This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.
THE FACTS
The appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, with Interfin Banking Corporation Ltd in liquidation (the Bank) in both the High Court and in this Court. Some of the cases have been concluded while others are still pending.
The facts relevant to this appeal are narrow.
On 16 March 2018, in HC2463/18, the appellant brought motion proceedings against the first respondent seeking vindication of its original title deed no. 9068/2008, which pertains to Lot 3 of Bannockburn (the immovable property), within 10 days of the grant of the order failing which the second respondent was to issue a duplicate replacement deed within 90 days of that order.
The order was granted, purportedly in default of the first respondent, on 6 June 2018.
On 18 July 2018, while the application for rescission of the default judgment was pending, the appellant obtained the duplicate replacement title deed from the second respondent.
The first respondent filed three urgent chamber applications to stop the second respondent from issuing the replacement deed and one court application to prevent the appellant from using it.
The three urgent applications were all removed from the roll for lack of urgency while the court application was withdrawn.
The default judgment, upon which the replacement deed was issued, was rescinded a quo, in terms of Rule 449 of the High Court Rules 1971, on 21 November 2018.
The appellant duly appealed against the rescission of the judgment of the court a quo to this Court. The appeal was dismissed with costs on the higher scale on 7 October 2019 in case number SC924/18 for two reasons:
(i) The first was that the substituted service, upon which the rescinded judgment was based, had been effected on legal practitioners who did not have the mandate to represent the first respondent.
(ii) The second was that the order for substituted service had, by consent of the parties, been rescinded by this Court in SC733/18 on 25 March 2019.
It was common cause that the appellant used the duplicate title deed to subdivide an undisclosed number of Stands on Lot 3 of Bannockburn. He also used it to conclude an undisclosed number of agreements of sale with purchasers such as Conradie Tinofirei Mutumbuki, the third respondent in the application for rescission, on 11 October 2019, and to transfer title thereof to three purchasers, one of which was David Madyausiku who took transfer on 12 April 2019.
On 21 October 2019, the first respondent filed the urgent chamber application which has given rise to this appeal. It sought, in the interim, the return of the replacement deed to the second respondent; its cancellation by the second respondent; and the setting aside of all transactions based on it.
On the return date, it sought confirmation of the interim relief and costs de bonis propriis on the higher scale against the appellant's legal practitioner of record, one Mr Kwaramba.
On 29 October 2019, the appellant opposed the application.
It also filed a counter urgent chamber application in terms of Rule 229A of the High Court Rules, 1971. It raised five preliminary points. These were;
(i) That one of the urgent chamber applications that had been removed from the roll was lis pendens;
(ii) There was material non-disclosure of all the urgent applications that had been removed from the roll and the court application that had been withdrawn;
(iii) The application was not urgent;
(iv) There was non-joinder of third parties who had benefited from transactions based on the replacement title deed; and
(v) Lastly, that the relief in the interim order was the same as the one in the final order.
On the merits, it sought the dismissal of the application.
In the counter application, the appellant sought the retention of the replacement deed in the interim and determination of the lawfulness of the first respondent's possession of the original title deed on the return date.
It indicated its avowed intention to utilize the replacement deed to conduct further subdivisions, conclude more agreements of sale, and transfer the subdivisions that had been sold.
One such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the proceedings on his own motion as the third respondent at the hearing on 29 October 2019 and made common cause with the appellant.
The first respondent also raised the preliminary point of lack of urgency against the counterclaim and sought its dismissal on the merits.
THE FINDINGS A QUO
The court a quo dismissed all the preliminary points raised by the appellant.
While it regarded one of the urgent chamber applications that had been removed from the roll to be pending at the instance of the first respondent, it found the cause of action and relief sought to be different from those before it.
It found the non-disclosure of prior urgent chamber applications and court application irrelevant to the determination of whether the main application was urgent.
It held, that, as the appellant had only impugned the interim relief pertaining to the setting aside of all transactions based on the replacement deed, and not the surrender and cancellation relief as final in effect, it could exercise its Rule 240 discretion to grant interim relief that was not final in effect.
It proceeded to do so by suspending, rather than cancelling, all the transactions predicated upon the replacement deed.
The court a quo further determined, that, the relief sought did not seek to stop past events but “recent and ongoing events.”
It also relied on the provisions of Rule 87 to find that the non-joinder of the third parties who purchased or took transfer of the purchased subdivisions was not inimical to their rights and interests as they were not involved in the procurement of the impugned replacement deed.
Lastly, it found that the first respondent had acted with speed after the decision of this Court of 7 October 2019 to launch the urgent chamber application after the subsequent ten-day negotiations for the voluntary surrender of the replacement deed failed.
Under the consequence factor, it held, that, the first respondent had established that the failure to intervene on an urgent basis would result in the attenuation and dissipation of the immovable property to the detriment of the first respondent's rights in the security pending litigation in HC8113/16, the consolidated case under which the application for rescission had also been incorporated.
Regarding the counter-application, it upheld the preliminary point of lack of urgency that was raised by the first respondent and struck it off the roll with costs on the higher scale.
On the merits of the main application, the court a quo was cognisant of the fact that the issue before it concerned the legality of the possession of the duplicate title deed by the appellant and not the legality of the possession of the original title deed by the first respondent.
It held, that, the appellant had fraudulently procured the duplicate title deed through a deliberate omission of the timeous opposition to its application in HC2463/18 from the bundle of documents for default judgment and the improper appeal against the rescission of the default judgment.
It reasoned that the appellant had done so for the twin purposes of obtaining and utilizing the duplicate deed to undertake the transactions it could not do without the original title deed; such as, the advertisements for the sale of Stands, the conclusion of agreements of sale, and the transfer of the Stands.
It also determined, that, the rescission of the default judgment restored the status quo ante, thereby effectively maintaining and preserving the first respondent's possession of the original deed and preventing the appellant from utilizing the duplicate deed to attenuate and dissipate the security by subdividing, selling, and transferring any subdivisions.
Lastly, it held that the first respondent had established all the requirements for a mandamus.
It therefore granted the provisional order for the return of the duplicate deed to the second respondent for cancellation and suspended all pending activities founded on the subdivisions, agreements of sale, and transfers of title predicated upon the duplicate title deed.
The appellant was accordingly estopped from effectuating all activities based on the duplicate title deed.
The court a quo reserved the nature and level of costs for the return day.
GROUNDS OF APPEAL
Aggrieved by the determination a quo, the appellant sought the setting aside of the order in the main application only and its substitution by a dismissal of the urgent chamber application with costs on the following four grounds of appeal:
“1. The court a quo erred in concluding that the 1st respondent's application was urgent when the 'time' and 'consequence' factors of urgency were not satisfied.
2. The court a quo erred in granting the relief of an interdict when all the requirements of an interdict were not met.
3. The court a quo grossly misdirected itself by granting a final interdict on an interim basis.
4. The court a quo grossly misdirected itself by purporting to interdict past events done pursuant to the replacement title deed.”
It is noteworthy that the appellant did not appeal against the striking off order against its counter urgent chamber application.
THE ISSUES
It was common cause that the issues for determination that arise from the grounds of appeal are:
1. Whether the court a quo correctly determined that the matter was urgent.
2. Whether the requirements of an interim interdict were satisfied.
3. Whether or not the court a quo granted a final interdict when the first respondent had sought an interim order....,.
On the merits, the appellant contended that the court a quo erred in holding;
(i) Firstly, that, the time to act commenced soon after this Court's judgment of 7 October 2019 rather than 18 July 2018, when the replacement title deed was issued by the second respondent; and
(ii) Secondly, that, the continued use of the replacement deed to subdivide, sell, and transfer the subdivisions constituted an irreversible dissipation of the immovable property secured by the collateral held by the first respondent.
It submitted, that, the previous attempts, in HC5466/19 and HC7769/19, to stop the use of the replacement deed negated the “time and consequence” based urgency by the time the provisional order was sought on 21 October 2019, since the dissipation of the immovable property, which began in 2008, was known to the first respondent from March 2012 when it took possession of the original deed.
On the consequent aspect, the appellant argued, that, the failure a quo to determine whether the tender of security in lieu of the original deed negated any irremediable harm arising from the indebtedness claimed in HC8113/16, which had been fully ventilated by the parties, constituted a fatal misdirection warranting interference with its discretion on appeal.
The appellant further submitted, that, as the immovable property was not hypothecated, it could not constitute security for the Bankers Acceptances.
It strongly contended, that, the absence of irreparable harm therefore negated the finding a quo of urgency.
The appellant further impugned the finding that the first respondent had established a prima facie case for granting the provisional order.
It assailed the existence of a prima facie entitlement, though open to some doubt, to possess the original title deed pending determination of HC8113/16, on four grounds:
(i) Firstly, the absence of a debtor-creditor relationship;
(ii) Secondly, the absence of a cession between the two protagonists;
(iii) Thirdly, that the appellant had discharged its obligations in full to the Bank; and
(iv) Lastly, that possession of the original title deed was contrary to the Security Trust Deed and Assignment Agreement between the first respondent and the Bank.
The appellant also emphasized, that, as the title deed was not the subject of the claim in HC8113/16, nor encumbered, the purported tender of the bond of security countervailed the existence of actual or reasonable apprehension of harm.
It further argued, that, the balance of convenience favoured the appellant in that it had earned US$15 million from the sale of 300 stands on which third parties had invested a further US$18m, which, in aggregate, significantly eclipsed the claim of US$2.3m in HC8113/16.
It boasted of its ability to pay the claimed amount in the event liability was established.
Lastly, the appellant contended, that, the court a quo improperly granted final relief on an interim basis on a lower onus, which did not protect its rights pending HC8113/16.
Per contra, the first respondent contended, that, the court a quo had correctly found that the first respondent established both the “time and consequence” factors of urgency and all the four requirements for the grant of an interim interdict.
Counsel for the first respondent further argued, that, the provisional order was not final in form or substance as it was premised on the determination of HC8113/16, which was pending before the High Court.
THE LAW
The treatment of whether an application is urgent is a matter in the discretion of the court a quo.
This Court has very limited grounds upon which it can interfere with the exercise of that discretion. It can do so where the lower court makes a mistake on the law or the facts; acts upon a wrong principle; allows extraneous considerations to influence its decision; fails to take into account relevant facts; or, more generally, makes a decision that is irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)…,; and Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor SC43-13.
The law on what constitutes urgency is settled.
Urgency is manifested by either a time or consequence dimension: see Kuvarega v Registrar-General & Anor 1998 (1) 188 (H)…,; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H); and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC28-14…,.
In addition, in Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13…, GARWE JA,…, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent.
While he generally approved the position articulated in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), at 193A-C, he underscored that such an application could not be regarded as a nullity and stated that:
“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court, as it is empowered to do…, may amend the relief sought in order to grant…, interim protection (and) obviate a situation where final relief is granted by way of a provisional order.”
It is apparent, that, the consequence dimension pre-supposes that the harm sought to be protected in an impending matter would be amorphously irremediable without the interim indulgence.
In Chiwenga v Mubaiwa SC86-20…, this Court further highlighted the incongruence of noting an appeal against a finding of urgency for the basic reason that the finding of urgency is a mere procedural device used by an applicant to jump the queue of other pending matters for a consideration of the merits. This Court reasoned that:
“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is, rightly or wrongly, allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.”
In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18…, this Court held that a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal.
In our law, a pledge vests real rights of security in the property pledged to the pledgee. This was pertinently pronounced by MFALILA J in Hughes v Lotriet 1985 (2) ZLR 179 (H)…, thus:
“This valid pledge, therefore, had the effect of conferring on the applicant (the pledgee) a real right in the articles pledged and this right can only terminate when the pledge is extinguished. The pledge is extinguished only after the original or principal obligation is discharged….,. Until this is done, the respondent, as pledgor, has no right of action either for their return or damages for their loss.”
The requirements and purpose of an interim interdict are also well settled in this jurisdiction.
It seeks to protect an existing right from unlawful infringement that is either continuing or reasonably anticipated: see Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority CC07-14; Setlogelo v Setlogelo 1914 AD 221…,; and Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).
In the latter case, this Court stated…, that:
“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requisites of a prohibitory interdict are established: see Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C-D; Kaputuaza & Anor v Executive Committee of the Administration for the Hereros & Ors 1984 (4) SA 295 (SWA) at 317E. These are:
1. A clear or definite right - this is a matter of substantive law.
2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.
3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -
(a) Be adequate in the circumstances;
(b) Be ordinary and reasonable;
(c) Be a legal remedy; and
(d) Grant similar protection.”
In respect of an interim interdict, where the right sought to be protected is not clear “a right which 'though prima facie established, is open to some doubt'” suffices: see Eriksen Motors (Welkom) Ltd v Warrenton & Anor 1973 (3) SA 685 (A)…,.
Where a clear right is established, the applicant is precluded from establishing a well-grounded apprehension of irreparable harm, but must do so where only a prima facie right open to some doubt is established: see Pinkstone Mining (Pvt) Ltd & Ors v Lafarge Cement (Pvt) Ltd & Anor HH118-18…,.
Bankers Acceptances (BAs) meet the definition of a bill of exchange espoused in the Bills of Exchange Act [Chapter 14:02] (section 3(1)): A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person, or to bearer.
The Bills of Exchange Act also defines certain correlative terms to a bankers acceptance such as 'acceptance' 'bearer' 'delivery' 'endorsement holder' and 'payment in due course'.
“acceptance” means an acceptance completed by delivery or notification;
“bearer” means the person in possession of a bill or note which is payable to bearer;
“delivery” means transfer of possession, actual or constructive, from one person to another;
“endorsement” means an endorsement completed by delivery;
“holder” means the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof;
“payment in due course” means payment made at or after the maturity of a bill to the holder thereof in good faith and without notice that his title to the bill is defective.
APPLICATION OF THE LAW TO THE FACTS
The appellant submitted, that, the court a quo mis-applied the time aspect and failed to consider the “consequence” factor.
The ratio of the court a quo on these two aspects is delineated on p13 of the appealed judgment in these words:
“Notwithstanding that the order that enabled the first respondent to procure a duplicate title deed was effectively nullified by the Supreme Court on 7 October 2019, the first respondent (appellant) is still refusing to return the replacement copy of the title deed in terms of which it subsequently subdivided and sold parts of the property as evidenced by the agreement of sale in the third respondent's (Mutumbuki) notice of opposition, hence, first respondent is effectively in the process of developing and dissipating Stands to individual purchasers.
From the papers, applicant engaged the first respondent from 7th to 17th October 2019 but first respondent has made it clear that it wants to hold onto the replacement title deed at all costs to further its apparent unlawful activities of dissipating the immovable property before resolution of case HC8113/18 (sic).
It becomes prudent for this court to intervene, on an urgent basis, to force the first respondent to return the duplicate title deed and for the duplicate title deed to be cancelled, if necessary, to prevent first respondent from alienating the property or disposing of its title in the said immovable property pending litigation between the parties before MUSHORE J.”
The above sentiments are unassailable.
Before the order of this Court of 7 October 2019, all prior urgent applications to stop the issuance and use of the replacement deed by the second respondent were hamstrung by the extant default judgment that permitted the appellant to obtain the replacement deed.
The patently erroneous default judgment had been given a lease of life by the improper appeal lodged by the appellant against the order of rescission.
Notwithstanding that the service by substitution order upon which the default judgment was based was, by consent, rescinded by this Court on 25 March 2019, the appellant brazenly utilized the replacement deed to transfer a Stand on the immovable property to Madyausiku on 12 April 2019.
And, despite the confirmation, again by this Court, of the rescission of the default judgment, on 7 October 2019, which, by operation of law, rendered the replacement deed inefficacious, the appellant perverted the default judgement and the replacement deed by concluding an agreement of sale for a Stand on the immovable property with, amongst others, Mutumbuki, on 11 October 2019.
In its opposing affidavit, the appellant persisted with its avowed intention to continue using the replacement deed to subdivide, sell, and transfer Stands on the immovable property.
We are satisfied that the court a quo properly applied both the time and consequent factors of urgency.
The exercise of its discretion, on the question of urgency, is unassailable.
Again, on the authority of this Court in Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18 and Chiwenga v Mubaiwa SC86-20, the first ground of appeal is not only ill-conceived and misplaced but also devoid of merit.
The tenor of the contentions made by the appellant in respect of the second ground of appeal disingenuously relates more to the counter application that was struck off and not appealed against rather than the provisional order that it sought to impugn.
The provisional order protected the first respondent's right to legality, which constitutes a vital aspect of the rule of law.
The consolidated matter in which, inter alia, the first respondent sought the discharge of dishonored Bankers Acceptances drawn by the appellant and secured by the title deed was pending as was the claim of vindication that was lodged by the appellant.
The case was awaiting determination in accordance with the law.
This Court had effectively disgorged the appellant of the ill-gotten duplicate deed and nullified its efficacy on 7 October 2019.
The appellant's refusal to voluntarily surrender the duplicate deed was inimical to the first respondent's real rights in the security that are awaiting determination. The provisional order could not, and did not, determine the issues pending in HC8113/16.
It was remiss of the appellant to motivate the second ground solely on the legality of the possession of the original deed by the first respondent while studiously ignoring the legality of its own stranglehold on the duplicate deed.
The failure to properly demonstrate how the court a quo misdirected itself in finding that the constituent elements of an interim interdict were established is fatal to the second ground of appeal.
The second ground of appeal lacks merit and must, therefore, fail.
The appellant further contended, that, the court a quo erred in granting a final interdict on an interim basis.
The order granted a quo was a provisional order, which restored the status quo ante pending the conclusion of the consolidated matter, HC8113/16.
Before the replacement deed was issued, the appellant could neither subdivide, sell, nor transfer any Stands on the immovable property.
That is the position that was safeguarded by the provisional order.
The order sought to be confirmed or discharged is predicated on the pending consolidated matter HC8113/16, which, at the time the provisional order was sought and granted, incorporated HC2463/18.
In addition, the court will determine the propriety of mulcting Mr Kwaramba with costs on the higher scale de bonis propriis on the return date.
The first respondent will also be obliged to show not only why the status quo ante should be confirmed pending the determination of the disputes raised by both parties in the consolidated matter, HC8113/16, but also why Mr Kwaramba should personally be mulcted with punitive costs.
The provisional order did not stop the determination of HC8113/16 nor did it pre-empt any of the issues raised therein.
The provisional order was therefore not the same as the final order sought nor did it have final effect.
Accordingly, the third ground of appeal must fail.
COSTS
It is clear to us, that, the appeal was launched for the perverse purpose of prolonging the appellant's stranglehold on the replacement deed in order to render the security held by the first respondent redundant. This is a proper case for expressing our displeasure at the conduct of the appellant by mulcting it with costs on the scale of legal practitioner and client.
DISPOSITION
Accordingly, it is ordered that:
1. The appeal be and is hereby dismissed.
2. The appellant shall pay the first respondent's costs on the scale of legal practitioner and client.
