The unanimous view of the Court is that the appeal has no merit.

The appellant went to the High Court seeking the enforcement of a personal right, namely, to take transfer of certain immovable property against payment of the purchase price in terms of the Agreement of Sale.

The High Court granted the order sought by the appellant. The order granted the appellant personal rights which were conditional upon payment for the property within three days. To date, there has been no payment. Having been granted a personal right, the principle of res litigiosa could not be the basis for a vindicatory action for the recovery of the immovable property purchased by the fourth respondent at a time he was unaware of the rights of the appellant.

The fourth respondent paid for the property and had it registered in its name.

In the court a quo, the appellant sought a declaration to the effect that the first respondent had lost dominium in the property by virtue of it having become res litigiosa at the closure of pleadings on 24 March 2006.

It was conceded before the court a quo, and before this Court, that the first respondent had not lost dominium in the property. The effect of the concession is that the court a quo could not have granted the declaration sought. Counsel for the appellant, however, argued that the Court ought to have granted an order which was consistent with the law.

The Court found that the order sought to be enforced granted personal rights which could not be enforced on the basis of the principle of res litigiosa. As such, the court a quo could not have granted the alternative relief suggested by counsel for the appellant in argument. The appellant had not complied with the order granted in his favour whilst the fourth respondent was not only a bona fide purchaser without notice of the appellant's personal right but had paid for the property and taken transfer.

Paragraph 1 of the draft order having fallen away, the court a quo correctly found that the consequential orders seeking specific performance also fell away.

The Court finds that there was no misdirection on the part of the court a quo.

I would accordingly dismiss the appeal with costs….,.

Accordingly, it is ordered as follows:

1. The appeal is dismissed with costs.

In Chambers in terms of Rule 31 of the Rules of the Supreme Court (“the Rules”).

This is an application for an extension of time in which to note an appeal against the whole judgment of the High Court given on 27 February 2008.

The applicant and the third respondent were married to each other until the High Court granted him a decree of divorce on 22 February 2005 in case no. HC8877/03. The High Court made an order with regard to the division of the assets of the spouses.

Of relevance to the determination of this application is the fact that the third respondent was awarded 80% of the market value of the matrimonial house situated at Stand No.2711 Mahogany Circle, New Marlborough, Harare (“the property”). The applicant was awarded 20% of the market value of the matrimonial house.

The order further directed that:

“5. If the parties cannot agree on the value of the matrimonial home within ten (10) days of the date of this order, the property is to be evaluated within 30 days thereafter by a registered firm of Estate Agency agreed upon by the parties legal practitioners or failing such agreement by an Estate Agent nominated by the Registrar of this Court.

6. The cost of evaluation are to be borne by both parties in equal shares.

7. The plaintiff shall pay to the defendant on or before the 1st of November 2005, 20% of the net value of the property.

8. Failing compliance with the provisions of clause 7 above, the matrimonial home shall be sold on the open market to the best advantage and the net proceeds therefrom to be shared between the parties as set out in the paragraph above.”

On 16 June 2004, the applicant had obtained, from the High Court, an interdict prohibiting the second respondent from registering transfer of the property without her prior written consent.

On 11 August 2005, the first respondent entered into an agreement of sale with the third respondent in terms of which he sold and she purchased the property for $750,000,000. She paid the purchase price to the third respondent's conveyancers.

At the time she entered into the agreement of sale, the first respondent was not aware of the court order awarding the applicant 20% of the value of the property.

When she subsequently got to know of the order, she raised the question of its possible effects on the sale of the property. The third respondent assured her that the order would not affect transfer of the property into her name provided the applicant was paid the 20% share of the value of the property.

Upon request by the third respondent, she authorized the release of $150,000,000, which was 20% of the purchase price, into his bank account for payment to the applicant.

The applicant confirmed, in the founding affidavit, that an amount of $149,000,000 was paid into her bank account.

After the payment of the purchase price by the first respondent, the applicant instituted an appeal against the order of the High Court.

A perusal of the record in case no. HC8877/03 shows that the appeal had been noted out of time.

It appears that there was an application for an extension of time in which to note the appeal which was granted.

The Notice of Appeal, however, remained fatally defective for non-compliance with Rule 29(1)(d) of the Supreme Court Rules. Under the heading 'Grounds of Appeal' it is stated as follows:

“1. With new evidence before the court, the court a quo's apportionment of shares in the matrimonial house called House No.2711 Mahogany Circle, New Marlborough, Harare is amendable.

2. Without all evidence, the court a quo failed to award Stand 6839 Borrowdale.”

By no stretch of imagination can it be said that what is stated constitutes grounds of appeal against the order given by the court a quo on 22 February 2005 in case no. HC8877/03?

In light of the appeal which the applicant had purported to institute, the third respondent sought to cancel the Agreement of Sale.

The first respondent rejected the cancellation and commenced action in case HC1545/06 claiming an order against the third respondent of specific performance of his obligation to transfer the property into her name. She also claimed an order of upliftment of the caveat of 16 June 2004 and eviction of the applicant and all those claiming the right of occupation of the property through her.

The third respondent did not appear at the trial to oppose the claim. A default judgment was entered against him. That had the effect of confirming the third respondent's right to transfer of the property.

The court a quo found that the first respondent had adduced sufficient evidence to establish her entitlement to an order of upliftment of the bar. It granted the order. The decision took into account the fact that the applicant had not adduced evidence in opposition of the granting of the order.

The applicant had defended the claim on the ground that the order of 22 February 2005 gave her a real right in the property.

The court held that her right was to have 20% of the proceeds of the sale of the house. It held that the right was enforceable against the third respondent and could not operate to defeat the transfer of the property to the first respondent in terms of the Agreement of Sale.

The judgment was given on 27 February 2008.

The Registrar had given notice to the parties, through the roll of the court relating to unopposed matters for that day, that the judgment was to be handed down.

Whilst the legal representative of the first respondent attended court to note the handing down of the judgment; neither the applicant nor her legal practitioner attended.

No appeal was instituted against the judgment within fifteen (15) days as is required by Rule 30(a) of the Supreme Court Rules.

The applicant averred, in the founding affidavit, that she had knowledge of the judgment for the first time on 22 August 2008 when a copy of it was served on her by the Deputy Sheriff.

On 26 August she filed a notice of appeal with the Registrar. The document contained all the formalities required by Rule 29 of the Supreme Court Rules to be stated in a Notice of Appeal.

Strict compliance with the mandatory requirements of the provision of Rule 29 suggests that the applicant had read the relevant Rules before noting the appeal.

The Notice of Appeal was, however, fatally defective because it was filed six months after the date the judgment appealed against was given.

Rule 30(a) of the Supreme Court Rules had not been complied with.

No application for condonation of failure to institute the appeal within fifteen (15) days of the date the judgment was given and extension of time in which to appeal was made in terms of Rule 31 of the Supreme Court Rules.

The explanation given by the applicant for non-compliance with the Rules was that she was a self-actor. She said she did not know that she was required to make an application for condonation of non-compliance with Rule 30(a) of the Supreme Court Rules and extension of time in which to appeal.

She said she did not know that the Notice of Appeal was defective.

On 13 November 2008, the first respondent's legal practitioners wrote to the Registrar drawing her attention to the defective Notice of Appeal. The letter was copied to the applicant.

Notwithstanding the fact that the letter made it clear that the effect of the defective Notice was that there was no appeal against the judgment, the applicant did not act to regularize the situation.

On 25 November 2008, the Registrar wrote to the first respondent's legal practitioners accepting the contention that there was no appeal against the judgment of the High Court given on 27 February 2008. The letter was copied to the applicant.

She did not act immediately to secure compliance with the Rules of Court. It was sixteen (16) days later that the applicant made an application for extension of time in which to appeal.

The explanation for failure to act, after having been made aware of the defective Notice of Appeal and consequences thereof was again that the applicant was a self actor. She pleaded ignorance of the requirements of Rule 31 of the Supreme Court Rules.

The factors a court has to consider in the determination of an application for condonation and extension of time in which to appeal have been stated in numerous decisions of this Court and the High Court.

In Maheya v Independent African Church SC58-07, it is stated…, that:

“In considering application for condonation of non-compliance with its Rules, the court has a discretion, which it has to exercise judicially, in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) Avoidance of unnecessary delays in the administration of justice.”

See De Kuszab Dabrowski Uxor v Steel N.O. 1966 RLR 60 (A)…,; Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,; Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S).

The period of time marking the delay by the applicant in taking steps to note a valid appeal is nine months. The right to appeal is now dependent on the exercise of the court's discretion.

The application was made on 8 December 2008. The inordinate delay may be divided into three parts:

(i) The first part extended from 27 February to 26 August 2008.

(ii) The second extended from 27 August to 25 November.

(iii) The last part extended from 26 November to 7 December 2008.

The applicant gave different explanations for her inaction during each of the three periods of delay:

(i) In relation to the first period of delay, she said that she had no knowledge that the judgment had been given on 27 February.

(ii) In respect of her inaction in the second part of the period of delay, she said, as a self-actor, she was not aware of the requirements of Rule 30(a) of the Supreme Court Rules. She said she was also not aware of the provisions of Rule 31 of the Supreme Court Rules providing a remedy to a party who would have failed to exercise the right to appeal against a judgment of the High Court timeously.

(iii) She had no explanation for her inaction during the last part of the period of delay.

Is the explanation of the delay reasonable?...,.

In Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…, GUBBAY CJ cited with approval from Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) where…, MULLER JA said:

“Where there has been a flagrant breach of the Rules of this Court in more than one respect, and where, in addition, there is no reasonable explanation for some periods of delay, and, indeed, in respect of other periods of delay, no explanation at all, the application should not be granted whatever the prospects of success may be.”

As I am unable, in this case, to go so far as to hold that the applicant was in flagrant breach of the Rules of this Court, I have considered the question whether there are good prospects of the appeal succeeding despite the finding that there is no reasonable explanation for the inordinate delay in making the application for extension of time in which to appeal.

The grounds of appeal were stated as being that:

“1. The court a quo erred at law and in fact in failing to uphold that the appellant's appeal in HC8877/03 had an effect of suspending the whole judgment of the High Court in the divorce proceedings.

2. The court a quo erred in fact and at law by holding that the appellant had no real rights over the disputed property known as Stand 2711 Marlborough Township of Stand 2575 Marlborough Township.

3. The court a quo misdirected itself by failing to regard the appellant's evidence that the interdict obtained by the appellant on 16 June 2004 had an effect of interdicting any transfer of the disputed property pending the determination of the appeal in case no. HC8877/03.

4. The court a quo erred in fact and at law by failing to uphold that the cancellation of the agreement of sale by the third respondent was valid and lawful.”

One looks at the founding affidavit for evidence of the facts stated as grounds of appeal.

Considering these facts together with the reasons for the judgment appealed against and applying the relevant law, one can decide whether there are good prospects of success on appeal.

All that is stated in the founding affidavit on the grounds of appeal is this: the applicant said:

“20. I strongly believe that there are prospects of success on appeal. I say so because -

1. As appears from the Notice of Appeal, I insist that there was a valid and lawful cancellation of the Agreement of Sale.

2. I was also not satisfied by the court's ruling that the issue between me and the first respondent was whether or not I had a real right to the property.

3. For instance, if the Appeal Court in case no. HC8877/03 were to up my share from the 20% given by the court a quo to a higher percentage, this would affect the issues of enforceability of the judgment. This aspect is normally addressed by way of giving one party a time frame within which to pay out the other party of its share failing which that property can be sold and the proceeds are shared.

4. Assuming the transfers were to be done to the so-called innocent buyer, and then the Appeal Court were to up my share, such court order would be difficult to enforce. The house, in a case of this nature, is a surety that one gets their share.”

Nothing is said in the founding affidavit about the first ground of appeal.

What was stated in the Notice of Appeal against the judgment of 22 February 2005 did not constitute grounds of appeal required under Rule 29(1)(d) of the Rules of the Supreme Court. There would be no valid appeal pending in the Supreme Court against the judgment in case HC8877/03.

In any case, the appeal would not have been instituted against the whole judgment of the court a quo. There was no appeal against the order granting the decree of divorce. The court a quo could not have erred in failing to hold that the appeal suspended the whole judgment in case HC8877/03 when in fact the appeal could not have had that effect.

It is clear from the founding affidavit that the applicant took issue with the fact that the court a quo perceived the question in dispute between her and the first respondent as having been whether she had real rights in the property.

Contrary to the contention advanced in argument on her behalf by counsel, the applicant was not even claiming that the order of the court in case HC8877/03 gave her real rights in the property.

She did not challenge the fact that the right she was given was 20% of the share of the value of the house. Her view was that 20% of the value of the property was too low.

These facts do not render any support to Ground No.2 of the defective Notice of Appeal.

The law is to the effect that the person in whose name immovable property is registered is prima facie its owner.

The order of the court a quo did not alter the fact, that, as the third respondent was the person in whose name the house was registered, he was the sole holder of the real rights in it.

It must be borne in mind that the rights of spouses in the division, apportionment or distribution of assets upon dissolution of marriage, are dependent upon discretionary remedies.

In this case, in the exercise of the broad discretion conferred on it, the court, in case HC8877/03, gave the applicant a right to 20% of the value of the property as opposed to 20% share of the real rights in the property. It was not a share in a joint ownership of the house.

The third respondent could sell the property to a third party without the consent of the applicant
provided he paid her 20% of the proceeds.

That right did not give her power to veto the exercise by him of the right to dispose of all the real rights he alone held in the house as long as the sale met the conditions prescribed by the order.

There is no basis in fact on which the allegation in Ground No.2 of the defective Notice of Appeal could be established.

On the third ground, the interdict did not in fact have the effect the court a quo was accused of having disregarded. It preceded the judgment in HC8877/03 and did not interdict transfer of the property pending determination of the appeal against that judgment. 

What the interdict prohibited was the registration of transfer of the property without prior written consent of the applicant. In other words, the interdict would have given the applicant an absolute right to veto the transfer of the property even when the subsequent order gave her the right to 20% of value of the property with no power to veto the sale of the property to best advantage.

So, even if the applicant adduced evidence, it would not prove that the interdict had the effect of prohibiting transfer of the property pending the determination of the appeal in case no. HC8877/03….,.

On the 6^th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:-

“TERMS OF FINAL ORDER SOUGHT

The Provisional Order granted in this matter be and is hereby confirmed in the following terms:-

1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540.

2. Respondent to pay costs of this suit at Attorney-Client Scale.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle Nissan Maxima Reg No: AAX 4540 be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under case No: HC121/09.

SERVICE OF ORDER

Service of this Urgent Chamber Application and Provisional Order shall be done by the Deputy Sheriff, Bulawayo upon the Respondent.”

The historical background of this matter is that the respondent was a complainant against the applicant in a criminal case, No. HC592/08, which was dealt with at Bulawayo Magistrate Court. The said proceedings are presently under review under Case No. HC121/09. He was charged with fraud and was convicted of the same. While awaiting sentence, and was in custody, he was visited by the trial magistrate (Mrs. Phathekile Msipa), prosecutor, the complainant and his wife. This visit resulted in him ceding his vehicle, a Nissan Maxima Registration number AAX 4540 to the complainant as restitution.

The proceedings at the prison and the subsequent sentence that he received prompted him to make an application for review referred to above.

While awaiting the outcome of the review, it is the applicant's position that the respondent began looking for a buyer so that when the review proceedings are finalized the vehicle in question would have been disposed of.

After perusal of this application, I ordered that the respondent be served and the matter was argued on the 5^th of March 2009.

The respondent file a notice of opposition.

His contention is that there was no urgency in this matter, and, as such, the applicant should have proceeded by an ordinary application. His reasons are that the cause of action arose on the 2^nd of December 2008 and the respondent has been in possession of the vehicle ever since. The applicant filed an application for review on 26 January 2009 and filed the urgent chamber application on 6 February 2009 which was served on him more than three months after. It is for that reason that he is of the view that there is no urgency.

The circumstances under which the applicant surrendered the motor vehicle to the respondent, while awaiting sentence, if proved to have been irregular would no doubt result in the respondent returning the car to the applicant. In my view, he is aware of that as evidenced by his frantic efforts to dispose of the motor vehicle with haste. It is for that reason that the applicant sought to prevent the disposal of the motor vehicle pending the finalization of the review application.

For that reason alone the matter became urgent and this application was therefore justified.

The respondent has argued that the applicant's surrender of his motor vehicle to him was above board as it was done freely and voluntarily. To buttress his argument, it is his submission that even the applicant's legal practitioner, Mr. Munjanja, relied on the said restitution in mitigation.

I don't see how the submission by Mr. Munjanja, that the vehicle in question is now in the hands of the complaint, can be proof of a voluntary surrender in the absence of an explanation. Mr Munjanja was merely confirming that the respondent was now in possession of the motor vehicle and not the circumstances surrounding the possession.

It is also his argument that he has already disposed of the motor vehicle to his brother who is based in the United Kingdom. He is of the view that the applicant's review application will fail as the surrender of the motor vehicle was voluntarily made.

This is yet to be proved and must be weighed against the potential prejudice to the applicant. The court cannot rely on his mere say-so.

The circumstances surrounding the “surrender” of the vehicle as compensation for the motor vehicle are, to say the least, surreptitious. In addition to this, the respondent's haste in the disposal of the vehicle is questionable. The trial magistrate's name has been mentioned and is being implicated in some wrongdoing. If her involvement in this matter is found to have been outside the call of duty, the proper administration of justice would have been seriously compromised. In order to clear herself of wrongdoing the Chief Magistrate should investigate her role in this matter without delay.

The question, therefore, is, will the applicant suffer any irreparable harm if the provisional order is not granted?

In my view, indeed, the applicant will indeed suffer such harm and no adequate remedy will be available to him. It is therefore in the interest of justice that this motor vehicle should not be disposed of at this stage.

The following order is made:-

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle, Nissan Maxima Reg. No. AAX 4540, be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under Case No. HC121/09.

This is a court application for a transfer of property whose relief is couched as follows:

“It is ordered that:-

The Respondent be and is hereby ordered, directed, authorized and compelled to proceed with the transfer of Stand No.7204, Nketa 9 Township, Bulawayo from 1^st Respondent to Applicant's names notwithstanding any pending cases under HC113/03, HC1549/03, HC131/03 and HC176/07 and any other form of objections by 2^nd Respondent.”

The genesis as well as the facts and background to the application is briefly as follows:-

The applicant entered into an agreement of sale with the first respondent over Stand No.7204 Bulawayo Township. On the 19^th day of October 2006 the applicant lodged a proposed Title Deed with the third respondent who started processing the transfer.

During the said processing, the third respondent noted that there were the second respondent's papers together with a court application seeking to interdict the third respondent from transferring the said property before the finalization of a divorce action pending before this court.

The applicant's argument is that she is an innocent third party who was not informed by the first respondent that the property he was selling to her was subject of a matrimonial dispute.

The second respondent, on the other hand, argues that the applicant is not an innocent purchaser as she ought to have known that there had been a court application served on the third respondent regarding the property in question.

The divorce papers, together with the court application, being Case No. HC131/03, was served on the third respondent on the 7^th day of February 2003, the then second respondent under Case No. HC131/03. There was therefore a restriction on this property. The effect of the restriction was to warn all would-be purchasers to be on their guard. The applicant continued to process the transfer until she was stopped as is evidenced by the Registrar of Deeds' report of the 31^st of January 2007.

It should also be pointed out that the first respondent could not be served with the said court application as he was always avoiding service upon himself by the Deputy Sheriff.

The applicant, in support of her assertion of her innocence, filed an affidavit by Hlonipho Zondo who is in the conveyancing department of her legal practitioners. The affidavit is to the effect that, after the agreement of sale had been signed by the parties, he initiated the transfer process, only to be advised by the third respondent that the property had a restriction which he had not seen upon lodgment of the applicant's documents at the Deeds Registrar's office.

The question then, is, was there a restriction at the time of the lodging of documents by the applicant's conveyancers?

In my view, there was.

Had Hlonipho Zondo carried out a diligent search at the Deeds Registrar's office he would not have failed to see it.

In view of the above observations, the applicant does not qualify to be regarded as an innocent third party to this transaction.

The second respondent has claimed certain rights in the property which is subject of this application. That right has not been determined. This court is empowered, by section 7 of the Matrimonial Causes Act [Chapter 5:13], to stop any transfer or right to a property held by a third party in its distribution of matrimonial property.

The applicant's commencement of the transfer proceedings was not bona fide as she did so after the restriction had been placed on the property at the third Respondent's office.

For the above reasons, the application is dismissed with costs.

The applicant herein is a limited liability company incorporated in the United Kingdom.

The applicant seeks interim relief prohibiting the sale, or other dissipation, of the assets of and/or shares in the three respondent companies pending the finalisation of arbitral proceedings between the applicant and the first respondent. The final relief sought, in addition to this prohibition against sale or disposal, extends to the issuance of a declaratory order to the effect that the contractual dispute between the applicant and the first respondent has been properly referred to arbitration.

The applicant seeks a Provisional Order in the following terms as amended:

“TERMS OF INTERIM RELIEF SOUGHT

IT IS ORDERED:

1. That the first respondent's share certificates in Africa First Renaissance Corporation Limited be deposited with the Registrar, High Court, Harare pending the final determination of this application.

2. That the first respondent be and is hereby interdicted from transferring, disposing of or encumbering in any other way, their shareholding in Africa First Renaissance Corporation Limited pending the final determination of this application.

3. That the Respondents pay the costs of this application, the one paying the other to be absolved.

TERMS OF THE FINAL ORDER SOUGHT

IT IS ORDERED:

1. That in the event of the respondents failing to discharge all of their obligations towards the Applicant, including the payment of all capital amounts due and owing to the Applicant together with all interest accrued, by 30 October 2011, the first respondent's shareholding in Africa First Renaissance Corporation Limited, be transferred to the Applicant.

2. That the Respondents pay the costs of this Application jointly and severally, the one paying the other to be absolved.”

The facts presented to the court by the applicant are as follows.

Sometime in or around July 2009, the Reserve Bank of Zimbabwe issued to the applicant Zimbabwe Foreign Currency Bonds with a face value of US$2,392,044=93 with a tenure of six months. At the first respondent's specific request and instance, the applicant ceded the Bonds to the first respondent on the terms and conditions set out in an agreement signed on 22 September 2009. In terms of the agreement, the first respondent was obliged to pay the sums of US$957,070=26 on or before 12 January 2010 and the sum of US$1,434,974=67 on or before 2 February 2001. The cession was secured by the first respondent's listed investments whose face value at the time was in the region of US$5,700,000=. Although it was not specified, it was at all times understood that the listed securities related to the first respondent's shareholding of about 30% in Africa First Renaissance Corporation (AFRE), an insurance company.

Between 15 February 2009 and 18 May 2011, the applicant deposited with the second respondent a cumulative total of US$3,100,000= specifically for the settlement of the applicant's unnamed external creditors who also included its unnamed suppliers. It is alleged that the second respondent failed to settle the applicant's indebtedness to the external creditors and that it, instead, converted the amount to its own use. At various intervals, the applicant also gave the second respondent instructions to invest its money. The following are the directives which were given:

(a) On 3 March 2010, an instruction was given by the applicant to the second respondent to invest US$500,000= for one year.

(b) On 2 March 2011, an instruction was given by the applicant to the second respondent to invest US$2,000,000= for 30 (thirty) days.

It is alleged that in both instances the second respondent failed to repay the invested monies, including interest, into the applicant's account. The amounts were converted to the second respondent's own use.

Upon demand being made of the second respondent to settle these amounts, the first respondent acknowledged its indebtedness in the sums of US$3,1 million and US$2,6 million. It did so by way of a letter dated 25 April 2011. The letter, which was authored by the Executive Director and majority shareholder in the first respondent, one P.Timba, is headed:

“RE: SECURITY FOR ECONET FUNDS HELD BY RENAISSANCE FINANCIAL HOLDINGS GROUP (RFHL)”

The letter reads:

“Econet Wireless (Private) Limited deposited funds amounting to US$3,1 million with Renaissance Merchant Bank Corporation (“RMB”) and US$2,6 million with Renaissance Financial Holdings Limited (excluding interest). As security for the said amounts plus interest thereon, Renaissance Financial Holdings Limited, the holding company of RMB hereby cedes, transfers and makes over its 30% shareholding in Africa First Renaissance Corporation Limited (“AFRE”) to Econet Wireless (Private) Limited.

This letter shall constitute the instrument of transfer required in terms of the Companies Act in the event that the amount hereby secured or any part thereof is not paid in full by the 30^th of October 2011. RFHL hereby nominates and appoints Sheila Mugugu as its lawful attorney on its behalf to do everything necessary to ensure that registration of ownership of the shares is transferred into the name of Econet Wireless (Private) Limited in the event that payment is not effected as aforesaid.

If payment of the outstanding amount or any part thereof is not effected on the due date, the entire 30% shareholding of AFRE hereby ceded shall be transferred to Econet Wireless (Private) Limited and held by Econet Wireless (Private) Limited, provided that should a valuation be conducted by Deloitte & Touche, as an expert and not as an arbitrator, at the instance of either party, determines that the 30% shareholding in AFRE has a value that exceeds the outstanding amount. In that event, the excess shall be returned to RFHL. In the event that the valuation shows that the outstanding amount is more than the value of the shares, RFHL will pay the balance.” (sic)

The applicant understands that the 30% shareholding in Africa First Renaissance Corporation (AFRE), by whose cession the first respondent secured its indebtedness to it, constitutes the first respondent's major asset. The applicant also states that although the cession was effected on 25 April 2011, the first respondent was given up to 30 October 2011 to settle its indebtedness to the applicant. It states that the respondents' indebtedness is still to be settled.

In the applicant's founding affidavit, reference is made to media reports to the effect that the respondents may be facing liquidity problems and that after some investigations by the Reserve Bank of Zimbabwe it was reported, in the Financial Gazette of 19 to 25 May 2011, that the National Social Security Authority  was “considering a 'bailout' of the respondents.” It was also reported that the National Social Security Authority would be particularly interested in an investment in the first respondent because such an investment would give the institution access to the huge property portfolio held by Africa First Renaissance Corporation (AFRE) in which RFHL holds a 30% stake. It is further stated that as this is the same 30% stake ceded by the first respondent to the applicant in the letter of 25 April 2011, the applicant's legal practitioners immediately wrote to the respondents on 20 May 2011 seeking clarification of the contents of the newspaper article. A specific request was made in the letter that the shares be not disposed of before the applicant's indebtedness is settled.

The letter was copied to the Reserve Bank of Zimbabwe, the National Social Security Authority and the Ministry of Finance.

The founding affidavit also makes reference to the Financial Gazette of 2 to 8 June 2011 in which was reported that the same shareholding might be sold by one Jayesh Shah in respect of monies owed to him by the second respondent. The applicant states that the 30% shareholding in Africa First Renaissance Corporation (AFRE) and the shareholding in that newspaper report is the same 30% ceded to the applicant by the first respondent. The applicant states that it has become extremely concerned that the security which the first respondent ceded to it might be the basis through which third parties take over the affairs of the respondents without making any arrangements to settle the amounts admittedly owed to the applicant.

It is for this reason, the applicant states, that it has approached this court, on an urgent basis, to secure the first respondent's shareholding in Africa First Renaissance Corporation (AFRE) pending a resolution of its indebtedness to the applicant.

At the onset of the hearing in chambers, counsel for the respondents raised a number of preliminary points for the court's determination.

The facts established in this case

The applicants have satisfied what is expected of them in terms of the law as I perceive it. They allege, in their founding papers, that they purchased the Stands in question and that those Stands are being interfered with. The third respondent is alleged to have already advertised for the sale of the fourth and fifth applicant's Stands. It is not like the third respondent is a stranger to the issue of the Stands concerned. The fourth respondent is key player in this transaction and it has been correctly accepted by their counsel that an interdict be granted against it.

It is significant that Edward Jambaya, the first respondent's Managing Director, in the main action HC2097/10 did not, in his opposing affidavit in that matter, proffer meaningful defence to the main claim; neither did he, in that case, explain the interest of the fifth respondent who has just been joined in. The first respondent's main defence in the main matter, as can be gleaned from Edward Jambaya's affidavit, was merely to plead with the applicant to grant it  more time to fulfill its part of the bargain and not that the property was subject of a prior Sale Agreement by the fifth respondent as what the fifth respondent is now claiming.

Taking a holistic approach to this matter, it is clear that the applicants, the third, fourth and fifth respondents have an interest in the properties involved and it is only logical that the interim interdict be couched in such a way that it binds all the three respondents. Accordingly, the interim interdict sought is granted against the third respondents viz, third, fourth and fifth respondents.

TERMS OF FINAL ORDER SOUGHT

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

1. The respondents and/or their agents shall not sell, donate and or otherwise dispose the applicants' Stand Nos. 713, 714, 715 and the remainder of Stand No. 279 Helensvale Township, of Helensvale Harare.

2. The respondents and all those claiming through them shall vacate from and give vacant possession of Stand No. 713, 714, 715  and the remainder of 279 Helensvale Township Borrowdale, Harare to the applicants' upon service of this order.

3. The respondents' shall jointly and severally the one paying the other to be absolved, pay the costs of this application on a legal practitioner client scale.

INTERIM RELIEF GRANTED

Pending the determination of matter HC2097/10 –

The third, fourth and fifth respondents, their employees, or agents, be and are hereby interdicted from developing, disposing or alienating all or any of Stand Nos. 713, 714, 715 and the remainder of Stand 279 Helensvale Township of Helensvale, Borrowdale, Harare.

SERVICE OF THE PROVISIONAL ORDER

A default judgment was issued by this court on 8 July 2010. Its terms were as follows:-

“It is ordered that:-

(1) It be and is hereby confirmed that the plaintiffs have, in terms of section 4 of the Prescription Act, Chapter 8:11, acquired, by prescription, the undivided portion of the land bounded by Regina Mundi Secondary School to the north, Christmas Gift Extension to the east, Harare Road to the west and Grays Road, to the south – measuring approximately 229 hectares and constituting about 15% of the total land area of the Remainder of New Christmas Gift situate in the district of Gwelo held by defendant under Deed of Transfer number 820/1951 dated 12^th June 1951.

(2) The defendant be and is hereby ordered and directed to take all the steps necessary to formally subdivide the said portion of land as an individual unit from the Remainder of New Christmas Gift, in accordance with the provisions of the Regional, Town and Country Planning Act Chapter 29:12], and of the Land Survey Act [Chapter 20:12] pertaining to the subdivision of land, within (30) days of the date of this order.

(3) The defendant be and is hereby ordered and directed to transfer to the plaintiffs the sub-divided unit of land in terms of the Deeds Registries Act [Chapter 20:05] upon the completion of the formal subdivision.

(4) The costs of this suit be borne by defendant.”

The eight (8) respondents were plaintiffs in the above matter which was case number HC1985/09.

It admits of no doubt that service of summons in that matter was not properly effected. Summons was served at 100 Seke Road Graniteside, Harare instead of 7 Allan Wilson Avenue, Belgravia, Harare.

For this and other reasons, the defendant, who is the applicant in this matter, filed an application for the rescission of the default judgment and simultaneously filed an urgent chamber application seeking an order in these terms:-

“It is hereby ordered that:-

1. Pending the finalization of the application for rescission of the judgment granted in case number HC1985/09 to be instituted by the applicant against inter alia:-

JAMES KIYELA MOYO MAFOHLA

LIKOBA MAKASENGA a.k.a. RACOBA MAKASHINGA

HARUBVI MBEDZI

ALOUISA MUKARATI

POTE STEPHEN CHAMBOKO

PATRICK DZIVA

THOMAS MUNANGA

ONESIMO MUZANAGO

The above respondents being the first to the eighth herein. Such respondents be and are hereby interdicted from transferring, alienating, or in any way disposing or dealing, or attempting to transfer alienate, or dispose certain piece of land measuring approximately 229 hectares being 15% of the total land area of the remainder of New Christmas Gift situate in the District of Gweru, held by Christmas Gift (Pvt) Limited under Deed of Transfer number 820/1951 dated 12 June 1951.

2. Pending the finalization of an application for rescission of the order granted in case number HC1985/09, the applicant's obligations in terms of paragraphs 2 and 3 of the aforesaid order granted in case number HC1985/09 are hereby suspended.”

The above order, if granted, does not seem to be prejudicial to the respondents at all. A perusal of the application for rescission clearly reveals that there is a need for the parties to argue it before the respondents enforce the terms of the order granted in case number HC1985/09.

On the merits of the application, the papers before me show that the parties entered into an agreement, the spirit of which was that the applicant would inject money and stock into a joint venture. The second respondent would market the goods brought into the country on behalf of the applicant for a commission and was also paid an allowance. It would appear that at some stage the applicant wanted to suspend the joint venture agreement as a result of which the parties then signed a written agreement on 2 March 2012 the terms of which are clear, namely, that the goods or stock being marketed by the second respondent as representative of the first respondent were to be moved to another warehouse to reduce overheads at their then warehouse Number 1 Waynne Street Harare. In terms of clause 2.6, all the trading stock was to be placed under the control of one Tigist while the second respondent continued to market it. The arrangement was to subsist until 30 April 2012.

That agreement was extended, by an addendum signed on 17 May 2012, to 31 July 2012 at which time the applicant was to take over the responsibility of selling the outstanding stock. No further extension was made.

Subsequent to that, a dispute arose between the parties over ownership of those goods. This prompted the applicant to institute summons action, aforesaid, seeking an order determining the rights of the parties. The first and the second respondents are still to oppose that action, which was filed on 11 December 2012. What they have done though is to ignore the process and resort to removal of goods as if no litigation is pending.

I agree with counsel for the applicant that if the first and the second respondents' actions are allowed to perpetuate there would be nothing left for the court to determine in HC14184/12. Justice therefore demands that until such time that the respective rights of the parties are determined, the goods in dispute should remain secured.

I am therefore satisfied that a case has been made for interim relief barring the removal or disposal of the goods which are the subject of the agreement signed on 2 March 2012 and its addendum signed on 17 May 2012 until the dispute is resolved by the court.

It would appear from the summary of the State case, which was produced, that the allegations are of a complex nature in that the alleged criminal conduct was well-planned. It would seem to involve two or three complainants, that is, the Zimbabwe Association of Church Related Hospitals, Tristar Insurance Company, and, probably, Supreme Panel Beaters and the Chigwadas (applicants) as well. The summary indicates that at some stage or other all the complainants were duped through the alleged fraudulent conduct of Raymond Chidanyika and that the vehicle in question was subject of the alleged crime. There is also no doubt in my mind that after the trial, all, if not some, of the complainants, will institute legal proceedings with a view to vindicating the vehicle.

On 24 July 2013, I granted the following interim relief in favour of the applicant:

“That pending determination of the dispute between the applicant and the 1^st respondent by the arbitrator, the applicant is granted the following relief:

1. The 1^st respondent be and is hereby interdicted from using, selling, transferring, disposing or dealing in any other way with the 32 metric tonnes of maize held at Mash Co Premises, Mazowe Road, Centenary.

2. The Deputy Sheriff be and is hereby directed to place under attachment the said 32 metric tonnes of maize and hold the same under his custody at Mash Co Premises, Mazowe Road, Centenary pending finalization of arbitration proceedings between the parties.

3. The 2^nd respondent be and is hereby interdicted from paying the sum of US$80,810= to the 1^st respondent but that such amount, when due, shall be paid to the Sheriff of the High Court who shall hold the money in trust pending finalization of the arbitration proceedings between the applicant and the 2^nd respondent.”

The above provisional order followed an urgent chamber application by the applicant.

The brief facts were that the applicant had sold some 709 tonnes of maize to the first respondent on a 14 day credit term arrangement. The first respondent had failed to pay. The final balance due by the first respondent was said to be US$179,608=35 following a payment of US$98,100=. The credit term facility had an Arbitration clause. At the time of the hearing the arbitration proceedings had just been initiated. The applicant alleged that the first respondent was disposing of the maize to third parties and receiving payment but was refusing or failing to pay it. The second respondent was one of the third parties. It admitted owing the first respondent in terms of their own contractual arrangements.

The applicant further alleged that apparently the first respondent had had no capacity to raise capital for its business in the first place; that the first respondent had enticed the applicant to offer credit terms as a means of raising that capital and that it had no assets of its own other than the maize. On that basis, the applicant sought what it termed an anti-dissipation interdict to restrain the first respondent from disposing of the maize held for it by a company called Mash Co pending the determination of its claim by the arbitrator. The applicant said it feared that if the first respondent was not restrained as aforesaid any award in its favour by the arbitrator would be a brutum fulmen because there would be nothing left to levy execution on given that the first respondent was undoubtedly indigent.

What is an anti-dissipation interdict?

It is just an ordinary interdict to restrain the disposal of assets. In Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) both the court of first instance and the appeal court debated the propriety of the term 'anti-dissipation interdict'. None of them found the name quite suitable and none of them, for the case before them, could quite understand the content of such interdict. In the end, the appeal court was content to say that the South African courts had recognised this type of interdict for many years without giving it any specific name.

The full debate over the interdict is captured in the judgment of GROSSKOPF JA…,:

“The nature of the interdict sought by the petitioners is to prevent the respondents from concealing their assets. The petitioners do not claim any proprietary or quasi-proprietary right in these assets. It is conceded that the assets are the unencumbered property of the respondents. The interdict sought was therefore of an unusual nature. It is not the usual case where its purpose is to preserve an asset which is in issue between the parties. Here, the petitioners lay no claim to the assets in question. They merely allege a general right to damages. Moreover, the conduct on the part of the respondents which is sought to be interdicted is prima facie lawful. It is therefore not surprising that both the name of the interdict and its essential content have been the subject of some debate.

As far as the name is concerned, the petitioners referred to it as a Mareva-type interdict after the term used in English Law. The Court a quo did not like this name since the use of the English term might suggest that English principles are automatically applicable [see 1994 (3) SA at 705A – 706B]. I agree with this criticism. The alternatives suggested by STEGMANN J were not, however, much more felicitous. Thus he referred to an interdict in securitatem debiti and an anti-dissipation interdict. The former expression may suggest that the purpose of the interdict is to provide security for the applicant's claim. This is not so. The interdict prevents the respondent from dealing freely with his assets but grants the applicant no preferential rights over those assets. And 'anti-dissipation' suffers from the defect that in most cases and, certainly in the present case, the interdict is not sought to prevent the respondent from dissipating his assets, but rather from preserving them so well that the applicant cannot get his hands on them. Having criticised the names used for the interdict I find myself, unfortunately, unable to suggest a better one. I console myself with the thought that our law has recognised this type of interdict for many years without giving it any specific name.”…,.

The first respondent opposed the application. However, its affidavit was predominantly argumentative and wordy but too short on facts….,.

It seems that in an application for this type of interdict one of the major considerations is whether the respondent would still have sufficient property to satisfy any judgment that may eventually be given against him and whether the respondent's continued disposal of his assets is deliberately intended to frustrate any such judgment. That seems to be the rationale for the interdict. The principle was laid down in Mcitiki and Another v Maweni 1913 CPD 684. It was followed in Bricktec (Pty) Ltd v Pantland 1977 (2) SA 489 (T) and in the Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) case…,. In the Mcitiki and Another v Maweni 1913 CPD 684 case HOPLEY J laid down the principle as follows…,:

“It is said if one were to interdict a man like respondent in such circumstances from parting with some of his property so as to satisfy a judgment, one would be revolutionising the practice of this Court. The practice of this Court is to do justice between people according to the circumstances that may arise. It has, of course, long been the practice of this Court that if the respondent, although an incola, were in fuga, the Court would, in such circumstances, restrain him from parting with certain property pending the result of an action; and that doctrine has been extended a little further where the respondent is a prodigal wasting his money or is purposely making away with funds although remaining an incola of the country, so that eventually when his creditor gets the judgment it may be a barren one; and to use a graphic phrase in one of our old law cases, when he went there with his writ of execution, such creditor would find he was 'fishing behind the net'. It is to protect a bona fide plaintiff against a defeat of justice in such a case that such orders are given. The case cited such as David v Reinhard 8 E.D.C. 30; Robinson, Miller and Co. v Lennox and Another 18 C.T.R. 402; Fredericks v Gibson, C.T.R. 445, all have their distinguishing features, but they all proceeded upon the wish of the Court that the plaintiff should not have an injustice done to him by reason of leaving his debtor possessed of funds sufficient to satisfy the claim, when circumstances show that such debtor is wasting or getting rid of such funds to defeat his creditors, or is likely to do so” …,.

In the Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) case…, it was held that the purpose of such an interdict was to prevent the respondent from freely dealing with his own property to which the applicant lays no claim because justice may require such restriction in cases where the respondent is shown to be acting mala fide with the intention of preventing execution in respect of the applicant's claim even though there would not normally be any justification to compel a respondent to regulate his bona fide expenditure so as to retain funds in his patrimony for the payment of claims.

In the present case, the applicant presented evidence that in the face of a demand for payment, and in the face of its claim having been submitted for arbitration the respondent was still disposing of the maize but without remitting anything to the applicant.

That arbitration was a remedy available to the applicant was hardly a sound basis for opposing the interdict. In the Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) case that kind of argument was dismissed in the following terms…,:

“It is often said that an interdict will not be granted if there is another satisfactory remedy available to the applicant. In that context, a claim for damages is often contrasted with a claim for an interdict. The question is asked: should the respondent be interdicted from committing the unlawful conduct complained of, or should he be permitted to continue with such conduct, leaving the applicant to recover any damages he may suffer?

That is not the question which arises here. In the present circumstances there is no question of a claim for damages being an alternative to an interdict. The only claim which the petitioners have is one for damages. There is no suggestion that it could be replaced by a claim for an interdict. The purpose of the interdict is not to be a substitute for the claim for damages but to reinforce it – to render it more effective. And the question whether the claim is a satisfactory remedy in the absence of an interdict would normally answer itself. Except where the respondent is a Croesus, a claim for damages buttressed by an interdict of this sort is always more satisfactory for the plaintiff/applicant than one standing on its own feet. The question of an alternative remedy accordingly does not arise in this sort of case. The interdict with which we are dealing is sui generis. It is either available or it is not. No other remedy can really take its place (except, possibly, in certain circumstances [of] attachments or arrests)” …,.

On the facts before me, I was satisfied that not only was arbitration not a remedy to what the applicant feared, but also that there existed no other satisfactory remedy. The first respondent did not seem to have any source other than the maize from which to satisfy its contractual obligations to the applicant…..,.

It was the first respondent's argument that the relief sought by the applicant would cripple its operations and put it out of business.

However, I was not persuaded by that argument. The first respondent was a grain merchant. It sourced maize from disparate suppliers. The applicant was just one of them. The first respondent would then on-sell the maize to its own customers. It boasted of an ability to source the maize at so competitive prices as to enable it to on-sell to its own customers at considerable discounts, even coming down to as much as less than the price at which it would have bought the maize from the applicant. So what puzzled me was how an embargo on a paltry 32 tonnes could cripple and put the first respondent out of business. For the relief sought the applicant had identified and targeted a particular item – maize, and a particular quantity – 32 tonnes. The first respondent was free to trade in any excess of that commodity. I thought that the first respondent was concealing more than it was revealing.

The applicant sought before this court interim relief. The requirements that it had to meet before the court could grant it the said relief were originally stated in Setlogelo v Setlogelo 1914 AD 221 and were clearly repeated in Kenny Karimakwenda v Rumbidzai Bushu & Three Others HH156-04 as follows:

“(a) A prima facie right, even if it is open to doubt;

(b) An infringement of such right by the respondent or a well-grounded apprehension of such an infringement;

(c) A well-grounded apprehension of irreparable harm to the applicant if the interlocutory interdict should not be granted and if he should ultimately succeed in establishing his right finally;

(d) The absence of any other satisfactory remedy; and

(c) That the balance of convenience favours the granting of an interlocutory interdict.”

Regarding the first requirement, it is apparent on the papers that the indebtedness of Renaissance Merchant Bank Limited to the applicant was acknowledged in the letter of 25 April 2011 which I made reference to in my written ruling dated 16 June 2011. Furthermore, the letter tendered as security for Renaissance Merchant Bank Limited's debt the first respondent's 30% shareholding in Africa First Renaissance Corporation Limited to the applicant.

As the applicant had dealt with the author of the letter, one P Timba, in previous dealings, it had no reason to suspect that he did not have authority as now alleged by the first respondent.

In my assessment, the applicant has established a prima facie right to the shares even though such right may be open to doubt in view of the first respondent's stance that the author of the letter of 25 April 2011 had no authority from the first respondent to act as he did.

With regard to the second requirement, the papers show that the applicant became concerned due to an indication of an intention by the National Social Security Authority to take over the said 30% shareholding. Consequently, the applicant wrote to the first respondent requesting that an undertaking be made that its stake in Africa First Renaissance Corporation Limited (the 30% shareholding) was safe given the emergence of competing interests over the same shares. No undertaking was given. In fact, the said letter went unanswered and about ten days later this application was filed.

In my view, the applicant established, in these circumstances, a well-grounded apprehension that the shareholding which was ceded to it may be placed into other parties' hands by the first respondent.

The following pertinent facts appear from the second respondent's founding affidavit in its application for joinder:

“6. Upon assumption of office as curator and discharging my duties as such I discovered that RFHL and its 2 subsidiaries, Renaissance Securities (Private) Limited and Renaissance Uganda (Private) Limited owed the bank an unsecured debt of $11,694,984=68.

7. As I could not immediately obtain payment of the debt, I demanded security from RFHL and its subsidiaries. Acknowledgments of debt were obtained and the debtors ceded and pledged to me shares they held in Africa First Renaissance Corporation Limited (AFRE) as security for the due performance and discharge of their indebtedness to the Bank.

8. I attach hereto, marked as Annexures 'C' and 'D', acknowledgements of debts that were executed by RFHL and one of its subsidiaries, Renaissance Securities Limited, respectively.

9. I also attach hereto, marked Annexure 'E', a copy of the deed of cession and pledge that was executed by RFHL and the subsidiaries. An extract of the minutes of the board of RFHL authorising the execution of the acknowledgement of debt and the cession and pledge is also attached hereto as Annexure 'F'. (sic)

10. The pledged shares have also been delivered to me.”

A perusal of the acknowledgment of debt executed by the first respondent on 15 June 2011 shows that it states that if the amount due is not paid in full by due date, 30 June 2011, the entire balance shall become due and payable without notice and in consequences thereof any security held by the creditor, Renaissance Merchant Bank Limited represented by Mr R.F. Saruchera as curator, shall become executable.

It appears, in the circumstances, that in the event that the applicant eventually succeeds in persuading a court to find in its favour that the letter of 28 April 2011 is valid and the 30% shareholding in Africa First Renaissance Corporation Limited is consequently awarded to it, the result would be that if the second respondent has, in the meantime, sold such shareholding in terms of the terms of the said acknowledgement of debt of 15 June 2011, the applicant would be left holding a judgment in its favour which would be incapable of enforcement; a brutum fulmen. For these reasons it is also my view that the applicant established a well-grounded apprehension of irreparable harm if the interdict that it seeks is not granted. It has also, in the circumstances, established the absence of any other satisfactory remedy.

If the interim interdict sought is granted, the second respondent will not suffer any prejudice.

It appears apposite to also note at this stage that the acknowledgement of debt of 15 June 2011 was executed at a time when both respondents were aware that this court was seized with this urgent chamber application in which the subject matter constitutes the very same shares therein ceded to the second respondent by the first respondent. If the interim interdict sought is not granted, the applicant thus stands to suffer great prejudice. I thus found that the balance of convenience favours the granting of the Provisional Order.

The applicant's claim is for a provisional order seeking repossession of equipment and motor vehicles valued at US$1,558,068= 53 and US$96,000= respectively. Its cause of action is based on breach of contract on account of the first respondent's failure to pay the purchase price for the property sold in terms of the Agreement of Sale.

The second and third respondents are Directors in the first respondent company whereas the fourth respondent is leasing the property in question.

It is the applicant's case that the first respondent has demonstrated incapacity to pay. For that reason, it is now claiming repossession of the property sold in terms of a material term of the contract which provides for repossession of the property sold in the event of breach.

The order sought is meant to protect the subject of the dispute pending the determination of its claim against the respondents in case number HC2111/ 13. While the respondents admit to entering into some contractual arrangement with the applicant they challenge its validity on the grounds of illegality.

Considering that it is not in dispute that the applicant sourced the property and handed it over to the first respondent and it has not been paid anything, it can safely be inferred that the applicant has established that it is the owner of the property though the validity of the contact of sale is subject to debate. For that reason the applicant has a real and substantial interest in the preservation of the property in question. On the other hand, despite proven refusal incapacity to pay or compensate the applicant in the event of loss the respondents have simply fastened onto their unsubstantiated defence of illegality to justify their continued use of the property without paying for it to the loss and prejudice of the applicant.

The applicant's claim falls within the class of interdicts known as anti-dissipation interdicts which translates into a prohibitory interdict. All what the applicant has to prove in order to succeed is that it has a prima facie case as observed by CHATIKOBO J in Bozimo Trade & Development Co. P/L v Merchant Bank of Zimbabwe & Ors 2000 (1) ZLR 1 (H).

On the papers before me, I am satisfied that the applicant has, on the face of it, discharged the onus on a balance of probabilities. It is clear that the applicant is the source of the property in dispute. It has not been paid anything for the use of the property. In the absence of a clear demonstration of the capacity to pay compensation the respondents' continued use of the property without payment of either the purchase price or rentals is likely to lead to irretrievable prejudice to the applicant in the event that they lose in the main case.

While I am mindful that granting the order sought will inevitably lead to loss of business and employment that alone cannot justify the irreparable prejudice the applicant stands to suffer in the event that the respondents lose the main case. Had the respondent supplied security to cover the applicant against the severe prejudice it stands to suffer in the event that the respondents lose the main case I would have been inclined to let the respondents continue to use the property with the knowledge that the applicant will not suffer prejudice regardless of the outcome in the main case. The respondents' failure to provide such security leaves me with no option but to grant the relief sought. It does not seem to matter to me whether the dispute is about ownership of property or shares. The bottom line is that the property in question must be preserved pending the resolution of the parties' dispute by the courts.

The applicant is accordingly granted interim relief in the following terms:

1. That pending the final determination of this matter the respondents shall deliver all the machinery/ equipment set out in annexure “A” to the Applicant's Founding affidavit, and the motor vehicles (i.e. black Isuzu, white Isuzu and a Lupo) to the Deputy Sheriff of Zimbabwe, Harare within forty-eight (48) hours of service of this Order, failing which the Sheriff of Zimbabwe or his lawful Deputy, with the assistance of the Commissioner General of Police, and each and every member of the Zimbabwe Republic Police shall be authorized and empowered and ordered to give effect to this order.

The applicants and the first respondent are embroiled in a labour dispute. The dispute centres on the manner and procedure which the first respondent employed when it terminated the services of the applicants. 

These were terminated in July 2013.

It is not in dispute that the applicants were working for the first respondent prior to the termination of their contracts of employment. The first applicant was working in the capacity of Executive Director and the second applicant was the first respondent's Manager. They each earned a monthly salary of $2,500= and $4,000= respectively. The first applicant claims a severance package of $45,000= and the second applicant claims $70,000= as severance package. The first respondent was, or is, not prepared to go along with the applicants' claims. It offered them three months' salary each which the applicants are not prepared to accept. Their claims go to the root of this application. They want those claims to be satisfied either by the first respondent agreeing with the claims and paying each one of them what he says he is entitled to or by obtaining a court order which would allow them to attach and sell in execution so much of the first respondent's assets as will satisfy what the court or tribunal, will determine as being each applicant's entitlement.  

They, accordingly, referred their dispute to the Labour Office for determination….,.

The applicants' main concern is that, whilst the dispute between the parties is pending determination, the first respondent, they claimed, has commenced to dispose of its various assets which are in the country. They argued that the first respondent's owners are based in London. They stated, further, that the only connection which exists between the first respondent and them are the first respondent's assets. They said, if the assets are sold, the owners of the first respondent will take their money and leave Zimbabwe. It was their contention that any judgment or court/tribunal order which will be made in their favour when the assets are sold and gone will fall into a mere academic exercise which would not be of any assistance to them. They remained of the view that, in the event of their apprehension becoming a reality, both of them would suffer irreparable harm. This, therefore, is the reason which caused them to file the present application with the court on an urgent basis. They prayed the court to grant them the relief which they are seeking.

The applicants' submitted evidence which they hoped would convince the court to accept the claim that the first respondent has not only embarked upon the process of preparing to leave the country but is also asset-stripping with a view to realising what they think is its intended goal. They said the first respondent:

(i) Has effectively stopped operations and has not been fully operational for one whole year;

(ii) Has laid off all its workers except one;

(iii) Terminated their employment contracts;

(iv) Has commenced disposal of its various assets which are in the country;

(v) Has caused its motor vehicles to be offered for sale;

(vi) Has placed its other properties up for sale;

(vii) Has engaged in the process of taking several of its motor vehicles to Mozambique.

The first respondent filed its opposing papers and raised two preliminary matters before it proceeded to deal with the substantive issues of the case. The in limine matters which it raised were that:

(i) The application is not urgent; and

(ii) The applicants are approaching the court with dirty hands…..,.

The court has disposed of the preliminary matters which the first respondent raised. It, accordingly, proceeds to examine the application as a whole. Two matters remain a sine qua non of an application which is filed with the court on an urgent basis.

The matters in question are:

(a) Whether, or not, the matter/application is urgent; and

(b) Whether, or not, the applicants treated it with the urgency which it deserved.

The first respondent confirmed that its mother company was based in London. The decision which led to the impasse which exists between the parties was made in London and not in Harare. The first respondent stated in the letter which it addressed to the applicants that:

“This letter confirms our discussion regarding your termination of employment with Sable Mining and the terms of termination as advised to me by the London Office.”

That matter, taken together with the submissions which the applicants made in the foregoing paragraphs, tends to persuade the court to go along with the applicants' apprehension. The first respondent is, to all intents and purposes, a subsidiary company of its London based mother company. It may state, as it did, that:

(i) It has not ceased operations;

(ii) It is awaiting a further extension to its grant – and once that has been granted;

(iii) Its operations will recommence.

One does not know if its operations which it ceased for twelve consecutive months, according to the applicants, will recommence. The decision on that matter does not rest with it but with the London-based Head Office. The first respondent was not being candid with the court when it stated, in paragraph 2.2 of its opposing affidavit, that it still retained several employees both in Harare and in Binga. Whatever number of employees it retains, the first respondent, as a going concern, would most probably not decide to keep that number on stand-by giving to them their monthly salaries and/or wages when they are producing nothing in the vein hope that, as soon its grant has been extended, it would, with those employees, commence its operations. That, in the court's view, would not make any economic sense for the first respondent. Such an arrangement would not only be catastrophic to it but would also bleed its financial position to death. The word “recommence”, which the first respondent used, suggests that it ceased its operations. This suggestion is in tandem with the statement of the applicants. These stated that the first respondent laid off all its workers except one. The remaining one, in the court's view, is one Jacques Cormack. He is the one who deposed to the opposing affidavit and he is also the person who addressed letters to the applicants terminating their contracts of employment. He did so, as he stated in the letters, on the advice which the London-based mother company dished out to him.

The fact that the first respondent terminated the services of the applicants who, from the look of it, fell into the top echelons of its personnel, supports the applicants' claim which is to the effect that the first respondent's aim and object were to dispose of its assets and close shop. In support of their claim in this mentioned regard, the applicants attached to their application Annexure D. The annexure is a copy of the proforma invoice which one Trevor Butler of Mr Cruiser Toyota 4x4 Specialists forwarded to the second applicant. The annexure, the applicants claimed, served as proof of the fact that the first respondent was in the process of disposing of its assets. The first respondent attached to its opposing papers Annexure A. The annexure is a memorandum of an Agreement of Sale of a motor vehicle by the first respondent. The annexure served to show that:

(i) Annexures A and D are one and the same document;

(ii) The Agreement of Sale which relates to the annexure took place some months before the applicants' contracts of employment were terminated; and

(iii) The document cannot, therefore, be used by the applicants to establish the point that the first respondent was disposing of its assets in an effort to frustrate the applicants' claims.

A close examination and study of the annexures show that the two documents are separate and distinct from each other. The car which relates to Annexure D, though similar in make to the one which relates to Annexure A, is still in Mr Cruiser's yard waiting to be sold and the one which relates to Annexure A has already been sold and has, in that sense, left the yard from where it was being sold. That fact becomes pretty obvious when the dates which are on the two documents are taken account of. A further feature of difference which exists between the two documents is that the price guide for the car which is awaiting purchase (in Annexure D) is $42,000= whereas the car which was mentioned in Annexure A was sold for $16,000= “voetstoets”.

It is evident, from the foregoing, that the first respondent was working towards misleading the court when it attached to its opposing papers Annexure A. It did so in the hope that it was rebutting the claims of the applicants in the court's view.

The applicants stated, further, that the first respondent was in the process of taking several of its motor vehicles to Mozambique. The first respondent confirmed the applicants' averments in that mentioned regard. It, however, qualified its admission by stating that some four or five vehicles were superfluous to its needs in Zimbabwe and were, therefore, being transferred to the first respondent's sister company which was, or is, in Mozambique.

The applicants attached to their application Annexure E. The annexure is a list of assets which belong to the first respondent. They prayed the court to have those assets remain attached pending determination of the labour dispute which exists between the parties. The annexure comprises a list of seven motor vehicles, three refrigerated trailers and a house which is situated in Binga. The first motor vehicle which is on the list – with Registration number ABP 5008 – has already been sold to one Norman Richard Zangel of Boulevard Street, Binga. It was sold in terms of a Sale Agreement which was concluded on 13 May 2013 (Annexure A of the first respondent's papers refers). This, in effect, means that only six, and not seven, motor vehicles remain in the list. Where the first respondent transfers four, or five, of its motor vehicles which are in Zimbabwe to Mozambique, only one or two cars would remain on the list. It has not been established if those two cars and the trailers are of sufficient value to satisfy the applicants' claim - whatever it may be. The applicants stated that the first respondent's house in Binga has already been put up for sale. They said Keen Properties are handling the sale of the house. The first respondent denied that to have been the case. Its bare denial, read together with the subtle attempts it made to mislead the court at times and not to be candid with the court at other times, makes it hard, if not impossible, for the court to take the first respondent for its word. The court remains of the view that the first respondent is desirous of winding up its business in Zimbabwe, close shop and leave the country. 

One Tawanda Chakabva, who prepared the applicants' certificate of urgency, stated, as one of the reasons which prompted the applicants to file the present chamber application on an urgent basis, that “the alienation and disposal of the first respondent's assets is on-going, intense and at an advanced stage.”

It is when such matters as these are taken into account, together with the compelling submissions of the applicants, that it cannot be said that the applicants' apprehension is unreasonable. Their fear is real under the present circumstances.

The application cannot wait in the queue for its turn under normal court duty roster as the first respondent insisted. The dispute which exists between the parties may drag on for a considerable duration to such an extent that, by the time the dispute is resolved, there will be nothing with which the applicants would be able to satisfy their respective claims. The first respondent would, by that time, have successfully disposed of its assets in toto through sale as well as through the exercise of transferring some of them to its sister company or companies, closed shop and left the country. The applicants acted promptly in their effort to protect their interests. They approached the court as soon as they got wind of the first respondent's action. They realised that they stood to lose if they remained unassertive and allowed the first respondent a leeway to asset-strip and leave.

The court has considered all the circumstances of this application. It is satisfied that the applicants established, on a balance of probabilities, their case against the first respondent.

The application, accordingly, succeeds with costs.

THE CAVEAT

It is common cause that the award was served on the Registrar of Deeds. What is not clear is whether it was endorsed on the Title Deeds. The respondents argue that the negligence or fraud on the part of the Registrar of Deeds, in registering the transfers when the caveat was in place, cannot be attributed to them.

A case which is almost on all fours with the present matter is that of Mwayipaida Family Trust v Madoroba & Ors 2004 (1) ZLR 439 (S). The brief facts of the matter were that the appellant was an innocent second purchaser of an immovable property. The first purchaser had obtained an interdict against the seller, restraining her from transferring the property to anyone else. He served a copy of the order on the Registrar of Deeds who was instructed to endorse a caveat upon the Deeds of the property. The Registrar failed to do so. A search of the register, revealing no caveat, the property was transferred to the appellant. The aggrieved first purchaser obtained a High Court order setting aside the transfer with costs.

On appeal, it was held that the circumstances of the case placed it somewhere in between the two extremes (the traditional approach to double sales) because, even though the appellant was ignorant of the respondent's prior claim to the property at the time transfer into its name was effected, such ignorance was due solely to the oversight or incompetence of a public official. It would not be fair and just to rule that the failure by the Deeds Office to register the caveat had the effect of nullifying the respondent's prior claim to the property.

The same can be said in the present matter.

This is an application for an interdict to stop the first respondent from selling and transferring Stand No.47 Addington Lane, Ballantyne Park, Harare.

The background facts to this matter are common cause.

The applicant entered into a lease agreement with Brian Stevenson, the first respondent's husband from 1 April 2005 to 31 October 2006 and the lease was renewable on the same terms. The applicant claims that he made certain repairs and improvements to the property for which he is entitled to be reimbursed. The applicant seeks to interdict the respondent from selling and transferring the house pending the determination of the claim for improvements. The applicant claims that if the first respondent, who resides in Jamaica, sells the property and takes the funds out of the jurisdiction of the court, it will be difficult for him to recover the money he expended in effecting the improvements. The applicant has instituted an application under HC10286/12 for unjust enrichment where he is claiming damages for improvements he made to the property.

The first respondent is opposed to the application and submitted that she cancelled the Agreement of Sale for non-payment of rentals and the applicant had previously purported to pay the purchase price in a manner that was legally unacceptable. The respondent contends that the applicant is unlikely to be successful in the claim for improvements. The first respondent denies that the applicant performed any repair or replacement work other than that which he was obliged to perform free of charge in return for being granted each lease, with the rentals pitched lower than would have been the case. The respondent denies that the applicant performed any work on the property after the cancellation of the lease; that the applicant lost his right to transfer of the property into his name; is a mala fide possessor and has not set out a basis for a claim for improvements.

The following are the requirements for a temporary interdict and were laid out in Neptune (Pvt) Ltd v Neptune Enterprises HH127-88 as follows;

(a) The applicant must show a prima facie right though open to some doubt.

(b) That he has suffered actual injury or has a reasonable apprehension of injury.

(c) That there is no other ordinary remedy by which he can be protected in the same way as an interdict.

(d) The injury must be irreparable.

(e) The balance of convenience must favour the applicant.

The last issue that falls for determination is whether or the principle of res litigiosa applies in the present case.

In Waikiki Shipping Company Limited v Thomas Barlaw and Sons (Natal) Ltd and Anor 1978 (1) SA 671…, the court defined “res litigiosa” as objects that are the subject matter of litigation. In Zimbabwe Banking Corporation Ltd & Anor v Shiku Distributors (Pvt) Ltd and Ors 2000 (2) ZLR 11 (H)…, the court held that:

“…, a res litigiosa may not be sold after institution of action as there is no-one who can be enriched by the right as everyone has an equal right to prosecute it.”

It is trite that all personal actions have the effect of rendering their subject matter res litigiosa at the stage of litis contestatio. The relevant stage is not the time of commencement of action but the time of litis contestatio. In the case of Opera House (Grand Parade) Restaurant (Pvt) Ltd v Cape Town City Council 1986 (2) SA 656 (C), it was held that in a real action (action in rem) the land becomes res litigiosa on the service of summons while in a personal action, that status was achieved at the closure of pleadings.

I am in agreement with the findings of the trial Judge that in the present matter, it was unnecessary to determine whether the rights in issue were real or personal rights as at the time of the alienation - summons had been served and pleadings closed. It is common cause that the contested rights were res litigiosa.

It is now settled in our law that where an object is res litigiosa this does not preclude or prevent it from being alienated or similarly dealt with - as long as the rights of the non-alienating litigant in the res are protected. See…, Supa Plant Investments (Pvt) Ltd v Edgar Chidavaenzi HH92-09…,..

l conclude that the sale of the rights in the property after the closure of pleadings, without protecting the first respondent's rights, rendered the sale a nullity. The court a quo's findings in this regard cannot be faulted.

Accordingly, and for these reasons, it is ordered as follows:

In a concerted effort to fortify itself against illicit transfer of the disputed property, the first respondent followed up by placing Caveat No. 263/12 on the property on 20 June 2012.

Notwithstanding the existence of a valid court order and a caveat barring transfer of the disputed property to any third party, the appellant, in apparent connivance with Mathonsi Family Enterprises (Pvt) Ltd, somehow deviously managed to beat both judicial and administrative safeguards and obtained transfer of the property under Deed of Transfer 2541/14.

The facts show that the appellant, far from being an innocent purchaser, was complicit in the irregular purchase and transfer of the property to himself under Deed of Transfer 2541/14. It is common cause that the appellant's then legal practitioner, Mr Tavenhave, was apprised by Mr Tsivama, counsel for the first respondent, of the existence of both the court order and caveat barring transfer of the disputed property.  The appellant was equally aware of the existence of the court order, as amply articulated by the learned judge in the court a quo at page 3 of her cyclostyled judgment where she says:

“Furthermore, the facts of this matter, which have not been disputed, point to the fact that the first respondent was aware of the order in HC218/12 when he took transfer. On 23 May 2014, Mr Tavenhave, for the first respondent, telephoned Mr Tsivama, for the applicant, seeking confirmation regarding the existence of the order. Mr Tsivama confirmed the existence of the order. Mr Tavenhave then informed Mr Tsivama that he had been approached by the 1^st respondent who produced the order and was in a state of panic since he had purchased the same property from the second respondent. He went on to advise Mr Tsivama that he had reassured his client not to panic as he had already obtained transfer some time back. He had retorted that it was a clear case of double sale and enquired as to the applicant's position.

On 26 May, Mr Tsivama conducted a Deeds search which confirmed that the property was still registered in the second respondent's name and there was caveat 263/12 in place.”

From the above summation of the undisputed facts, it is plain that both the appellant and its legal practitioner, Mr Tavenhave, were patently aware of the existence of both the court order and caveat barring transfer of the property in question. Despite such knowledge they connived and deviously obtained transfer of the disputed property.

Procuring transfer under such circumstances can only amount to acquiring defective title which, at law, is a nullity and an exercise in futility.

At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective, invalid, title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity. For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary, was reprehensible.

On the basis of such finding the appeal can only fail….,.

In a judgment handed down on 18 November 2015, the High Court of Zimbabwe ordered the appellant, and four other defendants, to pay to the respondent, jointly and severally, the one paying the others to be absolved, the sum of $427,829=39, together with interest thereon and costs of suit. 

This appeal is against that judgment.

FACTUAL BACKGROUND

The appellant was, prior to 4 August 2007, the Bishop of the Harare Diocese of the respondent. He was the Head of the Board of Trustees, constituted in terms of the Constitution of the respondent. The Board was charged with the responsibility, inter alia, of managing the assets of the respondent.

A dispute arose within the Church over the issue of homosexuality.

The dispute became so heated that the appellant and other trustees (“the trustees”) purported to withdraw the Harare Diocese from the respondent. They then formed their own Church, called the Anglican Church of the Province of Zimbabwe - but continued to exercise control over the assets of the Harare Diocese.

The respondent immediately instituted proceedings against the trustees, seeking an order for their removal as trustees of the church and recovery of the Church assets. The matter was heard by the High Court which ruled in favour of the trustees. Consequent thereto, they remained as trustees of the Church and continued to exercise control over the assets of the church. The respondent appealed but, for procedural reasons, the appeal was struck off the roll. It was however reinstated by order of CHIDYAUSIKU CJ on 4 August 2011.

The order, inter alia, provided that the appeal would not have the effect of suspending the operation of the order granted by the High Court in favour of the appellant and the other trustees.

In August 2011, the appellant and the other trustees liquidated a number of Share Certificates belonging to the respondent. The value, at the time of disposal, was $427,892=39. The trustees sold them for $270,000= and used the proceeds to fund the activities of their new church.

The long running dispute was eventually resolved in November 2012 by this court in the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC48-12.  In that judgment, this Court made a number of factual and legal findings. In summary, this Court found that, upon the appellant and other trustees constituting their new church in January 2008, their continued possession and use of the assets of the respondent was illegal.

Consequent upon the above determination made by this Court, the respondent, as plaintiff, instituted an action against the trustees for the recovery of the sum of $591,818=95 representing the value of the shares. The appellant, and the other trustees, denied dealing in shares belonging to the respondent and prayed for the dismissal of the claim. However, on 9 November 2015, the parties' legal practitioners filed what they termed a joint Stated Case. The case stated is as follows:

“1. Prior to the 4^th of August 2007, the Bishop of Harare Diocese was the Right Reverend Dr Norbert Kunonga. He headed the Board of nine trustees, known as the Diocese Trustees of the Diocese of Harare. The Trustees had the responsibility of managing, administering, possessing and using the assets of the Diocese of Harare. The defendants are some of the Trustees who were duly appointed.

2. A dispute arose between members of the Anglican Church in respect of the issue of homosexuality which culminated in Bishop Kunonga and the other trustees withdrawing the Diocese of Harare from the Church of the Province of Central Africa. There was a schism in the church arising out of that issue and subsequent withdrawal. One group was led by the first defendant and the other by Bishop Bakare and subsequently by Bishop Gandiya.

3. The property of the Diocese of Harare remained under the control, possession, administration and use of the defendants.

4. On or around the 31^st of August 2011, the defendants obtained from Imara Asset Management various share certificates of shares which were owned by Plaintiff. They sold the shares reflected in paragraph 5 of Plaintiff's declaration.

5. The defendants sold these shares so that they could run the business of their faction of the church which fell under their leadership.

6. Meanwhile, the Church of the Province of Central Africa instituted proceedings against defendants in HC6544/07 and the defendants also instituted proceedings against the Church of the Province of Central Africa under HC4327/08. The learned Judge, HLATSHWAYO J (as he then was) heard both matters and dismissed the claim of the church and granted that of the defendants. This was on the 24^th of July 2009. The High Court held that 1^st Defendant was the rightful leader of the Anglican Church. An appeal was noted against that judgment but was struck off the roll. On the 4^th of August 2011, the Chief Justice reinstated the appeal but in doing so held that the noting of the appeal would not have the effect of suspending the judgment of HLATSHWAYO J (as he then was).

7. In December 2012, the Supreme Court resolved the 'Anglican Saga'. It found that the defendants had seceded from the Church of the Province of Central Africa and were not entitled to the assets and were thus obliged to return the assets to the Church of the Province of Central Africa. The secession was held to have been with effect from the year 2007.

8. As a consequence of the Supreme Court ruling, the defendants returned the Church of the Province of Central Africa's assets - including the remainder of the shares in their possession. Apparently, certain shares belonging to the Church of the Province of Central Africa had been sold as indicated above.  Plaintiff values the shares sold:

(i) As at 31^st August 2011 at USD427,892=39.

(ii) The current market value at USD453,709=10.

(iii) The defendant sold the shares for USD270,000=.

9. Defendants now fellowship under a Christian organisation known as the Anglican Church of Zimbabwe.  In the Supreme Court matter that resolved the Anglican saga, this position was adopted by them.

ISSUES FOR DETERMINATION

10. Whether the defendants can be held liable for disposing the shares in question.

11. If they are liable, what the quantum of such liability is.”

PROCEEDINGS IN THE COURT A QUO

At the hearing of the matter before the High Court, the second, third, fourth and fifth defendants, who were the appellant's co-trustees, did not appear. However, the notice of set down had been served on Venturas and Samkange, the law firm that had been representing all the trustees. Thereafter, Messrs Venturas and Samkange renounced agency on behalf of the four trustees, and, at the commencement of the hearing before the court a quo, stated that the appellant had always been the person in charge and that the trial could proceed in the absence of the other trustees.

In its judgment, the High Court found that from the time that the appellant and “his followers” resolved to secede from the respondent church and formed a new Ministry called the Church of the Province of Harare, they ceased to have any right over the property of the respondent which they had previously controlled or held in trust. The court found, further, that although the High Court had granted an order declaring the appellant and his co-trustees as the rightful Diocesan Trustees of the Diocese of Harare and allowing them to continue to exercise control over the respondent assets, and although the Supreme Court had further ordered that the appeal noted by the respondent would not have the effect of suspending the order appealed against, the orders did not allow the appellant and his colleagues to dissipate the property for the benefit of their new church. 

The two judgments granted in favour of the appellant were, at all times, interim since the order of the High Court was immediately taken on appeal.

On the question of the quantum, the court reached the conclusion that, in general, delictual damages should be measured as at the date of the delict, because that is when the owner's patrimony is reduced, unlike in a vindicatory action where the value is determined as at the date of judgment.

The court then made the order, the subject of this appeal.

GROUNDS OF APPEAL

The appellant has filed a total of sixteen grounds of appeal. I quote these verbatim.

“1. The learned judge erred in dismissing the Appellant's version in its totality.

2. The Appellant, together with the other trustees, purchased the shares and later invested them. The Appellant never lost control of the shares and other assets, both movable and immovable.

3. The court erred in failing to appreciate that the issue which was determined by the Supreme Court was between the Diocesan Trustees for the Diocese of Harare against The Church of the Province of Central Africa and that it was not between the Appellant and the Church of the Province of Central Africa.

4. The court erred in stating that the Appellant had no right to use the assets. Honourable HLATSHWAYO's order specifically allowed them to use and dispose of the assets. Alienation of the assets was on the strength of a court order.

5. The court erred in failing to appreciate that whilst the judgment by Honourable Justice HLATSHWAYO was extant, the Appellant did not dispose of the property. The Appellant only disposed of the property after Chief Justice CHIDYAUSIKU's judgment which allowed them to use the assets.

6. The court a quo erred in holding that the Appellant had established and founded a church of his own.

7. The court a quo erred in interpreting that the two (2) judgments of Honourable Justice HLATSHWAYO and Honourable Justice CHIDYAUSIKU did not give the Appellant the right to use the property.

8. The court a quo also failed to appreciate that the Appellant used the same premises during the dispute and met all expenses incurred in doing so.

9. The shares were sold in order to maintain and preserve the rest of the other properties. The court erred in not appreciating that the alienation of the shares was in the interest of the Respondent at the material time.

10. The court erred in concluding that shares were sold because the Appellant must have realised that there is a likelihood of him losing the appeal and that he was trying to make “hay whilst the sun shines.”  There is no evidence to support this conclusion. It is totally unfounded and unjustified.

11. The court did not take into account the joint Stated Case to the effect that the Diocese of Harare remained in possession of the Diocese of Harare Trustees which included the Appellant as the Bishop.

12. The court failed to appreciate that the Appellant did not act in his personal capacity but as Head of the Diocesan Trustees of the Diocese of Harare. To find the Appellant liable personally is unjustified in the circumstances.

13. The court erred in failing to give any meaningful justification why it dismissed the value of shares at the time they were sold which is US$270,000=. The US$270,000= is the actual value and market value at the time of sale of the shares.

14. The Respondent was not an administrator of the shares as it was not involved in the purchase of the shares. There is absolutely no evidence that the shares could have been sold for more than US$270,000=. The Respondent did not bring any evidence to prove that the shares could have been sold for more than US$270,000=.

15. The court failed to appreciate that the shares were sold through the Stock Exchange market and were therefore sold in public. No members of the public offered to buy the shares at a higher price. The suggestion that they were sold at a giveaway price is unjustified in the circumstances.

16. The court a quo erred in concluding that there was an agreement to the market value of the shares.” (sic)

APPELLANT'S SUBMISSIONS ON APPEAL

Before this court, the appellant has made the following submissions:-

(i) That the appellant did not use the proceeds from the sale of the shares for his own personal interest, but rather to run the business of the respondent's church which fell under the control of the appellant at the time.

(ii) That the remarks by the Supreme Court, that the appellant and his co-trustees had no right to continue to use the assets once they formed their own church, are not applicable in view of the agreed position in the Stated Case that the proceeds from the shares were not applied in furtherance of the interests of the new church but had been applied for the benefit of the respondent.

(iii) That the finding by the court a quo, that the appellant had the right to use the property, fully and finally disposes of the appeal as property such as shares cannot be used without dissipating them.

(iv) That, on the issue of quantum, there was no agreed value of the shares. The court a quo was therefore wrong in taking the value ascribed to the shares by the respondent. There was no evidence before the court that the sum of $270,000=, for which the shares were sold, was not the open market value of the shares at the time they were sold.

RESPONDENT'S SUBMISSIONS ON APPEAL

In its heads of argument, the respondent church makes the following submissions:-

(i) The matter before the court was a Stated Case. In his heads of argument, appellant makes submissions which do not derive from the common cause facts and in some instances tries to put in issue the agreed position.

(ii) There are sixteen grounds of appeal attacking an eight-page judgment. Most are vague and lack meaning. Some of the heads are not even based on those grounds. Even findings made by the Supreme Court are put in issue e.g. whether the appellant founded his own church. Consequently, there is no proper appeal before this court.

(iii) The appellant seeks to appeal against the whole judgment when it is clear that the judgment was made against four other parties who were in default.

(iv) That what the appellant refers to as a faction of the church in paragraph 5 of the Stated Case was found by the Supreme Court to have been a new church, created upon the occurrence of the schism.  The court a quo was called to pronounce upon the legal implications of that outfit and was bound by that decision.

(v) That the court a quo was correct in finding that while the appellant and other trustees had the right of use of the assets in terms of the judgment of the High Court, they could not lawfully alienate the property until the dispute had been finalised on appeal.

(vi) On the question of quantum, three possible amounts were put forward for consideration by the court.  How those sums were arrived at was not in issue. The court a quo was being asked to identify the appropriate sum to be awarded in the light of our laws of delict.

ISSUES FOR DETERMINATION

It is clear from the above that a number of issues arise for determination by this court. In the order in which they stand to be determined, the issues may conveniently be stated as follows:

(a) What is a Stated Case or a Case Stated? Can a party to such Stated Case go outside the facts agreed?

(b) The grounds of appeal. Are they valid?

(c) Is the notice of appeal, which seeks to impugn the whole judgment, valid?

(d) The effect of the Supreme Court judgment on the Stated Case.

(e) Whether the appellant was entitled to dispose of the shares belonging to the respondent once he and his colleagues moved out of the church.

(f) The effect of the determination by the High Court and Supreme Court allowing the appellant, and other trustees, to remain in custody of the church assets.

I deal with each of the issues in turn….,.

THE EFFECT OF THE DECISIONS OF THE HIGH COURT AND THE SUPREME COURT

The two orders made by HLATSHWAYO J…, and CHIDYAUSIKU CJ, allowed the appellant and his co-trustees the right to retain custody of the Church assets pending determination of the dispute in this Court.

I agree that these orders were interim, in the sense that they did not permit the appellant and his co-trustees to dissipate Church property. In any event, when the Supreme Court made the findings to which reference has been made, it was aware that these two orders had been made. That notwithstanding, this Court ruled that once they moved out of the respondent Church in 2007, they should have left all the property in the custody of the respondent. At the end of the day, therefore, these two orders had no significance on the final assessment made by this Court.

WHETHER THE APPELLANT'S SUBMISSIONS ON APPEAL HAVE MERIT

The appellant, in attacking the judgment of the court a quo, has made several submissions.

(i) Firstly, the shares in question were sold in order to run the affairs of the respondent Church and therefore he cannot be held personally liable;

(ii) Secondly, the two parties to the Stated Case had agreed that the proceeds from the sale of shares had been applied to further the interests of the respondent Church;

(iii) Thirdly, the acknowledgment by the court a quo that the appellant had the right to use the property, fully and finally disposed of the appeal; and, lastly

(iv) There was no agreed value of the shares.

I deal, firstly, with the submission that the shares were sold in order to run the affairs of the respondent's Church.

Clearly, that submission has no merit. In a well-considered judgment, this court, as the final court of appeal, found that the assets had been used, not for the benefit of the respondent Church but, rather, in furtherance of the interests of the new Church that the appellant and his colleagues had formed. In the light of that clear and unambiguous finding, it is disingenuous, and even dishonest, on the part of the appellant, to make the above submission. The two parties to the Stated Case agreed that the appellant and his co-trustees had sold these shares so that “they could run the business of their faction of the Church which fell under their leadership.” Whilst there may well be a dispute on what this paragraph means, quite clearly, the parties could not, in a Stated Case, make a factual statement contradicting the finding already made by this court on the same issue. One has to interpret that paragraph in the light of the finding made by this Court that the shares were used to advance the interests of the new Church that they had formed.

It is submitted by the appellant that the court a quo acknowledged that the appellant had the right to use the property in terms of the two judgments of HLATSHWAYO J and CHIDYAUSIKU CJ and that such acknowledgment fully and finally disposes of the appeal.

I do not agree with this submission.

The Supreme Court was aware of these two orders when it made the ultimate finding that the appellant and his co-trustees had no right to continue to possess the Church assets and to dispose of them once they had moved out of the respondent Church. The submission, in my view, is intended to circumvent the decision of this Court. That is not proper and cannot be done. 

The submission must therefore fail.

On the submission that there was no agreement on the value of the shares, I hold the view that this too must fail. The Stated Case gives three valuations of the shares.  These are;

(a) Plaintiff's valuation as at the time of their disposal;

(b) Market value as at the time of the trial; and

(c) The price at which they were sold/purchased on the open market.

Given these three valuations, the court was entitled to take these as the accepted values. Why else would one put these valuations in a Stated Case unless the amounts are not in dispute? How the computations were arrived at, was not at issue. The court a quo assumed and, I agree, correctly so, that it was being asked to determine, on the basis of legal principle, which of the three valuations was applicable. The court a quo determined that, consistent with general principle in our law of delicit, it would award the value of the shares as at the time of the delict. 

I find nothing untoward about that.

THAT RESPONDENT HAD NO CAUSE OF ACTION IN DELICT

The submission was made by the appellant that the plaintiff's cause of action, based as it was on the Aquilian Action, had not been proved. In particular, it was suggested that the essential elements for delictual liability were absent from the Stated Case.

I do not agree with this submission, which clearly ignores what a Stated Case is. Whether the facts, as agreed, disclosed a cause of action was not an issue. Only two issues were referred for determination.  These were;

(i) Whether the appellant and his co-trustees were liable to pay for the shares; and, if they were,

(ii) What the quantum thereof was.

It is unfair and improper, in my view, for the appellant to complain that the cause of action was not proved, when the attention of the court a quo was not directed to the need to determine that aspect. In any event, the entirety of the facts disclose wrongful conduct on the part of the trustees, which conduct resulted in financial loss, such loss having been caused by the deliberate sale of the share certificates.

DISPOSITION

I am satisfied that no proper basis has been given to impugn the judgment of the court a quo. The appeal must therefore fail.

It is accordingly ordered as follows:-

This is an urgent chamber application wherein the applicant claims, in the interim, the following relief:

“Pending confirmation or discharge of the provisional order:-

(i) Second respondent be and is hereby interdicted from issuing first respondent the requisite consent for disposal of the assets of the Estate Late Fairchild Maplanka, DRB 334/09.

(ii) Should the second respondent have issued the consent in (i) above at the time this order is made, second respondent be and is hereby ordered to revoke it.

(iii) First respondent be and is hereby interdicted from disposing of the assets of the late Fairchild Maplanka DRB 334/09, with or without the consent of the second respondent.

(iv) The certificate of authority issued by the 2^nd respondent in the Estate Late Fairchild Maplanka, DRB 334/09, on the 16^th of October 2015, be and is hereby suspended.”

The facts are as outlined hereunder.

The applicant is one of the late Fairchild Maplanka's sons. The first respondent is the Executor of the Estate Late F. Maplanka appointed thereto by the second respondent. During his lifetime, the late Mr F. Maplanka was married to three wives. Evelyn Maplanka, the first wife, was the applicant's mother. Upon the death of Mr Maplanka, one Nomsa Hazel Ncube was appointed the Executor of the estate. The finalisation of the distribution of the estate stalled and in July 2015, the second respondent relieved Nomsa Hazel Ncube of her executorship. The first respondent was subsequently appointed as the Executor the of applicant's late father's estate. This was on the 6^th day of August 2015.

Evelyn Maplanka passed on the 21^st of August 2015.

On 1 September 2015, the applicant's legal practitioners wrote to the second respondent complaining about the first respondent's conduct. See annexure 'D'. Further, on 2 September 2015, the applicant's legal practitioners wrote a letter to the first respondent complaining that he was not a neutral executor.  See annexure E and F, the latter being the first respondent's reply. Meanwhile, on 9 September 2015, Messrs Lazarus and Sarif wrote a letter to the second respondent in which they reiterated that they intended to challenge the removal of Nomsa Ncube as the Executor. The first respondent sought from the second respondent authority, in terms of section 120 of the Administration of Estates Act [Chapter 6:01] Amendment Number 6/97, to dispose certain movable and immovable properties belonging to the estate.  While the request was made on 20 October 2015, the applicant became aware of its existence on 3 November 2015. The applicant's legal practitioners then addressed a letter to the second respondent on 4 November 2015 asking him to register the applicant's mother's estate. The estate was subsequently registered under DRB 898/15 but no Executor has been appointed.

Despite this, the first respondent insists on selling the assets of the Estate Late F. Maplanka, DRB 334/09, in clear disregard of the applicant's mother's interests.

In terms of section 219 of the Administration of Estates Act [Chapter 6:01], the applicant, as the son to his deceased mother, is entitled to secure and take custody of the assets of his mother - including assets left by his mother in his father's estate.

The applicant challenges the first respondent's “Distribution Plan” as indicated in Annexure H.

In his founding affidavit, the applicant averred that this matter is urgent in that if the second respondent issues the consent applied for, the estate of his mother will be prejudiced to an extent that such prejudice will be irreparable. On the other hand, the first respondent will not be prejudiced by the order he seeks in that;

(i) Firstly, it is an interim interdict pending the appointment of an Executor in his mother's estate; and

(ii) Secondly, the first respondent is only acting in his official capacity in that the property does not personally belong to him. 

Therefore, the balance of convenience favours the granting of the interdict so as to afford all concerned persons, including the applicant's mother's estate through its Executor, an opportunity to make representations as to how the estate of the applicant's father should be dealt with.

Further, as regards urgency, the applicant has contended that he approached this court as soon as he had knowledge of the intended disposal of his late father's assets. The applicant submitted that although he conducts his business in Victoria Falls, most of the time he will be out of reach and this is why his legal practitioner could not reach him by telephone timeously.

The application was opposed by both respondents. The first respondent's grounds for opposing the application, as contained in his opposing affidavit, are briefly that:

(i) The matter is not urgent as the estate of Evelyn Maplanka will be treated like any other beneficiary in terms of section 52 of the Administration of Estates Act.

(ii) Since the second respondent has already issued the requisite consent to sell, the order sought is incompetent. In any case, the estate of the applicant's mother cannot suffer any prejudice as it “will be awarded what is due to it in terms of the law” in due course.

(iii) In terms of section 5(1) of the Act, the estate of the applicant's mother ought to have been registered “within 14 days” of her death. She died on 21^st August 2015 and it 'boggles the mind how non-appointment of an executor 12 weeks later creates urgency.'

(iv) The applicant has no locus standi to represent his deceased mother as he was not appointed Executor of that estate.

On the merits, the first respondent argued that:

(i) There is no distribution plan but just a draft which was not signed by all the beneficiaries.

(ii) In terms of section 25(3) of the Act, the Master appoints such person or persons as to him seems fit and proper to be executor or executors of the estate…,…

(iii) There is no basis for the allegation of bias.

(iv) It is not the first respondent's fault that an Executor is yet to be appointed for the applicant's mother's estate and this omission cannot validly stop the first respondent from administering the estate under his administration.

(v) The applicant's mother's interest in the estate under the first respondent's administration is secure.

(vi) The applicant, and other beneficiaries, connived with the former Executor to sell estate property comprising cattle and immovable property illegally.

(vii) The applicant has “so many other remedies” available to him….,.

The sole issue for determination is whether or not the applicant has met the requisites for an interim interdict.

An application for an interdict can only be granted if all the requisites of a prohibitory interdict are established. The locus classicus of the cases which set out these criteria is Setlogelo v Setlogelo 1914 AD 221…,. In Tribal (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52, these criteria were stated as:

“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.”

See also PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Ltd and Anor 1993 (1) ZLR 55 (H)…,.

In Econet (Pvt) Ltd v Min of Information, Posts & Telecommunications 1997 (1) ZLR 342 (H), it was held, per ADAM J, that for the grant of a temporary or interim interdict, the requisites are that –

“(1) The right sought to be protected is clear; or

(2)(a) If it is not clear, it is prima facie established, even though open to doubt; and

(b) There is a well grounded apprehension of irreparable harm if the relief is not granted and the applicant ultimately succeeds in establishing his right;

(3) The balance of convenience favours the grant of the relief; and

(4) There be no other satisfactory remedy.”

See also Nyambi & Ors v Minister of Local Government & Anor 2012 (1) ZLR 569 (H).

C. B. PREST, The Law & Practice of Interdicts…., states;

“The court has to decide, in its discretion, whether or not to grant a temporary interdict. In the exercise of this discretion, it must be satisfied that the applicant has proved an actual or well grounded apprehension of irreparable loss if no interdict is granted and it must have regard to the balance of convenience. The balance of convenience, however, becomes relevant only when a prima facie ground for an interdict has been established.

This is the threshold that must be crossed and a failure so to do means that an applicant cannot succeed in his claim.”

Put differently, where an applicant for an interdict proves a clear right, then, he need not show that he will suffer irreparable harm if the interdict is not granted. He merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed.

Applying these principles to the case in casu, I find that the applicant has a prima facie right arising from the fact that he is Evelyn Maplanka's son and that his mother had left property in expectancy in the estate of his late father. Section 21 of the Administration of Estates Act [Chapter 6:01] requires him to take custody of assets of a deceased person in his mother's position.

As regards irreparable harm, it is common cause that the first respondent wants to sell the immovable property in order to take care of liabilities before the appointment of an Executor in Evelyn Maplanka's estate under DRB 898/15. Quite clearly, the letter dated 20 October 2015, Annexure H, violates the rights of the Estate Late Evelyn Maplanka. If this sale is permitted, the applicant will suffer financial prejudice in that in the absence of an Executor in Evelyn Maplanka's estate, there is virtually no one to represent its interests.

In my view, the balance of convenience favours the granting of the interdict in that the first respondent will lose nothing if the order is granted since he is acting in his official capacity. All that is requested of him is that he acts fairly by consulting all beneficiaries before taking decisions that have far-reaching consequences. In other words, the first respondent's discretionary powers in terms of section 68 of the Administration of Estates Act [Chapter 6:01] are not unfettered as the second respondent ultimately makes decisions.

On the other hand, if the assets are disposed without granting the estate the right to be heard, this will obviously cause prejudice to Evelyn Maplanka's estate, and, ultimately, to the applicant. The first respondent has made it abundantly clear that he intends to distribute the proceeds of the sale to “other beneficiaries” - excluding Evelyn Maplanka's children, including the applicant. 

The second respondent had also taken the same stance….,.

The applicant has no satisfactory alternative remedy other than to apply for the interdict.

It was submitted by counsel for the first respondent that the applicant has numerous other remedies in terms of section 52 of the Administration of Estates Act [Chapter 6:01] in that whoever is eventually appointed as Executor in Evelyn Maplanka's estate will have an opportunity to challenge the sale ex post facto. 

In my view, this is without merit as it amounts to closing the stable door when the horse has already bolted….,.

For these reasons, I am of the view that the respondents' opposition is without merit. The applicant has made a good case for an interdict. Accordingly, it is ordered that:

Pending confirmation or discharge of the provisional order -

(i) Second respondent be and is hereby interdicted from issuing 1^st respondent the requisite consent for disposal of the assets of the estate late Fairchild Maplanka, DRB 34/09.

(ii) Should the 2^nd respondent have issued the consent in (i) above at the time this order is made, 2^nd respondent be and is hereby ordered to revoke it.

(iii) 1^st respondent be and is hereby interdicted from disposing of the assets of the late Fairchild Maplanka DRB 334/09 with or without the consent of the 2^nd respondent.

(iv) The certificate of authority issued by the 2^nd respondent to sell, by private treaty, immovable property described in Annexure I, belonging to Estate Late Fairchild Maplanka DRB 334/09, be and is hereby suspended.

Before I consider the merits and demerits of the application, it is pertinent for me to make some comments in regard to the temporary interdict which I imposed on the respondents on 20 August 2015.

The comments run as follows:

The Registrar referred the urgent chamber application to me on Thursday, 20 August 2015. I went through the application. I observed that the auction which the applicants feared would effectively dispose of their property was scheduled to take place on Saturday, 22 August 2015. I remained alive to the fact that the application had to be served on all the parties who would appear and present, as well as argue, their respective cases before me.

The second and third respondents were many kilometres away from Harare, the seat of the Court. The second respondent's address of service was given as Number 34 Lobengula Avenue, Gweru. The third respondent's address of service was stated as Rushinga Co-operative Building, Hospital Road, Mt Darwin.

It was in view of the distances which were involved that I scheduled the hearing of the urgent chamber application to take place at 1200 hours of Thursday, 24 August 2015. My intention was that all the parties should be afforded an opportunity to be served with, and notified of the date and time of the hearing of, the application. I remained alive to the fact that the auction, which was slated for 22 August 2015, would have come and gone by the time that I hear the application. I realised that no purpose would have been served by hearing the application when the goods which were, or are, the subject of the application would have been disposed of at the auction. I was aware that, in applying as they did, the applicants were moving the court to stop the auctioning of their goods pending their appeal against the dismissal of their application for rescission of judgment.

In an effort to arrest the situation and allow the parties who were due to appear before me on Monday 24 August 2015 to ventilate their respective cases, I imposed a temporary interdict on the respondents. I restrained them from auctioning the applicants' goods pending the hearing and determination of the present application. The temporary interdict was meant to, and it did actually, serve two important purposes, namely:

(a) To allow the situation which prevailed between the parties to remain undisturbed until the parties' respective cases were properly, unhastily, and impartially argued as well as determined; and

(b) To protect the second and third respondents, who are officers of the court, from being compelled to act against the directive of the court by the first respondent which might have, out of impatience, insisted that they should proceed with execution of the writ as there was no court order which prevented them from doing so.

I have, prior to this application, come across situations where a party makes an application of the present nature, the court gives directions to the Registrar to set the matter down for hearing as well as to serve the application on all the parties whom the applicant(s) has or have cited.  An unscrupulous legal practitioner, I have noted, has acted contrary to the directions of the court and instructed the Sheriff to proceed with the execution of the writ. The legal practitioner's argument has, under the stated circumstances, been that what the court has given was a directive which was not binding on anyone, let alone his client. The Sheriff has, more often than not, been placed into a very invidious position which conflicts with the directive of the court. It was, and is, therefore, important that the Sheriff should remain protected against acting contrary to the principles which govern and guide the courts' practices and procedures by the issuance of such temporary orders as the one which was issued on 20 August 2015.

Such orders are, and should, in my view, come into existence in the interest of the parties' cause. They aim at the attainment of real and substantial justice. They restrain one party from taking an unfair advantage over the other party on the basis of some technicality which, on the face of it, is operating in its favour. The above stated matters suffice as an explanation for the temporary interdict which was issued on 20 August 2015….,.

There is no doubt that the car is the subject of a number of proceedings criminal and/or civil - before this and other courts.

Its ownership remains in the balance between Mr Shava, Mr Angel and Mr Busangabanye. Criminal proceedings have been, and will be instituted against certain individuals on charges which range from forgery right through to fraud.

The car cannot, therefore, be disposed of in any way until the dust which surrounds its ownership, possession and control has settled….,.

Phibeon Busangabanye will, however, be required to produce the car and to avail it to the court which is dealing with the matter which relates to the car as and when the State, or any litigant, calls upon him to do so….,.

(a)…,.

(b) That Mr Busangabanye be and is hereby ordered to avail the motor vehicle, a Bentley Continental G.T. registration number ACO 1759 to the Regional Court for purposes of proceedings which will commence on 17 February 2015.

(c) That Mr Busangabanye be and is hereby ordered not to dispose of the motor vehicle until all proceedings which relate to the car have been finalised.

(d) That there be no order as to costs.

The applicant has approached this court on an urgent basis seeking to save an order granted by this court in his favour in HC1409/07 from falling into disuse and being rendered a brutum fulmen.

He would like to have a caveat registered over the title deed holding Stand 23 Clovelly Township, Masvingo (the property), registered in the name of the late Campion Mapanzure, the late husband of the first respondent.

The application attests to the fact that, during his lifetime, the late Campion Mapanzure had sold the property to the applicant who paid the full purchase price but later cancelled the sale agreement in favour of a refund of the purchase price. When the deceased failed to refund, as agreed, the applicant sued him, in HC1409/07, and obtained an order directing the deceased to pay the applicant $20 billion in Zimbabwean currency.

Of course, that currency became moribund in March 2009.

The applicant says that Campion Mapanzure died before he had refunded the money and before enforcement of the court order leaving him to grapple with a claim against the estate. Such a claim has not been lodged because the estate has not been registered and the applicant has filed an application, in HC851/16, seeking an order compelling the registration of the estate to enable him to lodge a claim.

In HC1409/07, the applicant sued the deceased and one Lancelot Riyano seeking to enforce a sale agreement he had entered into with the deceased on 16 September 2003 in terms of which he had purchased the property. The deceased had later purported to sell the property to Lancelot Riyano. On 28 February 2008, this court, per NDOU J, granted an order in favour of the applicant in the following terms:

“IT IS ORDERED THAT:

An order for summary judgment under case HC1635/06 be and is hereby granted in the following terms:

1. The sale by the respondent of Stand number Lot 24 Clovelly Township, Masvingo, formerly held under Deed of Transfer 3380/87, to one Lancelot Riyano be and is hereby declared ultra vires the applicant and respondent's Deed of Sale dated 16 September 2003.

2. The respondent be and is hereby ordered to pay $20 billion as compensation to the applicant for Lot 24 Clovelly Township, Masvingo or the current market value as arrived at by the estate agents whichever is greater.

3. The respondent be and is hereby ordered to pay costs of suit in this matter and under HC1635/06 at an attorney-client scale.”

The applicant does not appear to have done anything about enforcing that judgment and does not state when the deceased died. All he says is that the property is still registered in the deceased's name at the Deeds registry and he would therefore want to lay a claim of about $46,000=, being the value of the property, against the estate.

In HC851/16, the applicant has sued the first respondent, the estate, and the Registrar of Deeds for an order for the registration of the estate and ancillary relief. No opposing papers have yet been filed in that matter and it is yet to be finalized. Pending that, the applicant seeks the following relief:

“TERMS OF FINAL ORDER SOUGHT

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

1. The 1^st respondent, her agents, nominees and appointees are interdicted from alienating or in any way disposing of Lot number 23 Clovelly Township, Masvingo of Fort Victoria Lands also known as Number 24 Corner Flower Street and Water Street, Clovelly Township until finalization of HC851/16.

2. The 1^st and 2^nd respondents shall pay costs of suit on an attorney-client scale only if they oppose the present application.

INTERIM RELIEF GRANTED

Pending the confirmation of the provisional order, the applicant be and is hereby granted the following relief:

1. The Registrar of Deeds (Harare) is ordered and directed to register a caveat over Lot number 23 Clovelly Township, Masvingo of Fort Victoria Township Lands, also known as Number 24 Corner Flower Street and Water Street, Clovelly Township immediately upon service of the provisional order on him.”

The applicant complains that according to information reaching him, the first respondent intends to have the property either transferred into the name of her son or to sell it altogether. It is for that reason that he now seeks its protection by way of a caveat….,.

Counsel for the first respondent had nothing meaningful to say on the merits.

All that the applicant seeks is to preserve the property until his application in HC851/16 has been heard. He has shown that he has a claim against the estate in whose name the property is registered and is therefore entitled to that relief.

In the result, the provisional order is hereby granted in terms of the draft order.

This is an appeal against the judgment of the High Court dismissing with costs, an application by the appellant seeking an order restraining the transfer of or in the event that the property had already been sold, an order reversing that sale and giving the appellant the right to purchase certain immovable property commonly known as No. 8 Price Road, Emerald Hill, Harare.

The facts

The facts giving rise to this appeal are largely common cause.

The appellant was employed as a senior executive by JW Jaggers Wholesalers (Private) Limited (“Jaggers Wholesalers”). In that capacity, he was allocated a residence, belonging to the employer, situate at No. 8 Price Road Emerald Hill Harare (“the property”). The terms and conditions of the allocation of the property to the appellant, if any, were specifically agreed upon, were not placed before the court a quo and are not on record.

In 2011, Jaggers Wholesalers was placed under liquidation. The first respondent was appointed liquidator.

In 2013, the property was put up for sale.

On 5 March 2013, an estate agent handling the sale of the property addressed a letter to the appellant advising him of the intended sale and offering him the property for the sum of US$140,000=. The appellant entered into some correspondence with the estate agent, and with the first respondent, regarding the intended sale. In particular, the appellant intended to negotiate a set off of the purchase price against any benefits that were due to him. Notwithstanding such engagement, the property was sold to the second respondent, who, in due course, took transfer of the property.

The appeal

The appellant approached the court a quo seeking an order in the terms set out above. He was unsuccessful. Aggrieved by the dismissal of his application, he noted an appeal to this Court, raising five grounds of appeal as follows:

“1. The court erred in holding that there was no right of first refusal in favour of appellant.

2. The court erred in creating a distinction between a right of first refusal and what it called the right of first offer.

3. The court erred in holding that presentation of an alternative competent mode of payment amounted to refusal of the offer.

4. The court erred in not giving due attention to the malpractices that went with the sale and the transfer as shown in the cases before the court.

5. The court erred in viewing reversal of the state of affairs as impossibility.”

The applicants wrote to the Registrar of Deeds complaining about the wrongful manner the Late Dzingayi Kashumba, assisted by Kantor & Immerman, had taken transfer. In that letter, Mutamangira & Associates request that an XN caveat be placed on the property.

The Registrar of Deeds obliges, but warns that this kind of caveat is only temporary. He says a court order is needed for a permanent interdict….,.

Although an XN caveat is an administrative encumbrance noted on the title of an immovable property and is therefore not a legal impediment to the registration of transfer; in practice, the Registrar of Deeds does not register transfer of a property that is encumbered with such a caveat without reference to the party at whose instance it would have been noted.

In this case, V.S. Nyangulu & Associates had requested the noting of XN caveats on both Stand 552 and 553. In registering transfer in favour of the fourth respondent in spite of those caveats, and in spite of the numerous pleadings filed with him, the Registrar of Deeds was either wilfully complicit or culpably negligent….,.

An object that is res litigiosa may not be disposed of after litis contestatio: see Ex parte Deputy Sheriff, Salisbury: In re Doyle v Salgo 1957 [3] SA 740 [SR]; Zimbabwe Banking Corporation Ltd & Anor v Shiku Distributors [Pvt] Ltd & Ors 2000 [2] ZLR 11 [H]…, and Chenga v Chikadaya & Ors SC07-13.

In the present case, the applicant sought an interdict and the placement of a caveat on property that essentially now belongs to a third party, who happens to be the second respondent.

This is an application for an interdict pendent lite.

The first respondent is the appointed liquidator of the second respondent (J W Jaggers Wholesalers (Pvt) Ltd) which was placed under liquidation by order of this court sometime in February 2011. In pursuance of his duties as liquidator, the first respondent sought to sell certain fixtures, fittings and amenities to meet its financial obligations to its creditors. The fixtures and fittings are currently at two properties that the applicant was leasing to the second respondent before it went into liquidation. There are two lease agreements between the applicant and the second respondent with respect to the properties situate in Bulawayo and Kwekwe.

A dispute has now arisen between the applicant and the first respondent over the first respondent's expressed intention to dispose, by sale, the fixtures and fittings. The applicant avers that it owns the fixtures and fittings it has named and listed, whilst the first respondent is adamant that such property is part of the second respondent's assets - and intends to sell such assets for the benefit of the creditors.

The relief sought by the applicant is couched in the following terms:

“It is ordered that:

1. The 1^st respondent be and is hereby restrained and interdicted from selling or in any way disposing of the property listed in the schedule filed as annexure A to the applicant's founding affidavit for this application, pending the final determination of the action instituted by the applicant herein for a declaratory order declaring it the owner of the property.

2. The schedule referred to in paragraph 1 above shall always be attached to, and shall form part of this order.

2. Costs follow the cause.”

Preliminary points

The first respondent has raised two points in limine, namely:-

(a) The application before the court is improperly before the court for failing to comply with the provisions of Order 32 Rule 232.

(b) The application was filed in contravention of section 213 of the Companies Act (Chapter 24:03) which provides as follows:

“In a winding up by the court:

(a) No action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.”…,.

On the merits

It is contended by the respondent that the applicant has failed to establish a clear right to warrant the granting of the order sought.

The requirements of an interdict pendente lite were clearly laid out in the case of Blimas v Dardagan 1951 (1) SA 140. The court held that to obtain an interdict the applicant must satisfy the court either:

(a) That he has a clear right and that injury has been committed or reasonably apprehended.

(b) That he has a prima facie right and that irreparable injury will be caused to him if the interdict is not granted.

In its founding affidavit, the applicant has laid bare claims of right in the fixtures and fittings. There is no documentary proof in the applicant's papers asserting a clear right. The mere production of a list of fixtures and fitting does not in any way prove any right of ownership in the property in question.

The lease agreement entered into between the applicant and the second respondent stipulates, in clause 4(iii), that the fixtures and fittings belonged to the lessee and that on termination the fixtures and fitting were to be removed. There is no ambiguity in the terms of the lease agreements as to whom the fittings and fixtures belong to. It has not escaped the court's attention that the lease agreement between the applicant and the second respondent relates to buildings erected on the industrial Stands in issue. The fittings and fixtures were not listed as annexures to the lease agreements and are not part of the lease agreements. The logical conclusion is that whatever property belonged to the second respondent was removed upon termination of the lease as contemplated by the express provisions of the lease.

The respondent is well within his rights to dispose of these fixtures and fittings in his capacity as liquidator.

The applicant is prevented by the parole evidence rule which prohibits a party to a contract that has been integrated into a single and complete document from introducing extrinsic evidence which has the effect of contradicting, adding to or modifying the written terms. See the cases of Johnson v Leal 1980 (3) SA 927 and Union Government v Vianini Ferro Concrete Pipes (Pty) Ltd 1941 AD 43.

I am not satisfied that the applicant has established a clear right. The applicant has laid a bare claim to the property not supported by its papers.

In the case of ZESA Pension Fund v Mushambadzi SC57-02 ZIYAMBI (JA) stated as follows:-

“With regard to a temporary interdict, the following must be established:-

1. A right which, though prima facie established, is open to some doubt.

2. A well grounded apprehension of irreparable injury.

3. The absence of any other remedy.

4. The balance of convenience favours the applicant.”

In my view, neither a clear right nor a prima facie right has been established by the applicant. There is no well-grounded apprehension of harm as the property that is referred to as fixtures and fittings is dealt with in accordance with the lease agreement.

The liquidator's duty is to ensure that assets belonging to the second respondent are disposed in terms of the law. The applicant had various options to protect their interests. The second respondent was placed under liquidation in February 2011. No explanation has been given why the applicant only took action in 2014. In any event, case number HC2006/14 has not been pursued or concluded. In this matter, there can be no doubt the balance of convenience weighs heavily against the granting of an interdict in that the delay in the sale of the fixtures and fittings over a frivolous claim of right by the applicant will prejudice all the creditors of the second respondent who are intended to benefit from the sale of such property.

In Eriksen Motors (Welkom) v Protea Motors and Anor 1973 (3) SA 685 the learned judge stated that an interim interdict pendete lite is an extraordinary remedy within the discretion of the court and that in exercising its discretion the court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes known as the balance of convenience.

On the basis of the foregoing, I am of the view that the applicant's application has no merit and I, accordingly, make the following order:-

1. The application be and is hereby dismissed.

2. The applicant shall bear the costs of suit.

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:

“TERMS OF INTERIM RELIEF SOUGHT

It is ordered that:

1. The sale of the property known as LOT 5 of LOT 264 Greendale Township, Harare also known as No.1 Sancha Close, Greendale, Harare be and is hereby suspended pending the final determination of this application.

2. The applicant and the first respondent be given until the 14^th October 2011 to come to an agreement on the property failing which the applicant shall institute any necessary proceedings within seven days of the 14^th October 2011. (sic)

3. In the event of the applicant instituting further proceedings that the first respondent be and is hereby interdicted from selling or in any other way disposing of the matrimonial home pending the final determination of such proceedings.

4. The first respondent pay the costs of this application.”

The terms of the final order sought are couched as follows:

“TERMS OF FINAL ORDER

1. The first respondent be and is hereby interdicted from selling or in any other way disposing of the property known as LOT 5 of LOT 264 Greendale Township, Harare, also known as No.1 Sancha Close, Greendale, Harare without the applicant's consent and before the finalization of any associated proceedings.

2. The first respondent pay costs of this application.

SERVICE OF PROVISIONAL ORDER

Service of this provisional order will be made by the applicant's legal practitioners.”…,.

The first respondent…, filed a notice of opposition and an opposing affidavit to which was attached annextures “A1” and “A2” being agreements of sale relevant to the property in issue (hereafter referred to as the matrimonial house)….,.

I now turn the facts of the case giving rise to this urgent application.

The applicant and the first respondent are wife and husband respectively. Before contracting a civil marriage, the applicant and respondent were “married” to each other under customary law since April 1998. The civil marriage was solemnised on 22 October 2005 in terms of the Marriage Act [Chapter 5:11]. Three minor children were born out of the marriage, namely, Julita, born on 14 September 1998; Kudakwashe Sean, born on 20 January 2001; and Tatenda Karen, born on 16 December 2006.

The second respondent, who is alleged to be a personal friend of the first respondent, is cited in his capacity as the person who purchased the matrimonial house from the first respondent.

As per the first respondent's opposing affidavit, the second respondent has already paid the purchase price of the matrimonial house as per the Agreement of Sale “Annexture A1”. However, transfer is still to be effected.

Let me briefly address my mind to the status of this property in issue, No.1 Sancha Close, Greendale, Harare (“the matrimonial house”).

Both parties did not attach the title deed of the matrimonial house. The applicant's position is that this property belongs to the first respondent and she does not aver that the property is registered in the joint names of the applicant and the first respondent. According to the first respondent, the applicant, first respondent and the children, who are still residing at the matrimonial house, first took occupation of the house as tenants in 2008. They commenced purchasing the property in October 2009, under a Deed of Sale, from one Peter Norman Cox. See “Annexure A2”. This Agreement of Sale was between the first respondent and Peter Norman Cox. The applicant contends that the full purchase price was paid to Peter Norman Cox in April 2011.

The first respondent is not clear as to when the full purchase price was paid - if it was paid at all. Instead, the first respondent contends that the matrimonial house is still registered in the name of Peter Norman Cox and that Peter Norman Cox, the first respondent, and the second respondent have agreed that a simultaneous transfer would be done from Peter Norman Cox to the first respondent and then to the second respondent. This would imply that the matrimonial house is still registered in the name of Peter Norman Cox although the first respondent may have paid the full purchase price and has, in turn, received the full purchase price of the same property from the second respondent. This issue however is besides point.

It is, however, apparent from the facts of the matter that the matrimonial house is not registered in the joint names of the applicant and the first respondent (even assuming the first respondent owns the matrimonial house). There is no basis to infer that there is such an intention even as and when the actual transfer from Peter Norman Cox to the first respondent is to be done. The assumption derived from the applicant's founding affidavit is that the matrimonial house in issue is registered in the first respondent's name.

I shall therefore proceed to deal with the issue at hand on that basis.

This is an urgent chamber application for an interim relief order interdicting the first respondent from transferring a certain piece of land situate in the District of Salisbury called an undivided 5% share No.19 in the Remainder of Stand 1652 Salisbury Township held under Deed of Transfer number 11009/2005 to the fifth respondent pending the hearing and determination of an application to set aside the sale of property described herein sold by public auction.

During the hearing of the matter the first respondent was not represented. The fourth and the fifth respondents' representatives who were present elected not to say anything. The second respondent filed his report couched in the following words -

“SHERIFF'S REPORT

I have gone through the applicant's founding affidavit and have been sighted as the 2^nd Respondent in my official capacity although on the applicants (sic) founding affidavit the Sheriff has been sighted as the 4^th Respondent in his official capacity.

The Sheriff will abide by the decision of this Honourable Court.

…,.(signed)…,.

M Madega

Sheriff

/rg”

Counsel for the third respondent raised a number of points in limine. The pertinent ones being -

(a) That the matter is not urgent;

(b) That the relief claimed by the applicant is for stay of execution that has already been completed;

(c) That the interim relief and final relief sought are the same; and

(d) That the urgent application was not served on us personally but on Scanlen and Holderness who were acting on behalf of us in the action proceedings, therefore, the service was defective.

After hearing submissions by parties on the points in limine, I indicated that, in my view, the matter was urgent and I was going to dismiss the points in limine. I invited the parties to address me on the merits. I indicated that my reason for dismissing the points in limine will be apparent in my judgement. These are they.

The applicant purchased the property in question from the fourth respondent by way of private treaty on the 11^th of November 2013 and paid the full purchase price. The applicant and the fourth respondent signed a Memorandum of Agreement of Sale to that effect which is attached as annexure F. The applicant took vacant possession of the said property soon after the sale and leased out the property to a tenant. The applicant then sought the transfer of the property to itself sometime in April 2014. There was a delay in processing the transfer because of the office of the Zimbabwe Revenue Authority (ZIMRA)'s queries concerning the payment of capital gains tax.

Meanwhile, and unbeknown to the applicant, the fourth respondent owed the third respondent money. The third respondent sued the fourth respondent and obtained judgment in its favour. The third respondent then obtained a writ of execution against movables and immovable property on the 10^th of July 2014. The applicant's piece of property, which was still in the names of the fourth respondent, was attached and subsequently sold to the fifth respondent at a public auction. The applicant only became aware of the proceedings involving the third and the fourth respondents by way of a written communication from the chairperson of the block of apartments that house the property in question on the morning of the 16^th January 2015.

Upon learning that the property in question had been auctioned, the applicant immediately approached its legal practitioners who then filed this urgent chamber application on the 19^th of January 2015.

Let me hasten to mention that the applicant was not cited as a party in the court processes.

Had it not been for the chairperson of the block of apartments who knew the owner of the property in question, the applicant might not have known of the sale of its property until ownership was passed on to the fifth respondent.

Counsel for the third respondent's contention was that this matter is not urgent because the relief sought by the applicant cannot be granted as the applicant has not shown that they have a clear right against the third respondent, but the fourth respondent which right can be adequately remedied by an award for damages in the matter that will have been filed against the fourth respondent. He further submitted that the urgency in this matter is self-created….,.

What this court has to decide, taking into account all the issues raised as points in limine, is whether or not this matter is urgent.

What constitutes urgency has been clearly stated by CHATIKOBO J in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, where the learned judge said -

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arrives, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay.”

In casu, the applicant became aware of the proceedings on the 16^th of January 2015. The applicant did not sit on its laurels. It quickly filed this application to protect its rights on the 19^th of January 2015. A delay of three (3) days cannot be said, by any imagination, to be inordinate. In my view, the applicant acted when the need to act arose. The need to act only arose on the 16^th of January 2015 when they became aware of the sale of their property.

It has not been shown that the urgency in this case was self-created since the applicant was not a party to the proceedings involving the third and the fourth respondents.

In any case, I do not believe that the applicant does not have real rights worthy of protecting. The applicant's rights over the property in question are enforceable against all the respondents cited in these proceedings. The rights are derived from the contract of sale that exists between the applicant and the fourth respondent. Moreover, this is an application for a temporary interdict. What the applicant needs to prove is a prima facie right, that is, a right which though prima facie established, is open to some doubt. Setlogelo v Setlogelo 1914 AD 221…,.

For the above reasons I am satisfied that this matter qualifies to be heard on an urgent basis despite the other factors raised on behalf of the third respondent. The points in limine are therefore dismissed.

I will now deal with the merits.

Counsel for the applicant outlined the requirements for an application for any interdict as stated in the case of Setlogelo v Setlogelo 1914 AD 221. The position of the law is that an applicant for a temporary interdict will succeed if he/she is able to satisfy four requirements. The requirements are -

(a) A prima facie right, though open to doubt;

(b) That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing the right;

(c) The balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.

See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,.

Counsel for the third respondent, in his argument, submitted that all the above four requirements have to be satisfied. He thus opted to dwell on the issue of irreparable harm. According to him, the applicant has a remedy in terms of the contract hence there is no irreparable harm. He relied for his arguments on clauses 9 and 10 of the contract between the applicant and the fourth respondent. The clauses in question read as follows -

“9. CANCELLATION

Notwithstanding any extension of time or other concession given by the Seller to the Purchaser, if the Purchaser fails to observe or perform any of the Purchaser's obligations under this agreement and fails to rectify any such breach within seven (7) days of dispatch of written notice by the Seller, the Seller shall be entitled, without prejudice to the Seller's rights, to:

(a) Seek specific performance; or

(b) Cancel the agreement and claim ejectment of the Purchaser from the property; and/or

(c) Claim damages.

10.1 In the event of the Seller breaching any of its obligations in terms of this contract and fails to rectify any such breach within 7 days of dispatch of a written notice by the Purchaser, the Purchaser shall be entitled to:

(a) Seek specific performance; or

(b) Cancel the contract and claim the full purchase price together with interest from the date of payment; and/or

(c) Claim damages.”

In response to counsel for the third respondent's submission, counsel for the applicant argued that the applicant cannot invoke the provisions in clause 9 and or 10 of the contract because the fourth respondent has not breached any of the provisions of the contract of sale. Besides, the fourth respondent is now bankrupt and has ceased to operate, that is the reason why the fourth respondent's property was attached. Further, he argued that there is going to be irreparable harm because the fourth respondent's other two pieces of property are now under judicial attachment. In his view, the balance of convenience favours the applicant because the applicant paid for the property in question whereas the fifth respondent has so far paid nothing.

In resolving this dispute, the court took into account the remarks of HOLMES J…, who summed up the position in relation to granting of interim interdicts in the case of Olympic Passenger Service (Pvt) Ltd v Ramlagan 1957 (2) SA 382 (D)…, as follows -

“It thus appears that where the applicant's right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict. At the other end of the scale, where his prospects of ultimate success are nil, obviously, the Court will refuse an interdict. Between those two extremes fall the intermediate cases in which, on the papers as a whole, the applicant's prospects of ultimate success may range all the way from strong to weak. The expression ' prima facie' established though open to some doubt seems to me a brilliantly apt classification of these cases. In such cases, upon proof of a well grounded apprehension of irreparable harm, and there being no adequate ordinary remedy, the Court may grant an interdict – it has a discretion, to be exercised judiciously upon a consideration of all the facts. Usually, this will resolve itself into a nice consideration of the prospects of success and the balance of convenience; the stronger the prospects of success, the less need for such balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him. I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.”

In casu, the applicant's right is clear and all the other requisites are present. The applicant purchased the property in question and paid the purchase price in full. The applicant took vacant possession of the property. What was only left was the transfer of title deeds to the applicant. The property was therefore no longer the property of the fourth respondent at the time it was attached in execution. Had the applicant known of the attachment the applicant could have issued interpleader summons or contest the sale and/or the subsequent confirmation of the sale. Had the correct status of the property been disclosed to the Sheriff of the High Court, the property could have been excluded from the property that was attached.

At the moment, the fifth respondent was confirmed the highest bidder at the public auction. The fifth respondent has not paid a cent towards the purchase price. The balance of convenience favours the applicant. The Registrar of Deeds cannot, therefore, proceed to transfer any title deeds of the property to the fifth respondent. The application for an interdict will therefore succeed….,.

In the result, the following interim relief is granted -

“INTERIM RELIEF GRANTED

Pending the outcome of the application to set aside the sale by auction, the Applicant is granted the following relief:

1. The First Respondent be and is hereby interdicted from transferring certain piece of land situate in the District of Salisbury called an undivided 5% share No.19 in the Remainder of Stand 1652 Salisbury Township held under Deed of Transfer number 11009/2005 by the Second Respondent from the Fourth Respondent to the Fifth Respondent;

2. The Second Respondent be and is hereby interdicted from signing all such documents of transfer as may be necessary to transfer certain piece of land situate in the District of Salisbury called an undivided 5% share No.19 in the Remainder of Stand 1652 Salisbury Township held under Deed of Transfer number 11009/2005 by the Second Respondent to any other party in pursuance to the writ of execution issued in favour of the Third Respondent under case number HC10443/13.

SERVICE OF THE PROVISIONAL ORDER

That the Applicant's legal practitioners are hereby given leave to serve the Provisional Order on the Respondents.”

There has been ferocious litigation in a space of four months pitting several protagonists. The dispute was convoluted and the issues multi-faceted. At the centre was a company called Hwange Coal Gasification Company (Private) Limited. For ease of reference I shall refer to this company as the Coal Gasification Company. The one protagonist was a Chinese company by the name of Taiyuan Company Limited. The variants to that name, vehemently disputed by the other protagonists, were Taiyuan Sanxing Company Limited and Taiyuan Sanxing Economic and Trade Company Limited….,.Hereafter I shall refer to it as “Taiyuan”.

The other protagonists were two Chinese nationals and businessmen called Guo Feng (“Feng”) and Su Longmin (“Longmin”).

In the hearing before me, and for convenience, the two were referred to as the “Samukange faction”.The reason shall soon become apparent.

The next lot of protagonists were Zimbabwean nationals and businessmen Cephas Msipa (“Msipa”) and Gilbert Chahwanda or Chawanda (“Chawanda”). In the hearings they were referred to as the “Dzvetero faction”.

The next lot was Hwange Colliery Company Limited (“Hwange Colliery”). Three commercial Banks, Stanbic Bank Zimbabwe (“Stanbic”), Kingdom Bank Zimbabwe (“Kingdom”), and Allied Bank Zimbabwe (“Allied Bank”) were cited in some of the cases.

The last protagonist was one Tendai Savanhu (“Savanhu”).

Apart from the urgent chamber applications listed as cases 1 to 6 above there had been two others before them. They had pitted essentially the same parties. At the time of the hearing three other proceedings, in the form of a court application and two actions, were still pending.

The litigation related to the protagonists' investment in, and control of the two companies Taiyuan and the Coal Gasification Company.

The brief background is that in October 2006 some Chinese nationals, including Feng and Longmin, got associated in a joint venture with some Zimbabwean nationals that included Msipa, Chawanda and one Leo Mugabe (“Mugabe”). The object of the joint venture was to invest in various ventures. For that purpose, the Chinese nationals used Taiyuana as the special purpose vehicle. Both Feng and Longmin were directors. The special purpose vehicle used by the Zimbabwean nationals was a company called Stoat Mining (Private) Limited (“Stoat”) in which Mugabe, Msipa and Chawanda were directors.

In 2007, Taiyuan, now comprising both the Chinese and the Zimbabwean nationals, on the one part, and Hwange Colliery on the other, entered into a written agreement for the construction of a coke oven and a battery at Hwange Colliery on the basis of build, operate, own, and transfer (“the BOOT agreement”). In June 2011 the parties obtained an investment licence from the Zimbabwe Investment Authority (“the ZIA licence”). The ZIA licence stipulated a shareholding configuration of 75% for Taiyuan and 25% for Hwange Colliery.

The Coal Gasification Company was the special purpose vehicle formed by both Taiyuan and Hwange Colliery. The shares were held 75% by Taiyuan and 25% by Hwange Colliery.

The principal object of the Coal Gasification Company was the processing and carbonization of coal from resources within Zimbabwe. In terms of the BOOT agreement, the configuration of the Board of Directors for the Coal Gasification Company would be five (5) from Taiyuan and two (2) from Hwange Colliery. The chairman of the Board would be a Taiyuan appointee. Taiyuan's representatives on the first Board comprised Feng and Longmin as executive directors; Msipa and Chawanda as non-executive. Another Chinese national by the name of Zhang Jin Yuan (“JinYuan”) was the chairman. From Hwange Colliery came Savanhu and one Fred Moyo (“Fred Moyo”) then chairman and managing director respectively.

Taiyuan and Hwange Colliery soon clashed.

One of the points of contention by Hwange Colliery was that the Coal Gasification Company had breached the BOOT agreement. Hwange Colliery moved to cancel that agreement and to seek damages. Under HC537/13 it sued both Taiyuan and the Coal Gasification Company for damages amounting to $21 million. The matter was still pending at the time of the urgent chamber applications.

The other bone of contention by Hwange Colliery was that it had been induced to enter into an agreement with a non-existent company. This allegation stemmed from the confusion surrounding the identity of Taiyuan. The BOOT agreement and the ZIA licence identified Taiyuan as Taiyuan Sanxing Company Limited. However, Hwange Colliery alleged that such a company did not exist and that only after the BOOT agreement had been executed was a company called Taiyuan Sanxing Economic and Trade Company Limited formed in China.

Hwange's further bone of contention was that its BOOT partner, Taiyuan, was in turmoil. Its shareholders were at each other's throat. This allegation stemmed from the fact that the Chinese and the Zimbabwean nationals were bringing a series of applications against each other in the name of the Coal Gasification Company with both factions claiming to be the legitimate and authorised representatives of that company. Hwange Colliery was apprehensive that its investment in the Coal Gasification Company would be dissipated.

Hwange Colliery further claimed that Taiyuan had reneged on its pledge to bring into the country an amount of US$40 million as part of its injection into the joint venture. Therefore, Hwange Colliery was seeking cancellation of the BOOT agreement.

Within the Coal Gasification Company itself matters soon came to a head.

In March 2013 JinYuan, as chairman, called for the holding of an Annual General Meeting. It was scheduled for 24 April 2013. Feng and Longmin were vehemently opposed to that meeting. They moved to block it. On 19 April 2013 they filed an urgent chamber application under case no HC3003/13 in the name of Taiyuan Sanxing Economic and Trade Company Limited. Messrs G N Mlotshwa & Co represented the applicant. Hwange Colliery was cited as the substantive respondent. One Ananias Banda, the Company Secretary, and the Registrar of Deeds, were cited as nominal respondents.

The matter came before MAWADZE J.

A point in limine was taken that the Taiyuan as cited was not the Taiyuan as was recorded on the ZIA licence and with which Hwange Colliery had entered into an agreement. Mr Mlotshwa conceded. The application was dismissed with costs on the point in limine.

The Annual General Meeting (AGM) went ahead as scheduled. Among other resolutions, Feng and Longmin would be suspended from the Coal Gasification Company.

A day after the Annual General Meeting (AGM), i.e. on 25 April 2013, Feng and Longmin, in the name of Taiyuan Sanxing Economic and Trade Company Limited, filed an ordinary court application under HC3160/13 for an order nullifying the AGM and all the resolutions taken thereat. At the time of the hearings that application was still pending.

In May 2013 Feng and Longmin were formally suspended and called to a disciplinary hearing to answer various charges including one of fraud. The suspension letters were signed by Msipa as director. Feng and Longmin were eventually dismissed as executive directors in default of appearance at the disciplinary committee.

The Coal Gasification Company reconstituted its Board of Directors. The new Board wrote to the Banks, Stanbic, Kingdom and Allied Bank to “freeze” the company's accounts.

On 5 June 2013 Feng and Longmin, together with three other Chinese nationals, were barred access to some Harare premises rented by the Coal Gasification Company from Hwange Colliery. The one letter was signed by Chawanda. The other, in long hand, was signed by one Chininga who was said to be from Hwange Colliery. But this was disputed.

Feng and Longmin went on the attack.

They threatened the Banks and warned them not to take instructions from persons that were not signatories to the accounts. Feng reminded them that he was the signatory and that the signing instructions had been given by him. On 6 June 2013, before BERE J, Feng and Longmin obtained a spoliation order in the name of the Coal Gasification Company against Mugabe and Hwange Colliery. They were granted unhindered possession and control of the aforesaid premises. Mugabe and all those claiming rights through him were ordered to maintain peace and to allow undisturbed access to the applicant and to return any company documents and office keys. However, in subsequent proceedings, Hwange Colliery claimed that Feng and Longmin had been mala fide in that they had obtained the spoliation order not with any genuine intention to re-occupy the premises but merely to gain access in order to pilfer company assets such as office furniture and to cart them away to unknown destinations.

On 20 June 2013 Feng and Longmin filed two further urgent chamber applications (“the twin applications”). They were almost identical. They were both in the name of the Coal Gasification Company as the applicant. The applicant, in reality Feng and Longmin, was now represented by Venturas and Samukange. The one application was under HC4861/13. It is case no. 4 above. In that application it was sought to “unfreeze” the account at Kingdom Bank. The respondents were Kingdom, Chawanda and Msipa. Antonio & Dzvetero represented Chawanda and Msipa. Hwange Colliery was not cited. Kingdom remained neutral and sought to abide by the court order.

The other application was filed under HC4895/13. It is case no. 5 above. In that application the first respondent was Stanbic. That Bank also remained neutral and agreed to abide by the order of the court. Again, Hwange Colliery was not cited. HC4895/13 came before DUBE J. She heard it on 24 June 2013. The matter was settled by consent. The parties agreed to an interim order. The freeze on the Stanbic account would be uplifted. The authorised signatories would be Fred Moyo, one Tafara Gadzirai (“Gadzirai”) and Feng. These would have unconditional access to the account. Gadzirai would countersign for all withdrawals. The actual wording of the material portion of the order was as follows:

“That pending the final determination of this matter, Applicant is granted the following relief:

1. The 1^st Respondent be and is hereby ordered immediately and forthwith upon service of this order to unfreeze the Applicant's account being 0240057759001 held by the 1^st Respondent.

2. Applicant's authorised signatories named Fred Moyo, Tafara Gadzirai and Feng Guo shall have unconditional access to the account for the purposes of transacting on behalf of applicant provided that Tafara Gadzirai shall counter-sign for all payments.”

HC4861/13 came before MATHONSI J. He heard it on 26 June 2013. The parties also agreed to an interim order. It was almost identical to the one by DUBE J. However, before MATHONSI J could consider the application and the draft order by consent, Hwange Colliery applied to be joined to the proceedings. This was granted. The matter was postponed to the following week. As the Samukange faction filed the twin applications aforesaid the Dzvetero faction also filed its own. This was done on 21 June 2013, i.e. a day after the twin applications.

The Dzvetero application was filed under HC4897/13. It is case no.6 above. It was also in the name of the Coal Gasification Company as the applicant. The respondents were Feng, Longmin, Hwange Colliery, Allied Bank, Stanbic, Kingdom and a firm of chartered accountants called Welsa International Chartered Accountants. The Dzvetero application came before me. The basic relief sought was also to unfreeze the Bank accounts but to appoint the accountants as the sole administrators of those accounts pending the determination of the court application by the Samukange faction under HC3160/13. That was the application in which the validity of the Annual General Meeting (AGM) and the resolutions made thereat were being challenged.

It was upon perusal of the Dzvetero application that I became aware of the one Samukange application under HC4895/13 which had been placed before DUBE J. At that stage, I was neither aware of the other Samukange application under HC4891/13 that had been placed before MATHONSI J nor of the rest of the other proceedings referred to above. I did not immediately set down the Dzvetero application.

I had queries.

One of the averments in that application was that an Extraordinary General Meeting to resolve the entire shareholder issues in the Coal Gasification Company had been scheduled for 24 June 2013. Excluding the intervening weekend, the 24^th of June 2013 was the next business day. So, in my view, there could have been no reasonable apprehension of an irreparable harm ensuing in that short space of time. Furthermore, it was common cause that it was the Dzvetero faction that had ordered the freeze on the Bank accounts. Therefore, I wondered why the intervention of the courts was being sought when the issue was now properly set for resolution in the boardroom by the “corporate parliament” of the company.

The supreme rule-making authority of a company rests with a general meeting of the members; see GOWER's Principles of Modern Company Law, 4^th ed…,.

At that stage, I was unaware that one of the issues that had triggered the twin Samukange applications was that the Banks had taken the position that given the apparent turmoil in the Coal Gasification Company, and that given the conflicting instructions and threats that they were receiving in respect of those accounts, the Banks would not unfreeze the accounts in the absence of a court order.

I called for the record of the one Samukange application under HC4895/13. But, by that time, the aforesaid order by consent by DUBE J had already been granted. However, I then became aware of the other Samukange application under HC4861/13 which had been placed before MATHONSI J and of the rest of the other applications referred to above. I then called for all the records.

Only thereafter did I get to appreciate the multifaceted disputes.

I set down the Dzvetero application for hearing on 27 June 2013. Mr T Mawere represented Hwange Colliery. Mr T Dzvetero represented the Dzvetero faction and the Coal Gasification Company. Mr J Samukange represented the Samukange faction and also the Coal Gasification Company.

At the hearing, Mr Mawere expressed concern that Hwange Colliery had not been cited in the twin Samukange applications and that the consent order by DUBE J had far reaching consequences that were prejudicial to Hwange Colliery in that, among other things, Fred Moyo, whom the two warring factions had selected as a co-signatory to the Bank accounts, was no longer employed by Hwange Colliery and that therefore he could not possibly represent it. It was further pointed out by Mr Mawere that the resolutions that the Samukange faction had used as authority to bring their twin applications in the name of the Coal Gasification Company had been signed by Savanhu - yet Savanhu had since been dismissed from the Board of Hwange Colliery.

In the premises, Mr Mawere gave notice that Hwange Colliery had filed, or would be filing, three urgent chamber applications;

(1) For an order that Hwange Colliery be joined to HC4895/13 and to vary the consent order by DUBE J so that Fred Moyo would be removed from the list of signatories and replaced by someone else properly appointed by Hwange Colliery;

(2) For an anti-dissipation interdict to prohibit the disposal of any of the assets of the Coal Gasification Company, especially the coal stocks, coking oven, and battery, by anyone purporting to act on behalf of that company until Hwange Colliery's claim for the cancellation of the contract and for damages under HC537/13 was determined; and

(3) For an interdict against Savanhu to stop him from masquerading as a director, representative, and appointee of Hwange Colliery on the Board of the Coal Gasification Company because he had been dismissed.

Mr Samukange vehemently opposed the intended applications....,.

The anti-dissipation order would be opposed on the basis that its effect would virtually paralyse and collapse the Coal Gasification Company the business of which was essentially the processing and disposal of coal....,.

Hwange Colliery's three applications were subsequently filed under HC5171/13, being case no.1 above; HC5105/13, being case no.2 above and HC5331/13, being case no.3 above....,.

The crisp issues were;

(1)...,.;

(2)...,.;

(3) Whether Hwange Colliery was entitled to the anti-dissipation interdict against the property of the Coal Gasification Company pending the resolution of its action for the cancellation of the contract and for damages in HC537/13;...,. 

(3) WHETHER HWANGE COLLIERY WAS ENTITLED TO THE ANTI-DISSIPATION INTERDICT AGAINST THE PROPERTY OF THE COAL GASIFICATION COMPANY PENDING THE RESOLUTION OF ITS ACTION FOR THE CANCELLATION OF THE CONTRACT AND FOR DAMAGES IN HC537/13

In a nutshell, the argument by Hwange Colliery on this point was said to be the need to preserve the assets of the Coal Gasification Company until the disputes, particularly its action for damages, were resolved. It was argued that Hwange Colliery had a serious apprehension of harm that given the upheaval in its BOOT partner, Taiyuan, and the free for all situation obtaining in that company, it was reasonable to interdict anyone associated with that company, as an interim measure, from taking any action that would dissipate its assets before the conclusion of the matters.

The draft order sought by Hwange Colliery was couched as follows:

“IT IS ORDERED THAT:

Pending the finalisation of litigation under case number HC537/13;

1. The 1^st (the Coal Gasification Company), 2^nd (Taiyuan), 3^rd (Msipa), 4^th (Feng), 5^th (Longmin) and 6^th (Chawanda) Counter Respondents acting together, or any one of them or any number of them in combination be and are hereby interdicted from selling, transferring or in any other way encumbering 1^st Counter Applicant's (sic) movable and immovable property, specially the coal stocks and coking oven battery currently situated at the 1^st Respondent's (sic) yard at Hwange without the prior written approval of the Counter Applicant through its nominated representatives.

2. In the event that the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Counter Respondents acting together, or any one of them or any number of them in combination sells the property aforementioned pending the final determination of the matter under case number HC537/13, they be and are hereby interdicted from using, moving and/or disposing of the proceeds of such sale without the prior written consent of the 1^st Respondent [sic], which proceeds shall be deposited into any of the accounts of the 1^st Counter Respondent held with 7^th (Kingdom), 8^th (Stanbic) or 9^th (Allied Bank) Respondents.

3. That 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Counter Respondents acting together, or any one of them or any number of them in combination be and are hereby interdicted from opening any other Bank account with any other institution, or otherwise circumventing the three specific accounts held with 7^th, 8^th and 9^th Counter Applicants (sic).

4. That any Counter Respondent who opposes the Counter Application shall pay Counter Applicant's costs of suit on the higher scale of legal practitioner and client.”

During the hearing, it was clarified that the anti-dissipation interdict was not meant to affect funds held at the Banks.

I am satisfied that given that the Coal Gasification Company was a going concern with substantial financial commitments on a day to day basis such an order would cripple the company and eventually collapse it.

Whilst I found Hwange Colliery's fears to be reasonable under the circumstances, nonetheless, I have considered that; firstly, the signing arrangement..., is a good measure of protection for everyone, and, secondly, that since the interdict related mainly to the coke oven and battery there was minimal danger of its dissipation.

That was a structure that was fixed to the ground. It was in the nature of an immovable property. It could only be removed by stripping off its components. It was built on the premises of Hwange Colliery itself, therefore, Hwange Colliery could easily monitor the structure and take remedial action if anyone tried to tamper with it. The coal stokes are the raw materials for the production of the coke. Such an order, as Mr Samukange pointed out, would virtually close down the company. That would be unfortunate. Such a consequence is certainly not what was intended. 

It is for these reasons that Hwange Colliery's application under HC5171/13 is hereby rejected....,.

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5. The application by Hwange Colliery Company Limited for an interim anti-dissipation interdict against the property of Hwange Coal Gasification Company (Private) Limited be and is hereby dismissed.