitable for appointment
from their experience in co-operative matters.
[3]
Subject to the Administrative Court Act [Chapter
7:01]
the Administrative Court may in any appeal confirm, vary or set aside
the decision appealed against or make such other order in the matter
as the Court thinks just.”
With
such an elaborate dispute resolution mechanism, it could not possibly
lie in the mouth of the applicants to say that there was no other
alternative remedy.
So,
on this third ground again, the application for an interdict could
not succeed.
The
fourth requirement for an interdict is for an applicant to establish
that
the balance of convenience lies in its favour if the interdict is
granted.
In
casu,
the applicants failed to show this.
Both
sides claimed to be the legitimate management committee of the first
applicant. In their opposing affidavit the respondents claimed that
they were effectively in control since the alleged passing of the
vote of no confidence in April 2015. In the answering affidavit the
applicants strenuously denied this. In para 4[ii] of Marauka's
affidavit they said:
“….
[A]t no stage did the Respondents occupy the offices of the 1st
Applicant or attempt to run its affairs as alleged. It is further
denied that the respondents are the sitting management committee of
the 1st
Applicant and whatever meeting they hold purporting to represent the
interest of the 1st
Applicant are a nullity.”
This
was rather confusing.
If
the respondents had at no stage occupied the offices of the first
applicant, or even
attempted to run its affairs,
then what had been all the fuss about? What reasonable apprehension
of an irreparable injury had the applicants perceived? Why on earth
had they ever come to court?
But
on the contrary, it seemed to me that on a balance of probabilities,
the respondents must have assumed effective control of the first
applicant's affairs. That must have been what had stung the
applicants into action.
If
that was the case, then the balance of convenience favoured the
status quo
remaining until the applicants appeal had been determined by the
Supreme Court.
But
even if that was not the case, the applicants could still not succeed
on this ground because it was not established. The onus lay on them.
Therefore,
on all the grounds for an interdict, the applicants came short.
DISPOSITION
The
provisional order granted by this court on 27 June 2015 is hereby
discharged with costs against the applicants 2 to 5, jointly and
severally, the one paying the others to be absolved.
C
Chinyama & Partners,
applicants
legal
practitioners
Munangati
& Associates,
respondents
legal
practitioners
1.
1914
AD 221, at p227
2.
1996 [1] ZLR 289 [SC] at p391
3.
2000 [1] ZLR 234 [H] at p238
4.
Castelli
v Cook
(1849) 7 Hare 89, 94
5.
At p495-496
6.
5th
ed. Vol 1, at pp441-442
7.
1947 [2] SA 415
8.
1979 [4] 342, at p349
9.
2000 [3] SA 776 [C]
10.
At p349
11.
1995 [1] SA 282 [A]
12.
At p288E-H
13.
The reasons given by the Judge a quo, ROUX J, were, at p286H–I of
the Appellate Division's judgment: 'There
is a further consideration which relates to both the facts of the
review and costs. Since May 1986 the applicant [appellant] and his
attorney Kruger have had intimate and, as far as the other litigants
are concerned, exclusive knowledge of the cession. On his own or on
Kruger's advice, the applicant has misled this Court by his
silence. This silence becomes all the more sinister when the delaying
tactics of the applicant, as plaintiff, are taken into account. I
need not list all the procrastinations. There is ample evidence
before me to show sinister motives. The failure to disclose the
cession for six years is inexcusable. This failure is only consistent
with dishonesty. When dishonesty is harnessed to mislead the Court,
to harass the other litigants and to obtain undue advantage it will
be met with the sternest disapproval. Because of his behaviour I
would also dismiss the application....,.'
14.
1955 [3] SA 547 [N]
15.
At p553C-E