ZIYAMBI
JA: This
is an appeal against a decision of the High Court dismissing an urgent
application brought by the appellant in which he sought certain interim relief.
The learned judge found firstly, that the matter was not urgent, and secondly,
that the appellant had no locus standi to make the application.
The facts which are common cause are that the appellant holds a 30%
shareholding in the first respondent. The first respondent, in turn, is a
100% shareholder in the second respondent. It is also common cause that
the only asset of the first respondent are its shares in the second respondent
and that the only asset of the second respondent is the land the subject of the
litigation before the High Court.
On the
question of urgency, the papers reveal that in 2010 there was a meeting
followed by correspondence between the appellant's then legal practitioners and
the third respondent at which the appellant sought an assurance from the third
respondent that in the event the land in question was to be sold he would be
fully involved and his 30% interest secured. No response was received by
the appellant to that letter despite a threat by the appellant in a further
letter to “take the matter further”.
Nothing further occurred until August 2013 when the appellant learnt that a
portion of the land had been disposed of to the fourth respondent. It was
then that he filed the urgent application in question seeking the interim
relief as set out in the draft Provisional Order filed of record. The
learned Judge agreed with the third and fourth respondents that the matter was
not urgent because, so he found, the need to act arose in 2010 and not in
August 2013.
In our view the need to act clearly only arose in August 2013 when the
appellant got to know that the land had been actually sold without his
involvement. In this regard the need to act could not have arisen in 2010
because no definite steps had been taken to sell or otherwise dispose of the
land. It should be stressed that the appellant was not opposed to the
sale of the land. His stance was that such sale should not take place
without his involvement. The court a quo was therefore wrong in
concluding that the matter was not urgent.
We pause to
mention at this stage that having found the matter not to be urgent the court a
quo should simply have issued an order that the matter be removed from the
roll. In these circumstances it serves no purpose to proceed to deal with
the other issues raised in the application.
Having found, as we have, that the matter was urgent it becomes necessary to
deal with the question of the appellant's locus standi. The
court a quo accepted that the appellant had an interest in the affairs
of first respondent by virtue of his 30% shareholding as well as an indirect
interest in the second respondent but nevertheless went on to find that the
appellant had no locus standi to make the application and dismissed
the application on that additional basis.
We are satisfied that the court a quo erred in so doing. All
that was required of the appellant at that stage was to establish a prima
facie right to the relief sought. In our view the appellant did
establish such a right by virtue of the fact that he was a 30% shareholder in
the first respondent which held all the shares in the second respondent which
in turn wholly owned the land in question. It having been established
that part of the land had been sold there can be no doubt that he had a legal
interest in the determination of the application in the High Court.
The question of the misjoinder of fourth respondent was not an issue before the
Court a quo nor was it a ground of appeal but has been raised in the
heads of argument and in submissions before us. In view of the order
sought by the appellant in the court a quo which if granted would
clearly impinge on the rights and obligations of the fourth respondent, we find
no merit in this argument.
Regarding the order sought, Mr Mpofu has conceded that
paragraph 6 of the interim relief sought is inappropriate at this stage and
should be deleted. Accordingly paragraph 6 is hereby deleted from the
draft order.
In the result it is ordered as follows:-
1. The appeal succeeds with costs.
2. The judgment of the court a quo is
set aside and substituted as follows:
“The Provisional Order is granted in terms of the draft order as amended by
the deletion of paragraph 6 thereof.”
GARWE JA:
I
agree
PATEL JA:
I
agree
Mtetwa & Nyambirai, appellant's legal practitioners
Hussein Ranchod & Company,1st, 2nd
& 3rd respondents' legal practitioners
Sawyer & Mkushi, 4th
respondent's legal practitioners
