NDOU J: The
applicant seeks a provisional order in the following terms:
“Final
Order
It is ordered:
That the provisional order granted by this honourable court
be confirmed in the following manner:
1.
The
continued holding of applicant's goods after he had complied with all the
contractual obligations and paid ZIMRA clearance be and is hereby held to be
illegal.
2.
The
respondent be and is hereby ordered to pay for any damages to the goods which
may have occurred from the 7th of October 2009, when the goods were
released by ZIMRA, and for any items which may have been stolen or missing as
from that date.
3.
The
respondent be and is hereby ordered to pay costs of suit on an attorney-client
scale.
Interim Relief
granted
Pending the confirmation or discharge of the provisional
order, the applicant is granted the following relief:
The respondent be and is hereby ordered to release 10 drums
of goods belonging to applicant within 24 hours of granting of this order.”
The salient facts of this matter are
the following. On 4 may 2009 the
applicant entered into an agreement with Africa Links Ltd in the United Kingdom
for the shipment of goods from the United Kingdom to Bulawayo. The items to be shipped were ten(10) drums
containing food and household effects.
The applicant paid 1 665 British pounds for the services rendered by
Africa Links. The applicant was advised
that the consignment would arrive in Bulawayo around 24 June 2009, but it
arrived at the Bulawayo bonded container depot on 7 September 2009. According to evidence in affidavits filed
with this application when the consignment arrived, the applicant's agents
where advised by the respondent to produce a list of items in each of the 10
drums to ZIMRA and pay import duty.
Applicant's agents complied and they were charged US$800 by ZIMRA. This amount was paid to the respondent who
wrote an invoice to this effect and advised that he wanted to collect money
from the other customers and clear their import duty with ZIMRA at once. The goods were finally released into respondent
custody on 7 October 2009. As from that
date respondent has refused to release applicant's goods to applicant's
agents. The respondent, according to
affidavits filed, alleged that Africa Links owes him money and he is holding
the goods as security for his payment.
Respondent refused to release the good despite several visits to him by
the applicant's two agents. Even after
the institution of these proceedings, the respondent demanded 1 090 British
pounds on 19 October 2009, so that the goods can be released. The respondent, instead of dealing with the
merits, raised a point in limine to
the effect that he knows nothing
about the claim as he is neither an agent nor employee of Africa Links. This is what respondent states in his
opposing affidavit:
“3. What
I can say is that I suspect is that applicant's agent, Brightness Masinga, made
an error in identifying me as the respondent after she saw me at the shop where
the goods are kept. I know Masinga and
she knows me, and I think that she thought my being present at the shop on the
day she came meant that I was an agent of Africa Links, which is not the case …
4.
I in fact had gone to the said shop in order to assist Sebastian Ncube
and Andrew Ncube, who have connections to Mr Ephrain Ncube, one of the
directors of Africa Links. I am not related to Ephraim
Ncube. Andrew Ncube is. To that extent, the applicant has cited the
wrong party.” (Emphasis added)
The applicant's three agents dispute all this. They are adamant that the respondent was
directly involved in the release of the goods from ZIMRA and that they dealt
with him personally and that he did all the paperwork. They say he is the one holding applicant's
goods pending payment owed to him by Africa Links. There is no question of mistaken identity as
the witnesses are known to each other.
This is common cause. Adopting a
robust approach I find that it is unlikely that the applicant would sue an
innocent person who has nothing to do with the claim. He, in any event concedes that he was
assisting at the shop where the goods are detained. He was not candid enough to disclose the
nature of the assistance.
From the evidence in papers before me, I am satisfied that
the respondent was correctly cited. In
view of the nature of the point in limine
that he had raised, it is no longer necessary to hear him on the merits
before the interim relief sought is determined.
The respondent will have all the time to make submissions on the
substantive relief sought before the return date.
Accordingly, the provisional order is granted in terms of the
amended draft.
Messrs Cheda & Partners, applicant's legal practitioners
Job Sibanda & Associates,
respondent's legal practitioners
