There are two matters in this case.

The first matter, HC1369/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under case number HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The background facts of the matter are the following:

The applicant is the first born son of Jackson Moyo, the last Chief Bunina of Lower Gweru, who died sometime in June 2003. In turn, the late Jackson Moyo had taken over the chieftainship as substantive Chief Bunina from his late father, Mantiya. After the death of Jackson Moyo, the applicant was appointed acting Chief Bunina in May 2004 and his term as acting Chief was set to expire, and did expire, in May 2006.

Meanwhile, meetings were conducted between Ministry of Local Government officials and the Bunina family to select the substantive Chief Bunina where the first respondent emerged as a claimant to the throne.

It is common cause, that, the late Chief Bunina had more than one family, i.e. he had different wives: the eldest of which was the mother of Mantiya, the applicant's grandfather, who also ruled as Chief Bunina. The first respondent's father, Mkoba, was one of the sons of Chief Bunina's wives.

The first respondent's claim to the chieftainship does not seem to be based on a recognizable Ndebele system of succession, custom, or tradition of the clan but merely on some kind of election or poll conducted by Local Government officials.

This is captured in the memorandum dated 28 August 2006 from the Midlands Provincial Administrator to the Minister of Local Government, Public Works and Urban Development. In this memorandum, the Provincial Administrator states:

“1. Subject to the Traditional Leaders Act [Chapter 29:17], section 3, the President shall appoint Chiefs to preside over Communal and Resettlement areas.

2. Subject to subsection 2, the President shall give due consideration to the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside, and the administrative needs of the communities in the area concerned in the interest of good governance.

3. The last incumbent in the Bunina Chieftainship was Golden Moyo whose acting term has since expired. In line with the requirement of Circular No.38 of 2004, the District Administrator held a selection meeting on the 21st of June 2006. The meeting was chaired by D.A. Kwekwe, Ms Muzenda, assisted by D.A. Gweru, Mr Maguma, with the Provincial Administrator and Mr Mukwaira (Traditional Support Services Director).

Though there was no succession among the family, what sufficed was that Stephen Mkoba was chosen by the majority of the houses. The decision to appoint Stephen Mkoba from the families, though non-procedural and non-congruent with either the bilateral or collateral system was welcome by this office in the best interest of the Chieftainship as continued squabbles derail the operations of Chiefdom.

4. This office support [sic] the nomination of Stephen Mkoba I.D. 29-063837 B29 as substantive Chief Bunina premised on the above-mentioned light….,.”…,.

The applicant protested this nomination of the first respondent to the President's office resulting in the selection process being re-opened.

The Minister of Local Government gathered stakeholders in 2007 and advised them to consult among themselves promising to return to finalise the process.

Before the above-mentioned recommendation was sent to the Minister, there was a selection meeting held on 21 June 2006. In this meeting, the Mantiya family, Mkoba family, Lugwalo family, and Mpabanga family were represented. The applicant, the first respondent, the second respondent attended the meeting. A total of twenty-two persons represented the above-mentioned family.

At this meeting, the Mantiya family traced their chieftainship as having come with Bunina from Matojeni with a group of followers who came and settled in the Lower Gweru. According to them, the chieftainship did not cascade across to the brothers but to the sons i.e. bilateral system of succession. In this regard, Mavu's descendents, being the eldest wife, were eligible to the throne. The Mantiya family highlighted the fact, that, although the Bunina's were of Rozvi origin, their ancestors inherited the Ndebele customs and culture following their defeat by the Ndebele in the pre-colonial era. Accordingly, in terms of the Ndebele system of succession their chieftainship was passed from father to son.

The Mkoba version was contrary to that of the Mantiya family.

The Mkoba version enjoyed the support of Lugwalo and Mpabanga families. Their version was, that, there was a battle between the whites and the Bunina community which resulted in the latter being victorious and ultimately being appointed Chief by government of the day.

As is to be expected, the meeting was acrimonious and hotly debated.

After all these processes and debates, a recommendation was made by the Minister of Local Government, Public Works and Urban Development (4th respondent) to the President of the Republic of Zimbabwe (5th respondent).

In exercise of his powers, the President appointed the first respondent the substantive Chief Bunina on 7 May 2007.

This appointment is in accordance with the Rozvi principles of succession. The President, in his wisdom and discretion, did not follow the Ndebele system of succession.

It is this appointment, really, that resulted in these two matters.

This appointment was done in terms of section 3 of the Traditional Leaders Act [Chapter 29:17] (“the Act”) which provides -

“3. Appointment of Chiefs

(1) Subject to subsection (2), the president shall appoint Chiefs to preside over communities inhabiting communal and resettlement areas.

(2) In appointing a chief in terms of subsection (1), the President –

(a) Shall give due consideration –

(i) The prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside; and

(ii) The administrative needs of the communities in the area concerned in the interest of good governance; and

(b) Wherever practicable, shall appoint a person nominated by the appropriate persons in the community concerned in accordance with the principles referred to in sub-paragraph (i) of paragraph (a):

Provided that, if the appropriate persons concerned fail to nominate a candidate for appointment as chief within two years after the office of chief became vacant, the Minister, in consultation with the appropriate persons, shall nominate a person for appointment as chief….,.”

I have highlighted above, that, the most contentious issue is whether the Ndebele or Rozvi system is applicable in determining the succession battle for the Bunina chieftainship.

It is trite, that, although chiefs are envisaged as hereditary holders of office it is only official recognition by the President that carries with it the title of Chief.

In practice, the President frequently appoints the person holding traditional title to the chieftainship, but, he is not obliged to do so.

Section 3(2) of the Traditional Leaders Act obviously implies that the President “should give dire consideration to the customary principles of succession, if any, applicable to the community over which the Chief is to preside,” as investigated by Ministry of Local Government officials, in particular the second respondent. But, once the investigation has been made, the President is free to act as he thinks best in the interests of good governance of the community: Muwuungani v Minister of Native Affairs 1957 R & N 298 (FC)…,.; 1957 (2) SA 544 (FC): and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC)…,.

In Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC), MANYARARA JA…, had this to say -

“The clear meaning of the provision is that the President is required to 'give due consideration to the customary principles of succession', not to follow them in making his choice.”

In other words, section 3 of the Traditional Leaders Act provides the President with an unfettered discretion in the appointment of a chief.

The President has exercised this discretion and appointed the first respondent as substantive Chief Bunina. The President exercised this discretion after supporters of rival candidates were consulted through the second, third and fourth respondents.

This exercise of executive powers by the President cannot be reviewed.

Accordingly, the applicant's case should fail. I therefore order as follows:

(1) That the provisional order granted by this court on 10 September 2009, under HC1396/09, be and is hereby discharged with costs.

(2) That the application filed under HC1410/09 be and is hereby dismissed with costs.

On 4 July 2007, the first respondent, through Messrs. Mkushi, Foroma & Maupa Legal Practitioners, addressed a letter to Messrs. Magwaliba, Matutu & Kwirira. The letter reads in part:

“We write to you at the instance of Ms. E. Khetani and Ms. Lukungwe, who are both Directors of Bryden Technical Services. Our clients advise that on 30 April 2007, they made a resolution to dispose of the above-mentioned property, but they were yet to appoint a company representative to sign the requisite documents on behalf of the company. We are advised that Mr. Michael Hanyani, one of the Directors, had proceeded to negotiate the price as well as granting power of attorney to yourselves to do the needful.

Our instructions are that the other two Directors never authorised Mr. Hanyani to act in the manner he did, and he acted on his own volition without any company resolution to that effect, implying that whatever was negotiated, and concluded, by him without the authority of the other Directors, is null and void. This includes any Agreement, if one has been concluded, as well as the power of attorney to yourselves.”

The reasons for seeking to annul the Agreement of Sale are clearly different from those advanced by Mr. Michael Hanyani, the Managing Director, in his letter of 29 June 2007...,.

Faced with the apparent effort to resile from the contract, by the first respondent, the applicant applied for, and obtained, a provisional order from this court on 11 July 2007. The interim relief granted was to restrain, and interdict, the first respondent from disposing of the property in dispute, and that the order be registered as a caveat against Deed of Transfer Number 2190/2000.

The applicant now seeks the confirmation of the provisional order granted then, which is basically an enforcement of the Agreement of Sale.

The first respondent opposed the confirmation of the provisional order. The first respondent's basic grounds for opposing the order were that:

1. The first respondent did not accept the offer made by the applicant; and

2. The Managing Director, Mr. Michael Hanyani, had no authority to accept the offer, and to negotiate the selling price.

The applicant's position was to the effect that the Agreement of Sale he entered into was valid, and should, thus, be enforced.

The applicant entered appearance to defend, and engaged the services of a legal practitioner.

The matter was set down for a hearing but the applicant, and his legal representative, failed to appear for the hearing. The court, accordingly, entered a default judgment.

The applicant filed an application for rescission, which was dismissed.

The reasons for the dismissal were that the applicant had failed to comply with Order 30 Rule 2(a) and (b) of the Magistrates' Court Rules in that the applicant did not state, in his affidavit, the reasons for his failure to attend court on the appointed date and time. He also did not state his defence to the action. Further, the applicant did not pay into court as security for costs.

The applicant then noted an appeal to the High Court against the dismissal of his application for rescission. Thereafter, he applied for the stay of execution of judgment, which was also dismissed. He finally applied for, and was granted, a provisional order, which is the subject of these proceedings.

This matter was first filed under cover of a certificate of urgency on 9 July 2004. A provisional order was granted whereby the first respondent, who is now the first defendant, and all those claiming through him, were ordered to vacate House Number 3722, Emganwini Township, Bulawayo, forthwith, failing which the Deputy Sheriff was authorized to eject them. The second and third respondents were interdicted from selling the said house in the interim.

On the return day, the court ordered that it be referred to trial on the papers that had been filed of record that far, with subsequent pleadings following from that stage.

The issues that the parties wanted to be determined by the trial court were formulated as follows -

“(1) Who is the rightful owner of Stand 3722, Emgnwini between plaintiff and first defendant?

(2) Who paid for the Stand and who paid the construction (sic) of the house?

(3) Who bought the materials for the construction of the house?

(4) Who is known to be the owner of the house by the second defendant?

In the provisional order issued in her favour, the operation of the order in favour of the first respondent was stayed pending the filing and determination of an application for joinder by the applicant in the main matter in which the eviction order had been obtained, and an application to have that Order set aside.

The applicant, a subsidiary of the Reserve Bank of Zimbabwe, set up a diamond mining plant at Kleimport Farm near Gweru. The plant itself is located on claims known as 20 and 21 at the farm.  The applicant has been mining at the site and processing the diamonds at the plant in question for 3 years.

It is alleged that the respondent, who is a member of Shuma Mining Syndicate, started intruding at the processing plant belonging to the applicant sometime in May 2010. He is accused of forcibly taking away the applicant's stock book and forcibly gaining entry into the plant. He announced to the employees that he had taken over the mining operation of the applicant and got the employees to sign new employment contracts to the effect that they are now employed by Shuma Mining Syndicate of Gweru.

It has not been disputed that Kleimport Farm, on which the diamond plant is located, was previously owned by one Magiel Casper Jovner but was gazetted for compulsory acquisition by the responsible Minister and it is now State land. The respondent has not denied intruding at the diamond plant but has instead sought to argue extraneously that the farm belongs to Magiel Casper Jovner and that the applicant is mining without the approval of the said Magiel Casper Jovner who has since entered into a Tribute Agreement with Shuma Mining Syndicate. In the respondent's view, this entitles him to move into the property.

In addition to that, the respondent maintains that the applicant is winding up operations and as such the Governor of Midlands Province has allocated the mining claims occupied by the applicant to Shuma Mining Syndicate and Women in Mining. He has not submitted any document, let alone evidence, to substantiate that claim. Only an agreement entered into between one Magiel Casper Jovner and Shuma Mining Syndicate has been produced. The said Magiel Casper Jovner has also deposed to a supporting affidavit claiming to be the owner of the farm and the mining claims over it and alleging that the applicant is in illegal occupation of the property.

This is an opposed application where the applicant seeks confirmation of a provisional liquidation order granted on 24 March 2010, which order read as follows-

“1. The applicant, RADIATOR & TINNING (PRIVATE) LIMITED, is provisionally would up, pending the grant of an order in terms of paragraph 3 of the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:03], THERESA GRIMMEL is appointed as provisional liquidator of the above company with the powers set out in section 221(2)(a)-(g) of the Companies Act [Chapter 24:03].

3. Any interested party may appear before the court sitting at Harare on 5 May 2010 to show cause why a final order should not be made placing the applicant company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4.A copy of this order shall be served on the applicant at its registered office.

5. This order shall be published once in the Government Gazette, once in the Herald, and once in the Chronicle newspapers in a Friday edition. Publication shall be in the short form annexed to this order.

6. Any person intending to oppose or support the application on the return day of this order shall:

(a) Give due notice to the applicant at Coghlan Welsh & Guest Legal Practitioners, 3^rd Floor Executive Chambers, 16 George Silundika Avenue, Harare, ref: N. Moyo.

(b) Serve on the applicant a copy of any affidavit which he files with the Registrar of the High Court.”

The applicant, in its application filed on 9 March 2010, has, in terms of section 207 of the Companies Act [Chapter 24:03] petitioned this court for the above relief because, as per the founding affidavit-

“(i) The company is unable to pay its debts;

(ii) The company has resolved, by special resolution, to wind up;

(iii) I believe that it is just and equitable that the company be wound up so that the assets of the company can be liquidated to provide for some equitable distribution to creditors.”

In its founding affidavit, the applicant also states the following-

“Applicant has 102 employees, and its outstanding wage bill is US103,215=. The company has no prospect of generating enough money to settle this bill.”

Indeed, on 22 February 2010, at a special meeting of shareholders held at Helier, Jersey, the Directors of the applicant had passed the following resolutions-

“(i) It was resolved that the notice period required for the holding of a Special General Meeting be waived.

(ii) It was resolved that Radiator & Tinning (Private) Limited be put into “Members Voluntary Liquidation” due to the inability of the Company to continue to meet its obligations.

(iii) It was resolved that Jeremy Hodgskin, ID No. 08-051413-K00, be empowered to do all things and sign all documents in regard to effecting and facilitating this liquidation.

(iv) It was resolved that Robert Charles Jenkinson, ID No. 63-010327-K00, be empowered to do all things and sign all documents in regard to effecting and facilitating this liquidation.

(v) It was resolved that Theresa Grimmel be appointed Liquidator.”

The second resolution above, relating to members voluntary liquidation, is the one to occupy us in this judgment. It is on the basis of that resolution that the applicant then approached this court for the relief it seeks.

The provisional order…., was published in both The Herald and The Chronicle on 9 April 2010 and 30 April 2010 respectively.

On 8 June 2010…, the respondents…., filed their notice of opposition in which they raised the following points in limine-

“NON COMPLIANCE WITH THE PROCEDURE

With respect, I am reliably advised by my esteemed counsel, which advice I embrace, that the procedure as laid down in section 25A(4)(a) of the Labour Act [Chapter 28:01] and section 25A(5)(c) of the Labour Act [Chapter 28:01] was not followed before the matter was filed in this Honourable Court. It is respectively submitted that the applicant should have conducted a Works Council meeting with the workers in order to discuss its financial status and the way forward but this was not done. At the same time nothing was attached to the petition to the effect that such communication had been done to the workers. I will leave my legal counsel to deal with the legal issues in the Heads of Arguments to be filed with this Honourable Court.

EXISTENCE OF MATERIAL DISPUTE OF FACTS

This matter is full of material disputes of facts which can only be cured by leading evidence from witnesses as will be elaborated from para 3 downwards. I therefore pray that the Honourable Court allows oral evidence to be led during the hearing.”

The background to the matter is that on 4 April 2002, Marko entered into an Agreement of Sale with the Bernwin, whereby Marko purchased the property in issue for five million dollars ($5,000,000=). It was a term of the agreement that Marko would pay a deposit of one million two hundred thousand dollars ($1,200,000=) upon signature of the agreement “or such longer period not exceeding seven days as the Developer may consent.” The balance was to be paid in instalments of $100,000= per month for a period of thirty-eight (38) months starting on 1 April 2009.

On 8 August 2003 Bernwin left a cheque, in a letter box, payable to Marko, in the sum two million eight hundred thousand dollars of ($2,800,000=). It was not accompanied by any explanation. Richard took the cheque to their legal practitioners on 22 August 2003. The legal practitioners wrote to Bernwin asking for an explanation. Bernwin responded by letter dated 2 September 2003 advising that the Agreement of Sale between their client and them was duly cancelled on 4 August 2003 after this client had been given due notice on 15 July 2003.

It was cancelled as the client had breached the terms of the agreement.

Sometime in 2003, Tawanda entered into an agreement of sale with Bernwin whereby he purchased the property. Sometime in 2005 he had the property transferred to him under Deed of Transfer No. 00 5415/05. He took occupation in 2006 triggering the urgent application for spoliatory relief.

As these events were unfolding, and on 10 November 2003, Marko instructed his legal practitioners to write a letter notifying would be buyers that the property was not available for sale. The letter was given to Mr Mois, the gardener, who was in occupation of the property. He was instructed to show it to would be buyers.

At the initial hearing of this matter, it was observed that the provisional order had not been confirmed or discharged.

In the final order, Marko sought that Tawanda restores possession and occupation of the property to him permanently. The parties agreed that that matter be consolidated to the present matter. The order for consolidation was granted. Tawanda did not file any opposing papers. He only filed heads of argument.

The applicants in this matter sought and were granted a provisional order on 7 January 2010. The terms of the order were as follows:-

“Interim relief granted

Pending determination of this matter, the applicants are granted the following relief:

(1) The respondents are interdicted from taking any steps to evict the applicants from the property described herein or from carrying out any building or farming operation or from removing any stock or cattle being the property of the applicant or from introducing onto the farm any stock or cattle either owned by the third respondent or by any third party.

(2) It is ordered that until such time as the relief set out in the final order is determined the applicants and all those who occupy the farm through them are entitled to remain in peaceful and undisturbed possession of the farm and further entitled to continue farming operations on the property and the third respondent is interdicted from taking any steps to occupy the farm either himself (sic) or through any agent, servant or employee or to hinder or disturb the applicant in his occupation thereof.”

The third respondent has anticipated the application seeking to have the provisional order discharged.  The final order being sought by the applicants was in these terms:-

“Terms of final order sought

That you show cause to this Honourable Court why a final order should not be made in the following terms:

(1) That until such time as the ownership, or right to occupy the property known as Orange Groove (hereinafter called “the farm”), is determined by a court of competent jurisdiction, and until such time as the applicants are lawfully evicted by such court and has exhausted all legal remedies available to him, the respondents are interdicted from evicting the applicants or from taking occupation of the farm. It is further ordered that the respondents are interdicted from interfering in any way with any of the farming operations carried out by the applicants or their employees or servants or from entering the farm or placing property or employees thereon (save as may be provided by law).

(2) That in the event that by the time this order is granted the applicants have been evicted or the third respondent has taken occupation of the farm, then it is ordered that the third respondent or any person occupying the farm through him (sic), be and is hereby evicted and the applicants be restored to possession thereof.

(3) That the respondents jointly and severally, one paying the others to be absolved pay the costs of this application.”

The respondent in this matter has anticipated the return date of a provisional order granted by this court on 1 April 2010. Its terms were that pending the finalisation of the matter the respondent be ordered and directed to take all reasonable steps to forthwith suspend the commencement of the 2010 Division One Southern Region League. The respondent was to further, forthwith, communicate the suspension of commencement of the 2010 Division One Southern Region League to all participating teams and to the applicant's legal practitioners.

The circumstances giving rise to the urgent chamber application were that on 25 January 2010 the Zimbabwe Football Association Southern Region addressed the following letter to the applicant-

“The Secretary

Khami United Football Club

BULAWAYO

Dear Sir,

Re:  Confirmation of Admittance to Division (1) League.

We write to you on this instance confirming your admittance to our Division One League, having finished on second position in Division 2A stream in 2009 season.

We take this opportunity to congratulate you on your promotion and hope you are going to cope with the dictates of our league.

Yours in sport

S.B. Ntenezi

“Secretary)”

On 18 February 2010 the respondent, for reasons best known to itself, only addressed the following letter to the applicant -

“Re: Division Two Play OFFs

ZIFA Southern Region has indicated that our runners up in Division 2A and B respectively should be engaged in play offs for promotion to Division One for the 2010 season.

The winner between your team and Cosmos will qualify for play offs against the winner in Matebeleland North Province. The date for the play offs is 27 February 2010 at 1500 hours at a venue yet to be advised. 

You are therefore advised to make suitable preparations for the tournament.

Yours in Sport

Washington Chimanda

(Secretary General)”

The applicant, despite the above letter of confirmation of admittance to Division One League, participated in the play-offs as directed by the respondent and won all the matches. The applicant then believed that it earned the right and legitimate expectation to be promoted to Division One League for the 2010 season.

But alas, that was not to be as the respondent, by a letter dated 22 March 2010, advised the applicant that it would not be promoted to Division One League after all.

This turn of events prompted the applicant to launch this application on a certificate of urgency and was granted a provisional order.

The final order which the applicant seeks to be confirmed calls on the respondent to show cause why an order should not be made in the following terms -

“(1) The decision of the respondent not to promote the applicant to Division One League for the 2010 season despite applicant qualifying for such promotion, be and is hereby declared to be unreasonable and unfair, and a contravention of section 3(1)(a) of the Administrative Justice Act [Chapter 10:28].

(2) The respondent be and is hereby ordered and directed to promote and admit the applicant to Division One League for the 2010 season.

On 11 November 2009, the applicants applied for and were granted a provisional order whose terms were that pending the final determination of that application and the outcome of a review application which they were to institute within seven (7) days of the order, the writ of eviction and execution in case numbers 268/09; 666/09; 659/09; 660/09; 667/09 and 663/09; be set aside and its operation be suspended. In the event that at the time of the order they already had been evicted, the order would act as an order restoring to them the possession of the flats they had hitherto occupied and would entitle them to the return of all property which may have been removed pursuant to the writ of eviction.

The parties agreed to anticipate the return date. The final order which the applicants are seeking is as follows:-

“It is ordered that:-

1. The decision of the Bulawayo Magistrate's Court in case numbers 268/09; 666/09; 659/09; 659/09(sic); 660/09; 667/09; 664/09; be and is hereby set aside for want of jurisdiction of the court; and

The applicant was granted, on 10 November 2009, a provisional order which was amended to read as follows in the interim order granted:-

“Pending the finalization of this matter, applicant be and is hereby granted the following relief:-

1. The respondents be and are hereby ordered and directed to forthwith take all reasonable steps and do every act necessary to unblock or re-connect the passage of water through the underground pipeline from the borehole along the Save River bank on one part of Lot 5 through Lot 8 into the main part of Lot 5 of Devure Ranch;

2. If the respondents fail to forthwith unblock the passage of water pumped into the underground pipeline through Lot 8 into the main part of Lot 5 of Devure Ranch, the Deputy Sheriff be and is hereby directed and authorized to act in the respondents' stead and do all acts necessary to unblock the passage of water through the underground pipeline into applicant's Msaize Ranch in Lot 5 of Devure Ranch.

3. The members of the Zimbabwe Republic Police, based at Bikita Police Station shall ensure full compliance with this provisional order by all the respondents jointly and severally, whether directly or through their agents or employees.”

In the final order the respondents were being called upon to show cause why a final order should not be made in these terms:-

(1) Pending finalization of the administrative process of the applicant's claim and registration of a permanent servitude of passage of water in favour of Lot 5 of Devure Ranch against the respondent's Lot 8 of Devure Ranch in terms of section 75 of the Water Act [Chapter 20:24], the respondent and all those acting on its behalf be and are hereby interdicted from blocking or interfering with the passage of water through the underground pipelines that run from the part of Lot 5 where the borehole and water pump were installed, through Lot 8, into the rest of Lot 5 of Devure Ranch.

(2) The respondent be and is hereby ordered to pay the costs of suit.”

On the 6^th October 2008, the first respondent issued summons out of this court seeking an order compelling transfer of Stand 20027 Pumula South, Bulawayo from the applicant to himself. In that action, he alleged that he had purchased that property from the applicant and that a written agreement had been signed on the 22^nd September 2005.

Subsequent to that, a chamber application for default judgment, dated 3rd November 2008, found its way into the court record. I say so because that application does not bear the issuing stamp of the Assistant Registrar of this court. In fact, the only document which is stamped out of that entire application is the return of service which bears the High Court date stamp of the 9th October 2008. According to that return of service, which has since been disowned by the Deputy Sheriff, the summons was served upon the applicant on the 7^th October 2008, and on N. Tsheza, the Housing Officer, at Pumula and Hydepark Estate Housing office, Bulawayo, on the same date.

I shall return to the return of service in question later.

That application for default judgment was supported by an affidavit deposed to by the first respondent on the 3^rd November 2008 in which he repeated that there was “a written agreement of sale” between him and the applicant. Significantly, that agreement was not attached to the summons and declaration or, indeed, to the application for default judgment. 

It has never been produced.

The matter was placed before NDOU J who granted default judgment on 12th November 2008 on the strength of the return of service indicating that the summons and declaration had been served.  

Acting on the strength of that court order, the first respondent secured transfer of Stand 20027 Pumula South, Bulawayo from the applicant's name to his name.

The applicant later discovered the transfer and filed an urgent application seeking to reverse the transfer and alleging that not only did he not sell the property to the first respondent but also that he did not even know that character. According to the applicant, the first respondent acted fraudulently in obtaining judgment against him which allowed him to take transfer of the property. She alleged that the court was induced by a fraudulent return of service to grant default judgment against her - which judgment is a nullity by virtue of that fraud. A provisional order was granted in favour of the applicant on the 9^th February 2010, the interim relief of which was to place a caveat on the disputed property and to interdict the first respondent from disposing of or alienating the property.

The first respondent has contested the confirmation of the provisional order.

He argued that the application has come rather late in the day because after obtaining transfer he went on to sell the property to “the Sibandas” who are now staying at the property and therefore that the issue is incapable of reversal.

1. ….,.

2. ….,.

This an application for the confirmation of a provisional order, granted on 23 February 2011, for the winding up of the 1^st and 2^nd respondents (the respondents). The latter companies were the tenants of the applicant and jointly operate a tobacco auction floor under the trade name of Zimbabwe Industry Tobacco Auction Centre together with their sub-tenants.

The applicant avers that the respondents have failed to satisfy an arbitral award for moneys owed that was granted in its favour on 16 April 2010 and registered by this Court on 19 May 2010. Together with sales commission and arrear rentals due, the total amount that the respondents owe the applicant stands at US$460,800=. The applicant further contends that the respondents' confirmed liabilities of US$1,630,800= exceed their assets of less than US$100,000= and that they have no prospect of recovery in the future as they were not granted an auction licence for the 2011 season.

The respondents' preliminary objection is that the provisional order in this case was granted unprocedurally for a number of reasons.

On the merits, they contend that the applicant has ignored their goodwill and volume of business, approximating US$6 million annually, which must be included in the valuation of their tobacco auction business. Therefore, their assets far exceed their liabilities. Their auction licence for 2011 was not granted because of an interdict by this Court preventing the Tobacco Industry Marketing Board from issuing the licence. The respondents have applied for the interdict order to be set aside and the matter is still pending. Moreover, soon after the provisional order was granted, the provisional liquidator voluntarily vacated the leased premises. Both the interdict and provisional liquidation were manipulated by the applicant to wrongly evict the respondents under the guise of liquidation. Before their provisional liquidation, the respondents had loan facilities with ZABG Bank and did not owe any arrear salaries to their employees. Again, their trading debts due were normal and the income that would have been generated in 2011 would have sufficed to satisfy those debts. The provisional liquidator's interim report is grossly inaccurate in understating their assets and income and in inflating or falsifying their liabilities.

In short, the respondents argue that they are not insolvent and that the provisional order should be discharged with costs de bonis propriis or on an attorney and client scale….,.

Whether Provisional Order has Lapsed

At the hearing of this matter, counsel for the respondents raised the new point that the original return date for confirmation of the provisional order was 17 May 2011, and, because the date was not extended, the order lapsed on that date. Consequently, there is no provisional order to be confirmed. Reliance for this submission is placed upon Ex parte S & U TV Services (Pty) Ltd 1990 (4) SA 88 (WLD) and Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Another 1991 (3) SA 812 (ZHC)…,.

As against this, counsel for the applicant explains that the respondents filed their notice of opposition on 16 May 2011 - the day before the return date. Because the matter could no longer proceed on the Unopposed Roll, he argues that there was no need to extend the provisional order once it was opposed. He relies for this proposition on the decision of the Supreme Court in Militala N.O. & Others v Zimbabwe Textile Workers Union & Others SC67-11. According to counsel for the applicant, it was held that a provisional order for liquidation or judicial management, whether it is opposed or unopposed, does not lapse until it is confirmed or discharged.

My reading of the cases relied upon by both counsel is that they do not meaningfully support their respective arguments. In the Ex parte S & U TV Services (Pty) Ltd 1990 (4) SA 88 (WLD) case, the applicant applied for, and obtained, an order for its own provisional winding up. On the extended return day, there was no appearance on behalf of the applicant and the rule nisi was therefore expressly discharged by order of the court. An application for its revival 3 weeks later was refused because matters would no longer have been res integra at that stage. The Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Another 1991 (3) SA 812 (ZHC) case involved a dispute over a right of pre-emption incorporated in an order of court. The return day of the relevant rule nisi was postponed but the rule itself was not extended accordingly. It was held that the postponement of the return day ipso facto extended the rule nisi to the new return day. In my view, both of these cases are distinguishable on their facts and findings from the present matter and do not really advance the position of the respondents.

Although applications for winding up and judicial management are similar in nature, they are not necessarily identical in terms of the processes involved and their objectives….,. Rule 247(3) of the High Court Rules stipulates the procedural requisites of a provisional order for sequestration or winding up as follows:

“Where a provisional order relates to the sequestration of an estate, the winding up of a company or any other matter in which interested parties generally are to be given an opportunity to oppose the granting of a final order, the provisional order shall -

(a) Be in Form 29D; and

(b) Specify the date and place at which the court will hear argument on the confirmation of the provisional order; and

(c) Specify the manner in which the provisional order is to be published and, where appropriate, the persons on whom copies of the provisional order, together with all supporting documents, are to be served.”

The relevant paragraphs of the provisional order in casu are in the following terms:

“1. The 1^st and 2^nd Respondents' companies…, are provisionally wound up pending the granting of an Order referred to in paragraph 3 or the discharge of this Order.

2. …,.

3. Any interested party may appear before this Court sitting at Harare on the 17^th May 2011 at 10.00 am to show cause why a Final order should not be made placing the Respondent Company (sic) in liquidation and ordering that the costs of these proceedings shall be the costs of liquidation.

4. Pending the return day, this Order shall operate as a Provisional Order of winding up.

5. …,.

6. …,.

7. Any person intending to oppose or support the application on the return day of this Order shall…, give due notice…, and…, serve…, a copy of an affidavit which it (sic) files…,.”

It is abundantly clear from the Rules, as read with the terms of the provisional order, that the return day is critical to its confirmation or discharge. What appears from the papers, and from submissions by counsel, is that the respondents filed their notice of opposition the day before and that the applicant attempted to extend the provisional order. It is not clear how this attempt was made or why it was unsuccessful. What is clear is that the provisional order was not confirmed, discharged or extended on the stipulated return day. Ordinarily, this would entail the conclusion that it has lapsed and is no longer extant for the purposes of these proceedings. While this conclusion seems inescapable, I am loath to endorse it in the circumstances of this case for the following reasons:

…,. The respondents were placed under provisional liquidation over 24 months ago. Thereafter, other creditors have lodged their claims and the provisional liquidator has issued his interim report. At this juncture, it is of cardinal importance to have regard to the general advantage and benefit of all the persons concerned or interested in the matter. The Court should be less inclined to interfere at a late stage in the winding up process than it would be at an early stage in that process. See Ma-Afrika Groepbelange (Pty) Ltd & Another v Millman and Powell N.N.O. & Another 1997 (1) SA 547…., in the context of an application for the removal of a liquidator.

After hearing submissions by both counsel, I ordered that the provisional order granted by this court on 29 June 2011 be discharged with costs on the ordinary scale. I indicated that reasons for doing so will follow in due course. These are they.

The applicant is an association of residents at Westgate Security Complex a residential facility owned by the first respondent to provide accommodation to its employees. This facility appears to have been extended to other tenants who are not employees of the first respondent. The electricity and water bills at Westgate Security Complex are in the name of the first respondent and the latter pays for the bills. The first respondent thereafter recoups the same from the residents. The first respondent disconnected electricity in the camp to houses occupied by members of the applicant. Members of the applicant consequently instituted an urgent chamber application seeking urgent relief in the form of an order restoring the status quo ante. A provisional order was granted.

The respondents filed opposing papers.

As the provisional order staying execution had been granted to allow her to prosecute the rescission of judgment application, it follows that it must be discharged.

(1) ….,.

Counsel for the respondent…, argued that the remedy of spoliation was availed to the applicant at the time that he obtained interim relief. In his view, at the stage of confirmation of the provisional order, the court cannot ignore the fact that respondent has proved ownership of the disputed strip. Instead, the court should bring finality to litigation by protecting the right of ownership.

I do not agree.

I am not sitting to determine the right of ownership. In fact, there is no such application before me and I am not fully equipped to determine who has better title. That is what has to be determined when the parties institute proper proceedings for the resolution of the boundary dispute.

I agree, though, that the terms of the final order sought by the applicant are too vague and generalised as not to give a definitive direction the matter should follow. There is need to place the parties on terms as to the finalisation of the dispute. In the result, the provisional order made on 17 June 2011 is confirmed in the following terms; that

1. The respondent be and is hereby directed to stop interfering with the applicant's occupation of property identified by land surveyor Ignatio Sean Maingehama as Lot 2 of Biano of Woodlands Umzingwane including the disputed strip pending the proper determination of the boundaries.

2. The applicant should institute proceedings for such determination within 14 days from the date of this order.

3. The respondent shall bear the costs of suit on an ordinary scale.

The provisional order granted to the applicant was predicated upon a valid application being made to challenge the termination of the applicant's contract of employment. There is no such application in existence.

It must be discharged….,.

(1)…,.

(2) The provisional order made on 13 July 2006 is hereby discharged.

The applicant (Elphas Kawa) is a shareholder of the second respondent (Zexcom (Pvt) Ltd) (in provisional liquidation) in terms of an Order granted by this Honourable Court on the 27^th February 2013. 

By virtue of the Order, the first respondent was interdicted and prohibited from disposing, selling or in any way alienating or encumbering all or any of the immovable properties of the second respondent. 

The applicant seeks confirmation of the provisional order, which, inter alia, seeks the nullification of all agreements of sale which the first respondent purportedly entered into with the fifth and sixth respondents or any other person purporting to dispose of the second respondent's immovable properties….,.

The Provisional Order was granted on the 27^th February 2013. The Court, in the exercise of its discretion, deemed the matter urgent before granting the order sought. 

It is the respondent's contention that the applicant has not satisfied the requirements of an interdict as they have an alternative remedy in terms of Section 24(7) of the Companies Act [Chapter 24:03]. 

In the case of ZESA Staff Pension fund v Mushambadzi SC57-02, ZIYAMBI AJA…, stated the requirements for a final interdict as follows:

(1) A clear right which must be established on a balance of probabilities.

(2) Irreparable injury actually committed or reasonably apprehended.

(3) The absence of a similar protection by any other remedy.

The applicant, upon realising that the respondents were then using a name that is likely to cause it prejudice or harm, should have first sought to find protection in the remedies available to it, like section 24(7) of the Companies Act [Chapter 24:03], through lodging of a complaint with the Registrar as in seeking a final interdict, the applicant would be expected to meet all the requirements of an interdict - including the absence of any other protection.

The applicant's counsel unfortunately fails to address the third requirement for an interdict; that is to say that the applicant did not have an alternative remedy at the time that these proceedings were instituted.

In the answering affidavit…, wherein the issue of the availability of an alternative remedy was raised, the applicant simply says:-

“This is a matter which is so peculiar by the respondent's apparent desire to mislead the public through the case of Applicant's trading name that the Applicant had no choice but to resort to the relief sought. Applicant reserves the right to choose the most appropriate remedy and it is for the court, not the Respondent, to determine whether or not such a remedy is sustainable at law.”

The applicant's counsel, in his submissions, does not address fully the aspect of the non-availability of another remedy. 

Whilst the applicant may have satisfied the first two requirements for an interdict, as correctly pointed out by CHATUKUTA J, in the case of Chirenje v Vendifin Investments P/L and Others HH04-05, the applicant has a duty to satisfy all the requirements for an interdict - not some of them. It is the totality of all the three requirements that would win the applicant an interdict in this court. Therefore, even if the applicant does satisfy the first two requirements for a final interdict, but the third requirement, of a lack of any other alternative remedy, is not satisfied. This clearly means that the Applicant would have failed to show or prove before this court, on a balance of probabilities, that he is entitled to the relief of a final interdict. Refer to Mabhodho Irrigation Group v Kadye and Others HB08-03; L.R Boshoff Investments (Pty) Ltd v Capetown Municipality 1969 (2) SA 256 (C)…,. 

This remedy does not fall within the mould of ordinary judicial remedies.

Accordingly, I find that the applicant has failed to show before this court that he is entitled to the final interdict sought as he has not fully challenged the availability of, nor averred the absence of, an alternative remedy. For this reason alone, this application accordingly fails.

This is an application for confirmation of a provisional order that was granted on 17 June 2014. The terms of the provisional order were to the following effect:-

“INTERIM RELIEF GRANTED

Pending the return day, the following relief is granted:

1. The 1^st respondent be and is hereby interdicted and barred from taking occupation of, or bringing cattle onto the piece of land, namely, a farm known as Subdivision A of Centenary, measuring 1,304,5441 hectares situate in the Bulilima District.

2. The 2^nd respondent is interdicted from taking any steps to evict the applicant from the farm described above.