Procedural Law-viz appeal re leave to execute pending appeal.
Procedural Law-viz appeal re leave to execute pending appeal iro judgment debt.
Procedural Law-viz appeal re notice of appeal iro service of notice of appeal.
Procedural Law-viz rules of court re Supreme Court Rules iro Part V of the Rule 34(1).
Procedural Law-viz rules of court re Supreme Court Rules iro Rule 34(1).
Procedural Law-viz appeal re notice of appeal iro tender of costs for the preparation of the record of appeal.
Procedural Law-viz Supreme Court Rules re Rule 34(1) iro tender of costs for the preparation of the record of appeal.
Procedural Law-viz rules of court re Supreme Court Rules iro Rule 46(5).
Procedural Law-viz appeal re notice of appeal iro security for costs of appeal.
Procedural Law-viz Supreme Court Rules re Rule 46(5) iro security for costs of appeal.
Procedural Law-viz rules of court re Supreme Court Rules iro Rule 46(2).
Procedural Law-viz Supreme Court Rules re Rule 46(2) iro security for costs of appeal.
Procedural Law-viz appeal re leave to execute pending appeal iro requirement for security for costs of appeal.
Law of Contract-viz debt re capital debt iro debt interest.
Law of Contract-viz debt re judgment debt iro judgment interest.
Procedural Law-viz appeal re leave to appeal pending appeal iro prospects of success on appeal.
Procedural Law-viz appeal re grounds of appeal founded on findings of fact made by the court a quo iro prospects of success on appeal.
Procedural Law-viz findings of fact re assessment of evidence.
Procedural Law-viz rules of evidence re documentary evidence.
Agency Law-viz specific performance ex contractu.
Procedural Law-viz appeal re grounds of appeal iro grounds of appeal founded the ratio decidendi of the judgment of the court a quo.
Procedural Law-viz leave to execute pending appeal re judgment debt iro bond of security de restituendo.
Procedural Law-viz leave to execute pending appeal re capital debt iro bond of security de restituendo.
Law of Contract-viz specific performance ex contractu re contracting with an agent iro liability of the principal on the contract.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro S.I.109 of 1996.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro SI 109 of 1996.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro S.I.109/1996.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro SI 109/1996.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro S.I.109/96.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro SI 109/96.
Banking Law-viz exchange control re section 4(1)(a)(i) of the Exchange Control Regulations iro Statutory Instrument 109 of 1996.
Procedural Law-viz pleadings re issues before the court.
Procedural Law-viz affidavits re issues before the court.
Procedural Law-viz appeal re grounds of appeal iro grounds of appeal founded on orbiter dictum comments of the judge.
Procedural Law-viz appeal re audi alteram partem rule iro grounds of appeal founded on orbiter dictum comments of the judge.
Procedural Law-viz audi alteram partem rule
Procedural Law-viz final orders re judicial precedents iro obiter dictum comments.
This
is an application for execution pending appeal arising from my judgment of 7
November 2007 in which I ordered National Blankets Limited to pay Branson
Marketing (Pvt) Limited the sum of ZAR720,607=07 and interest a tempore morae
at the rate applicable in South Africa from the date of the service of summons
to the date of payment in full plus costs of suit.
It
was filed on 2 July and opposed on 17 July 2008.
The
principles applicable for leave to execute pending appeal were succinctly set
out by SMITH J in Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H)...,.
The learned judge states thus -
“In
determining an application for leave to execute pending an appeal the court
must have regard to the 'preponderance of equities, the prospects of success on
the part of the appellant, and whether the appeal has been noted without the
bona fide intention of seeking to reverse the judgment but for some indirect
purpose eg. to gain time or to harass the other party.' See Fox & Carney
(Pvt) Ltd v Carthew-Gabriel (2) 1977 (4) SA 970 (R) and ZDECO (Pvt) Ltd v
Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (H).”
Counsel
for the applicant submitted that the notice of appeal was filed not to reverse
the judgment but in order to delay execution of the judgment.
The
fourth ground raised by counsel for the applicant to show that the respondent's
appeal was noted with mala fide intentions was that the respondent did not pay
the amount of ZAR327,527=46 which forms part of the total judgment debt ordered
on 7 November 2007 notwithstanding that it admits indebtedness in this lesser
amount.
Counsel
for the respondent failed to counter the fourth ground raised by the applicant's
counsel.
Standing on its own, the failure to satisfy the
amount it admits owing is demonstrative of the fact that the respondent noted
its appeal solely for the purpose of delay.
Counsel
for the applicant submitted that the respondent had no prospects of success on
appeal. He contended that I made findings of fact which the appeal court would
not lightly interfere with. One of these findings was that the respondent had
contracted, as principal, with the applicant in the purchase of the raw
materials to the value of ZAR353,199=47.
The
value of the materials was not in dispute.
The
respondent's defence was that the applicant executed the contract of sale with
Cyriel (Pvt) Ltd and Stakeholders (Pvt) Ltd, who, in turn, sold the goods to
it.
I
found, from the evidence, and especially from the documentary exhibits, that Cyriel
(Pvt) Ltd and Stakeholders (Pvt) Ltd were agents of the respondent. That the
respondent was the principal was demonstrated by the fact that the respondent
placed the orders to the applicant, requested the purchase price of the of the
materials from the applicant, selected the transporters of the purchases, and
received the materials un-opened by either Cyriel (Pvt) Ltd or Stakeholders
(Pvt) Ltd.
I
found from the contents of exhibits 1 and 2 (letters written by the deponent to
the respondent's opposing affidavit and its sole witness at the trial) that it
was common cause that these two entities were used by the respondent to
overcome the complications arising from
stringent Central Bank regulations on accessing foreign currency on the auction
system. It was agreed that the respondent introduced the applicant to these two
entities. My finding was that the two entities were smokescreens of the
respondent. The respondent did not adduce any evidence to show that it
purchased the raw materials from either Cyriel (Pvt) Ltd or Stakeholders (Pvt)
Ltd. It was also agreed that when Cyriel (Pvt) Ltd failed to pay the amount due
to the applicant in foreign currency, the local currency held by it was
returned to the respondent. The end result was that the respondent received the
raw materials from the applicant while the applicant did not receive any value
for the consignment.
The
thrust of my judgment was that it was in a bid to get value that the applicant
sought the help of the respondent to receive payment from the respondent's
agent. My finding was that the exhibits that contained these requests, and the
investigations mounted by the applicant, showed that the applicant looked up to
the respondent for payment.
It
does not appear to me that those findings might be upset on appeal. They are
firmly grounded on the bedrock of the evidence adduced during the trial.
I am satisfied that the appeal lodged by the
respondent does not have prospects of success and was merely noted for the mala
fide purpose of delaying payment to the applicant.
Counsel
for the applicant contended that while the notice of appeal was filed in the
Supreme Court on 27 November 2007, it was not served on the Registrar of the High
Court until two years later – on 26 January 2010. He further contended that the
respondent did not, as required by Part V of Rule 34(1) of the Supreme Court
Rules, within five days of filing the notice of appeal, tender or undertake to
pay the Registrar's costs for the preparation of the record of appeal.
Reference
to the original court record appealed against showed that the Registrar of the
High Court was served with the notice of appeal on 10 December 2007. It further
revealed that the respondent's legal practitioners undertook to pay for the
costs of the preparation of the record of appeal on 10 December 2007.
The first two grounds contended by counsel for
the applicant, thus, fall away.
The
third point raised by counsel for the applicant was that the respondent did not
comply with the requirements of Rule 46(5) of the Supreme Court Rules as it did
not furnish security for the applicant's costs of appeal within one month of
filing the notice of appeal or any time thereafter.
It
is correct that the respondent did not furnish security for the applicant's
costs of appeal but Rule 46(5) of the Supreme Court Rules prescribes that such
security shall be furnished before the appellant lodges copies of the record
with the Registrar.
It seems to me the respondent's failure to
furnish security within one month may have been cured by the present
application, which, if granted, dispenses with such a tender.
On
the preponderance of equities, the applicant contended that the payment has
been outstanding since 2004 and the long delay has deprived it of the use of
these funds to fulfil its obligations.
Counsel
for the respondent submitted that the balance of convenience was evenly
balanced.
It
seems to me that the applicant has been prejudiced of the utilization of those
funds for which indebtedness is admitted. However, as money is involved, the
payment of interest in the currency of account would tend to offset the
prejudice by compensating the applicant for the loss in the time value of money.
I am thus satisfied that the balance of
convenience is fairly evenly balanced.
Counsel
for the respondent based his submission that the Supreme Court may overturn my
findings mainly on the basis of the contravention of section 4(1)(a)(i) of the
Exchange Control Regulations S.I.109 of 1996.
He
fell into the error of giving evidence on the manner in which the auction
system of foreign currency operated in his heads of argument. This was not
adduced during the trial or in the respondent's opposing affidavit. It was
grounded in speculation. He speculated that payment would be made in Zimbabwe.
The respondent's submissions that are based on the Exchange Control Regulations
are misplaced for two reasons.
Firstly,
they are based on speculation, and, secondly, they seek to attack comments that
I made after I had already determined the matter on the facts and on the issues
that were fully ventilated during the trial. The comments I made mero motu, on
the possible application of the Exchange Control Regulations and the par
delictum rule, were raised without affording counsel the opportunity to present
argument – were orbiter dictum. They were not the ratio decidendi of my
judgment. Raising them in the present matter, at the eleventh hour, is further
proof that the respondent is hard-pressed to attack the judgment granted in
favour of the applicant on the basis of the evidence adduced during the trial.
Accordingly,
it is ordered that -
1.
The applicant be and is hereby granted leave to execute upon the judgment by
this Honourable Court in Branson Marketing (Private) Limited v National
Blankets Limited handed down on 7 November 2007 under case number HC4807/06
pending appeal.
2.
The applicant shall, prior to executing upon the judgment, deposit with, and to
the satisfaction of the Registrar of the High Court, a bond of security de
restituendo.
3. The respondent shall pay the costs of this
application.
KUDYA
J: This is an application for
execution pending appeal arising from my judgment of 7 November 2007 in which I
ordered National Blankets Limited to pay Branson Marketing (Pvt) Limited the
sum of ZAR 720 607-07 and interest a tempore morae at the rate applicable in
South Africa from the date of the service of summons to the date of payment in
full plus costs of suit. It was filed on 2 July and opposed on 17 July 2008.
The
principles applicable for leave to appeal pending appeal were succinctly set
out by SMITH J in Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149
(H) at 154F. The learned judge stated thus:
“In determining
an application for leave to execute pending an appeal, the court must have
regard to the “preponderance of equities'', the prospects of success on the
part of the appellant and whether the appeal has been noted without “the bona fide intention of seeking to
reverse the judgment but for some indirect purpose e.g. to gain time or to
harass the other party''. See Fox &
Carney (Pvt) Ltd v Carthew-Gabriel (2) 1977 (4) SA 970 (R) and ZDECO (Pvt) Ltd v Commercial Careers College (1980)
(Pvt) Ltd 199l (2) ZLR 61 (H).”
Mr
Uriri, for the applicant, submitted
that the notice of appeal was filed not to reverse the judgment but in order to
delay execution of the judgment. He contended that while the notice of appeal
was filed in the Supreme Court on 27 November 2007, it was not served on the
Registrar of the High Court until two years later on 26 January 2010. He
further contended that the respondent did not, as required by Part V r 34(1) of
the Supreme Court Rules, within five days of filing the notice of appeal,
tender or undertake to pay the Registrar's costs for the preparation of the
record of appeal.
Reference
to the original court record appealed against showed that the Registrar of the
High Court was served with the notice of appeal on 10 December 2007. It further
revealed that the respondent's legal practitioners undertook to pay for the
costs of the preparation of the record on appeal on 10 December 2007. The first
two grounds contended by Mr Uriri,
thus, fall away. The third point that he raised was that the respondent did not
comply with the requirements of r 46 (5) of the Supreme Court Rules as it did
not furnish security for the applicant's costs of appeal within one month of
filing the notice of appeal or at any time thereafter. It is correct that the
respondent did not furnish security for the applicant's costs of appeal but r
46 (2) of the same rules prescribes that such security shall be furnished
before the appellant lodges copies of the record with the Registrar. It seems
to me that the respondent's failure to furnish security within one month may have
been cured by the present application, which if granted dispenses with such a
tender.
The
fourth ground raised by Mr Uriri to
show that the respondent's appeal was noted with mala fide intention was that the respondent did not pay the amount
of R327 527-46 which forms part of the total judgment debt ordered on 7
November 2007, notwithstanding that it admits indebtedness in this lesser
amount. Mr Morris, for the respondent
failed to counter the fourth ground raised by the applicant's counsel. Standing
on its own, the failure to satisfy the amount it admits owing is demonstrative
of the fact that the respondent noted its appeal solely for the purpose of
delay.
On
the preponderance of equities the applicant contended that the payment has been
outstanding since 2004 and the long delay has deprived it of the use of these
funds to fulfill its obligations. Mr Morris
submitted that the balance of convenience was evenly balanced. It seems to me
that the applicant has been prejudiced of the utilization of those funds for
which indebtedness is admitted. However as money is involved the payment of
interest in the currency of account would tend to offset the prejudice by
compensating the applicant for the loss in the time value of money. I am thus
satisfied that the balance of convenience is fairly evenly balanced.
Mr Uriri
submitted that the respondent had no prospects of success on appeal. He
contended that I made findings of fact which the appeal court would not lightly
interfere with. One of these findings was that the respondent had contracted,
as principal, with the applicant in the purchase of the raw materials to the
value of ZAR 353 199-47. The value of the materials was not in dispute. The
respondent's defence was that the applicant executed the contracts of sale with
Cyriel (Pvt) Ltd and Stakeholders (Pvt) Ltd who in turn sold the goods to it. I
found from the evidence led and especially from the documentary exhibits that
Cyriel and Stakeholders were agents of the respondent. That the respondent was
the principal was demonstrated by the fact that the respondent placed the
orders to the applicant, requested the purchase price of the materials from the
applicant, selected the transporters of the purchases and received the
materials unopened by either Cyriel or Stakeholders. I found from the contents
of exh(s) 1 and 2 (letters written by the deponent to the respondent's opposing
affidavit and its sole witness at the trial) that it was common cause that
these two entities were used by the respondent to overcome the complications
arising from stringent central bank regulations on accessing foreign currency
on the auction system. It was agreed that the respondent introduced the
applicant to these two entities. My finding was that the two entities were mere
smokescreens of the respondent. The respondent did not adduce any evidence to
show that it purchased the raw materials from either Cyriel or Stakeholders. It
was also agreed that when Cyriel failed to pay the amount due to the applicant
in foreign currency, the local currency held by it was returned to the
respondent. The end result was that the respondent received the raw materials
from the applicant while the applicant did not receive any value for the
consignment. The thrust of my judgment was that it was in a bid to get value
that the applicant sought the help of the respondent to receive payment from
the respondent's agent. My finding was that the exhibits that contained these
requests and the investigation mounted by the applicant showed that the
applicant looked up to the respondent for payment.
It
does not appear to me that those findings might be upset on appeal. They are
firmly grounded on the bedrock of the evidence adduced during trial.
Mr
Morris based his submission that the
Supreme Court may overturn my findings mainly on the basis of the contravention
of s 4 (1) (a) (i) of the Exchange Control Regulations SI 109 of 1996. He fell
into the error of giving evidence on the manner in which the auction system of
foreign currency operated in his heads of argument. This was not adduced during
trial or in the respondent's opposing affidavit. It was grounded in
speculation. He speculated that payment was to be made outside Zimbabwe.
There was no evidence to dispute that payment would be made in Zimbabwe.
The respondent's submissions that are based on the Exchange Control regulations
are misplaced for two reasons. Firstly, they are based on speculation and
secondly they seek to attack comments that I made after I had already
determined the matter on the facts and on issues that were fully ventilated
during trial. The comments I made mero
motu on the possible application of the exchange control regulations and
the par delictum rule were raised
without affording counsel the opportunity to present argument were orbiter dictum. They were not the ratio decidendi of my judgment. Raising
them in the present matter at the eleventh hour is further proof that the
respondent is hard pressed to attack the judgment granted in favour of the
applicant on the basis of the evidence adduced during trial.
I
am satisfied that the appeal lodged by the respondent does not have prospects
of success and was merely noted for the mala
fide purpose of delaying payment to the applicant.
Accordingly, it
is ordered that:
- The applicant be and is hereby granted leave to
execute upon the judgment of this Honourable court in Branson Marketing
(Private) Limited v National Blankets Limited handed down on 7 November
2007 under case number HC 4807/06 pending appeal.
- The applicant shall prior to executing upon the
judgment deposit with and to the satisfaction of the Registrar of the High
Court a bond of security de
restituendo.
- The respondent shall pay the costs of this
application.
Ahmed & Ziyambi, applicant's legal practitioners
Majoko & Majoko, respondent's legal practitioners
