GOWORA J: The first
respondent herein had under Case No. HC1049/09 instituted proceedings
against the applicant and second respondent herein. On 30 March 2009
OMERJEE J issued an order as follows:
“IT
IS ORDERED THAT:
1. Mydale International Marketing
(Pvt) Ltd is entitled to receive from the second respondent and have
in its custody and under its control vehicles registration number No
AAU 8190, ABC 3354 and AAP 1952.
2. Mydale International (Pvt) Ltd
shall record the mileage on each vehicle from the time of receipt
from the second respondent.
3. Mydale International (Pvt) Ltd
shall be entitled to ordinary use of the motor vehicles and shall not
sell or otherwise alienate the said motor vehicles without an order
of court.
4. Messrs Byron Venturas &
Partners shall within 24 hours of the order surrender to the
Registrar of the High Court, Harare the US$28,500 the proceeds for
the sale of the six motor vehicles owned by Mydale International
(Pvt) Ltd for retention by the Registrar pending the determination of
any dispute over ownership of Mydale International Marketing (Pvt)
Ltd.”
On 4 April 2009 the first respondent noted an appeal against the
order and as a result he did not surrender the money to the registrar
as had been ordered.
On 21 April 2009 the applicant launched these proceedings under a
certificate of urgency for the grant of a Provisional Order. The
respondent having filed a notice of opposition and opposing
affidavits the matter was not heard on an urgent basis. Instead the
learned judge before whom the matter was placed gave directions to
the parties to file pleadings and thus the matter was converted into
an opposed court application.
The second respondent has not filed any papers in this matter and I
will as a result refer to the first respondent as the respondent.
The matter was not heard on an urgent basis and the interim relief
being sought was not granted.
The applicant has not however filed an amended draft order and from
the submissions by counsel it is clear that what is sought is an
order in terms of the final relief on the provisional order. That
part of the order depended on the court having granted interim
relief.
A word of caution should be sent to legal practitioners to ensure
that a draft order must be filed where an urgent application has been
ruled not to be urgent and the matter proceeds on the basis of the
provisional order initially filed with the application. A party must
ensure that it moves for the order that it wishes for.
Where a provisional order is left without interim relief having been
granted it should not be left to the judge to decide what order
should be granted to the prejudice to parties in the dispute.
As it is the order in casu
presents me with a number of challenges.
In the final relief it is sought that the Registrar of the High Court
pay to the applicant the sum of US$28,500-00 upon satisfactory proof
that it owned the vehicles sold by Hammer & Tongues. Before
considering the terms of the final relief I have to deal with the
interim relief which was not granted.
The terms of the interim relief being sought were the following:
“INTERIM
RELIEF GRANTED:
(a) Pending appeal, within 24
hours of the service of this order on him, the first respondent and
his lawyers Messrs Venturas & Samukange shall comply with para 4
of the judgment by OMERJEE J in case HC1049/09 dated 3 April 2009.
(b) Failing compliance the first
respondent and the said lawyers shall within a further 24 hours
appear before this honourable court to show cause why he/they should
not be committed to prison for contempt of court.”
The order by OMERJEE J is still
extant in the sense that it has not been set aside by the Supreme
Court. The order was to the effect that the money which is subject
matter of a dispute between the applicant and the first respondent be
deposited with the Registrar until the ownership of the shareholding
in the applicant has
been determined.
The respondent has taken the
position that he noted an appeal and as a result did not need to
comply with the part of the order requiring that he surrender the
money to the Registrar.
In the interim relief sought the applicant sought to make the order
operational without having sought from court an order for execution
of the judgment pending appeal.
Although the underlying theme in the body of the founding affidavit
is to the effect that the judgment was interlocutory and could not be
appealed against, the order being sought for the legal practitioners
of the respondent to pay the money to the registrar seems to
recognize the validity of the appeal, as the preamble to the order
sought shows.
The applicant has made much of the allegation that the appeal was
made in order to frustrate the execution of the order by the learned
judge. The question as to whether the appeal has merit is not before
me and I cannot delve into such an issue.
The applicant also avers that the appeal is null and void for want of
validity as the judgment is interlocutory. The applicant cited no
authority for this proposition.
It is a generally acceptable principle that at common law the noting
of an appeal suspends the operation of a judgment, and that the
consequence of the noting of the appeal is that the execution of the
judgment is stayed unless the court directs otherwise. Normally the
party intending to execute against the judgment would approach the
court for leave to execute pending appeal. The applicant has not
applied for leave to execute pending appeal which is a necessary
procedural step.
The leading case in South Africa
which has been followed by our courts is that of South
Cape Corporation (Pty)
Ltd
v Engineering
Management Services
(Pty)
Ltd.
At p 544H-545C CORBETT JA stated:
“Whatever the true position may
have been in the Dutch Courts, and more particularly the Court of
Holland (as to which see Ruby's
Cash Store (Pty)
Ltd
v Estate Marks &
Anor, 1961 (2) S.A.
118 (T) at pp120-3), it is today the accepted common law rule of
practice in our courts that generally the execution of a judgment is
automatically suspended upon the noting of an appeal, with the result
that, pending the appeal, the judgment cannot be carried out and
given effect thereto, except with the leave of the court which
granted the judgment.
To obtain such leave the party in
whose favour the judgment was given must make special application.
(See generally Olifants
Tin “B” Syndicate
v De Jager,
1912 AD 377 at 481; Reid
and Anor v Godart
& Anor, 1938 AD
511 at p 513; Gentiruco
A.G. v Firestone
SA (Pty)
Ltd 1972 (1) S.A. 589
(A.D.) at p 667; Standard
Bank of SA Ltd v Stama
(Pty)
Ltd 1975
(1) SA 730 (A.D.) at p 746.)
The purpose of this rule as to
the suspension of a judgment on the noting of an appeal is to prevent
irreparable damage from being done to intending appellant either by
levy under a writ of execution or by execution of the judgment in any
other manner appropriate to the nature of the judgment appealed from
(Reid's
case supra
at p 513). The Court to which application for leave to execute is
made has a general discretion to grant or refuse leave and, if leave
be granted, to determine the conditions upon which the right to
execute shall be exercised (See Voet,
49.7.3; Ruby's
Cash Store
(Pty)
Ltd v
Estate Marks
& Anor,
supra
at p 127. This discretion is part and parcel of the inherent
jurisdiction which the court has to control its own judgments (c.f.
Fismer v Thornton,
1929 A.D. 17 at p. 19).”
In my view before seeking to have the court order that the respondent
deposit with the Registrar the money in dispute before the parties,
the applicant ought to have sought an order to the effect that the
appeal was null and void for want of compliance with the rules on the
grounds that the order was interlocutory or for an order for leave to
execute pending appeal.
It is also pertinent to note that the appeal is before the Supreme
Court and it is in my view the Supreme Court which should state
whether or not the appeal is null and void for want of compliance
with the rules.
In the absence of such a declaration it is not open to this court to
find that the appeal is null and void.
The applicant has done neither and it is therefore not in this
court's power to order that the respondent complies with the order
of OMEREE J.
In para (b) of the draft order it is sought that failing compliance
this court finds that the respondent and his legal practitioners who
have not been cited in these proceedings appear before the court
within 24 hours to show cause why they should not be committed to
prison for contempt.
It would seem to have escaped the attention of the learned counsel
for the applicant that a part against whom an order of contempt is
sought must not only be personally cited but that process for such
citation must be personally served on the respondent. I do not have
any party from the legal practitioners of the respondent cited
personally and I will therefore not dwell further on this aspect.
I turn next to deal with the terms of the final relief which is what
I assume the applicant really sought not only from the founding
affidavit, but from submissions by counsel both written and oral.
What the applicant seeks in final terms is as follows:
“FINAL
RELIEF GRANTED
(a) That the Registrar of the
High Court shall pay to the applicant US$28,500-00 subject to
satisfactory proof by the applicant that it owned the motor vehicles
sold by the second respondent to raise the said amount of
US$28,500-00.
(b) The first respondent shall
pay the costs of the application.”
A perusal of para 4 of the order issued by OMERJEE J shows that the
money that was to be surrendered to the Registrar was to be retained
by him pending the determination of the dispute of the ownership of
the shareholding in the applicant.
That dispute as far as I am aware has not yet been determined.
The applicant has come to court for relief which would have the
effect of nullifying that order in that the Registrar would hand over
to the applicant the monies in dispute without the resolution of the
ownership of the shareholding in the company.
A company is owned by its members and the benefit accruing to a
company is that of its members, and there is a dispute as to who the
members of the applicant are. This was a dispute that was simmering
when OMERJEE J heard the matter. It is important that it be resolved.
It has not.
The representative of the applicant in these proceedings seems to be
oblivious to the effect of the order given and seeks that this court
nullifies an order that has been granted by the same court.
In my view this court cannot order that the money mentioned in para 4
of the order dated 30 March 2009 be paid to the applicant. It is
relief that is not available on the papers before me. The effect of
that order would go beyond what OMERJEE J ordered and would in effect
have the effect of confirming that Mr Peter Valentine did own shares
in the applicant without a proper resolution of the dispute as to who
owns shares in the applicant.
The question as to who owns
shares in the company is, I believe, directly linked to the point in
limine raised
by the respondent as to the locus
standi of Mr Valentine
in instituting these proceedings.
The respondent has filed as part of his papers an affidavit from one
Obaid Salem who claims not only beneficial interests in the company
assets but also the vehicles which were the subject matter of the
dispute before OMERJEE J. The notice of appeal filed by the
respondent challenges the order by the learned judge that the
vehicles in question be retained by the applicant as it is contended
by the respondent that the vehicles do not belong to the applicant,
but to Salem. As the proceeds of the cash being sought to be paid
over to the applicant are from the sale of the vehicles, it is
mischievous for the applicant to seek to have the order by OMERJEE J
reversed by having the money handed over to itself taking into
account all the factual disputes that are apparent on the pleadings.
In my view the applicant's
representative has not satisfied me that he has locus
standi
to institute proceedings on behalf of the applicant.
For all the reasons stated above
the application is ill-conceived and it therefore must fail. In the
result the application is dismissed and the applicant is ordered to
pay the costs of the application.
F M Katsande & Partners, legal practitioners for the
applicant
Venturas & Samukange, legal practitioners for the
respondent
1. 1977 (3) 534
