Urgent Chamber Application
MAWADZE J:
Applicant
seeks a provisional order in the following terms:-
“Terms
of the provisional order granted
1. Respondents
be and are hereby ordered to forthwith hand over a property listed in
Annexture 'B' to the founding affidavit to the applicant upon
service of this order.
1(a) In the event of the respondents refusing or forbidding to comply
with the terms of para 1 above, the Deputy Sheriff be and is hereby
authorized to retrieve the said property from the respondents'
property and deliver it to the applicant.
2. Respondents
are required to account for one applicant's property sold prior to
14 of July 2010 and to handover all proceeds of such sales to the
applicant within 48 hours of service of this order.
3. Leave is
given to the applicant's attorney to serve a copy of this order”.
The terms of the final order sought are constructed as follows:-
“Terms
of the final order sought
1. It is
hereby declared that the property listed in annexture 'B'
attached to the founding affidavit is the exclusive property of the
applicant.
2. Respondents
be and are hereby ordered to pay costs of suit on legal practitioner
client scale.”
The brief facts of the matter can be briefly stated as follows:-
The applicant conducts the business of interior and exterior
decorations and sells diversified specifically designed household
goods and effects. On or about October 2009 the applicant entered
into negotiations with the first respondent who was allegedly
representing herself and the second respondent. It was agreed that
that the first respondent through the second respondent would act as
an agent of the applicant. The nature of the agency relationship was
that the applicant would supply the respondents with goods for sale
which would be sold on applicant's behalf by the respondents who
would in turn receive 20% commission on any goods sold.
On 14 July 2010 the applicant wrote to the respondents cancelling the
agency agreement alleging improper conduct and breach of the material
term of the agreement between the parties by the respondents.
The second respondent by way of letter on 15 July 2010 confirmed the
cancellation of the agency agreement but sought to remain in
possession of the property listed in Annexture 'B' until a
certain date and that the respondents be paid certain amounts due
arising from the applicant's cancellation of the agreement.
Applicant persisted in demanding to be handed over the property in
Annexture 'B' valued at US$116,627.50 but the respondents refused
indicating that certain conditions should be met. When the applicant
visited the respondent's shop on 13 August ostensibly for a stock
take the applicant was denied access into the shop. Applicant alleges
that some of the property had been removed from the shop and property
valued at about US$100,000-00 was no longer in the shop. Applicant's
fear was that the respondents were disposing of the applicant's
property hence causing possible irreparable loss to the applicant.
Applicant then approached this court, on a certificate of urgency,
praying for the interim relief already alluded to.
This application is opposed.
Mr Nhemwa,
for the respondents raised three points in
limine two
of which he argued are capable of resolving the matter without even
going into the merits of the application. The points in
limine are;
(i) firstly
that the certificate of urgency is defective;
(ii) secondly
that the first respondent is improperly cited; and
(iii) thirdly
that the matter is not urgent.
I propose to
deal with the points in
limine first.
That first respondent is improperly cited
Mr Nhemwa
in argument stated that it was improper to cite Maria Katsande as the
first respondent in these proceedings in her personal capacity as the
agency agreement was between the applicant and the second respondent.
He argued that the first respondent despite being both a shareholder
and director of the second respondent should not be party to these
proceedings in her personal capacity.
Mr Nhemwa
submitted that the second respondent is a duly registered company in
terms of the Companies Act [Cap
24:03]
and has a separate legal persona distinct from the first respondent.
On the other
hand Mr Ndudzo
countered that the first respondent was properly cited as she is the
one who negotiated the agency agreement on her own behalf and that of
the second respondent. Mr Ndudzo
submitted that first respondent at no stage produced a resolution
from the Board of Directors of the second respondent indicating that
she was acting on behalf of the second respondent.
Reference was
made to the case of Madzivire
& Ors v Zvarirwadzwa & Ors 2005
(2) ZLR 148 (H) in support of Mr Nhemwa's
argument.
My view is that this case is irrelevant to the point in issue as it
dealt primarily with the right of individual directors or
shareholders to bring action on behalf of the company.
It is common
cause that the second respondent prima
facie
is a duly registered company in terms of the Company Act [Cap
24:03].
I say prima
facie
because the applicant did not contest this point although the
certificate of incorporation attached as Annexture 'A' to second
respondent's opposing affidavit is unsigned by the Registrar of
Companies and is a photocopy.
Section 9 of
the Companies Act [Cap
24:03]
provides as follows:-
“A company
shall have the capacity and powers of a natural person of full
capacity in so far as a body corporate is capable of exercising such
powers”.
In the absence
of any basis to pierce the corporate veil I would agree with Mr
Nhemwa
that there would be no proper basis in law to cite the first
respondent in these proceedings in her personal capacity albeit,
being both a director and shareholder of the second respondent.
Accordingly the first point in
limine
is upheld.
However this would not dispose of the matter as the second respondent
remains party to the proceedings.
Certificate of Urgency
Mr Nhemwa's
submissions in this regard is that the court papers filed by the
applicant are not in order as the certificate of urgency was prepared
by one Tamuka
Moyo a
legal practitioner with the law firm Mutamangira & Associates who
are acting as the applicant's legal practitioner. This argument is
based on the ratio formulated by CHEDA J in Chafanza
v Edgars Stores & Anor
2005 (1) ZLR 299 wherein at 300G the learned judge said;
“To my mind,
it is totally undesirable for a legal practitioner to either attest
to an affidavit or sign an urgent certificate for and on behalf of a
client who is being represented at his firm as such a lawyer clearly
has an interest in the matter at hand.”
It is quite
apparent that legal practitioners have not taken heed of the learned
judge's advice as in many urgent applications brought before this
court the ratio formulated in Chafanza case supra
is ignored and invariably judges have been asked to deal with this
aspect in most urgent chamber applications.
I am aware
that there has been no unanimity in this court as regards the
correctness of the ratio formulated in Chafanza case supra.
To my knowledge the Supreme Court has not pronounced itself on this
issue. The two divergent views emerging from this court can be
illustrated by a few cases dealt with by my brother and sister judges
as shown below.
In the case of
Attorney
General v Chiringa Estate & Ors
HC659/10 KUDYA J at p3 of cyclostyled judgment came to the conclusion
that the Chafanza case was made by a panel of two judges of
concurrent jurisdiction with the learned judge and that in line with
the principle of stare
decisis,
a single judge is bound by a determination made by a panel of two or
more judges of concurrent jurisdiction. The learned judge was not
persuaded to depart from the ratio decidendi
in Chafanza case.
In the case of
Route
Toute BV & Ors vs Sunspun Bananas (Pvt) Ltd & Anor
HH27-2010 CHATUKUTA J took virtually a different view from that of
KUDYA J. On p3 of the cyclostyled judgment the learned judge had this
to say:-
“I am
persuaded by Mr Chikumbirike's
submission that the rules do not prescribe that a legal practitioner
who signs an urgent certificate must not be from the same firm that
represents the applicant in that matter. Rule 242(2) simply
prescribes that where an applicant is legally represented in an
urgent chamber application, the application must be accompanied by a
certificate from a legal practitioner supporting the urgency of the
application. As Mr Mlotshwa conceded, the decision in Chafanza case
is not binding. It is my view that there is no conflict of interest.
Even if there was such conflict, it does not seem that the conflict
would render the application not urgent. I am therefore of the view
that nothing much turns on the propriety of the certificate of
urgency”.
It is apparent
therefore that the reasoning by CHATUKUTA J is in conflict with the
view clearly expressed by KUDYA J in the Attorney
General v Chiringa Estate (Pvt) Ltd & Ors
supra.
The pertinent
issue which remains unresolved after considering these two cases is
whether irrespective of what the correct interpretation of Rule
242(2) is this court is not bound by the decision in Chafanza case on
the basis of the principle of stare
decisis
as that decision was made by a panel of two judges.
In the case of
African
Consolidated Resources & Ors v Minerals Marketing Corporation of
Zimbabwe & Ors
HC2238/10 PATEL J had the privilege of comparing the apparently
conflicting conclusions arrived at by KUDYA J and CHATUKUTA in the
cases already alluded to. At p4 of the cyclostyled judgment the
learned judge had this to say:
“While I am
prepared to accept that the certificate of urgency in this case is
improper and undesirable but not fatally defective, I might still be
persuaded to strike this matter off the roll for want of compliance
with the Rules as construed and applied in Chafanza case. However, it
is not necessary for me to make any definitive decision on this point
in light of the following determination of the question of urgency”.
The approach
by PATEL J in my view seems to be the middle of the road option as it
were and is not in direct conflict with the conclusions arrived at by
both KUDYA J and CHATUKUTA J. However in the case of Ngoni
Mudekunye and Ors v Garon Evans Mudekunye & Ors
HH190-2010 BERE J, after discussing the apparent conflicting views of
KUDYA J, CHATUKUTA J and PATEL J came to the conclusion that decision
in Chafanza case may not be in line with the correct interpretation
of Rule 242(2) and that it was not a decision made by a panel of two
judges. After dealing with a number of relevant issues pertaining to
the conflicting views on this matter BERE J at p9 of the cyclostyled
in the Ngoni Mudekunye case supra
had this to say:-
“There is no
doubt that this is a sound legal principle in so far as it applies to
affidavits (i.e. the ratio in Chafanza case). It is however doubtful
if this same principle could be extended to a certificate of urgency
as currently provided for in our Rule 242 which in my view is very
clear in its requirements…………..
My very strong view as highlighted is that this principle of law
sound as it is cannot override a specific provision in our rules
particularly where the rule itself has gone further to provide
sufficient safeguards by giving the presiding judge the power to
either confirm or dismiss the urgency of the matter irrespective of
the existence of a certificate of urgency”.
The definitive
finding made by BERE J in the Ngoni Mudekunye case supra
is captured as on pp 9 to 10 of the cyclostyled judgment as follows:
“Coming to
the case before me I am satisfied that there was nothing improper
about Itai Ndudzo filing a certificate of urgency to certify the
urgency of a matter which was being handled by his law firm. In my
view this is what it should be. In fact it appears to me such a
certificate is better and more informative document if prepared by
the applicant's counsel. The point of objection raised in
limine
in this regard is not sustainable.”
While I am prepared to accept the lucid reasoning in the judgment of
BERE J I am unable to agree with the learned judge that the Chafanza
case was not made by a panel of two judges of concurrent jurisdiction
and that it is not binding to a single judge of this court.
I am more
inclined to agree with PATEL J that while on the basis of Chafanza
case the certificate of urgency may under certain circumstances be
deemed to be improper and that it may be undesirable for a legal
practitioner to sign an urgent certificate for and on behalf of a
client who is being represented by such a law firm, that on its own
would not make the certificate of urgency fatally defective. The
point in
limine
in this regard raised by Mr Nhemwa
is therefore dismissed.
Urgency
The question
of what constitutes urgency was aptly dealt within the case of
Kuvarega
v Registrar General & Anor
1998 (1) ZLR 188 at p193 wherein the learned judge has this to say:-
“There is an
allied problem of practitioners who are in the habit of certifying
that a case is urgent when it is not one of urgency………
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 supporting affidavit must
always contain an explanation of the non timeous action if there has
been a delay”.
See also
Madzivanzira
& Ors v Dexprint Investment (Private) Limited and Anor
HH145-2002.
In casu
the question of urgency is closely linked to the exact nature of the
dispute between the parties.
I am unable to
agree with Mr Nhemwa
that the dispute between the parties arose on 14 July 2010 when the
applicant wrote the letter terminating the agency agreement. It is
important in this regard to deal with the sequence and chronology of
events to appreciate what ultimately was the dispute between the
parties leading to this application.
In the letter dated 14 July 2010 the applicant did not seek the
immediate return of the goods after terminating the agency agreement
but stated as follows:-
“We again
ask you to set a time in the next few days to enable us to collect
our property”.
In the letter dated 15 July 2010 the second respondent confirmed the
cancellation of the agency relationship but sought to impose certain
conditions which are summed up as follows:-
“In the
event that you want to immediately collect all the items please be
advised that payment of anticipated commission is required first”.
In fact in the letter dated 15 July 2010 the second respondent
indicated that despite the cancellation of the agency relationship
the applicant's goods will remain in the second respondent's shop
and would continued to be sold as usual as per the cancelled agency
agreement and that the second respondent would give monthly reports
and make payments weekly to the applicant on the goods sold.
The second respondent's argument was that the second respondent had
already incurred costs on the goods in the shop and would not release
those goods immediately.
In my view it
is the contradictory nature of the second respondent's letter which
initially caused problems between the parties. The second respondent
while confirming cancellation of the agency agreement still insisted
that the status
quo ante
should remain.
The subsequent correspondence between the parties is instructive.
After the second respondent's letter dated 15 July 2010 the
applicant then wrote to the second respondent on 2 August 2010
indicating that the applicant would collect the goods on 3 August
2010 at 1500hrs irrespective of the second respondent's concerns
raised in this letter dated 15 July 2010.
However when the applicant visited the second respondent's shop on
3 August 2010, the second respondent locked the shop and refused to
handover the property.
In a letter dated 5 August 2010 the applicant protested to second
respondent about events of 3 August 2010 and proposed to collect the
goods on 16 August 2010. However before that date and on 6 August
2010 the second respondent wrote to the applicant reiterating the
second respondent's unwillingness to surrender the goods as
proposed on 16 August but to surrender he goods on 31 August 2010.
Applicant then capitulated and in a letter dated 11 August 2010
agreed to collect the goods on 31 August 2010 but suggested that the
applicant would visit the second respondent shop on Friday 13 August
2010 for purposes of stock take and accounting pending the collection
of the goods on 31 August 2010. However the second respondent was not
agreeable to this and wrote in a letter dated 12 August 2010 but only
delivered to the applicant on 16 August 2010 at 1334hrs that the
second respondent's counsel was not available on Friday 13 August
and will only contact the applicant after Monday 16 August to respond
to the applicant's request for a stock take.
Needless to say the applicant proceeded to the second respondent's
shop on Friday 13 August 2010 (applicant had not received the second
respondent's letter objecting to this). What then transpired on 13
August 2010 is captured in para 19 of the applicant's founding
affidavit.
In brief the applicant was denied access to the shop, no cash was
handed over to the applicant and the applicant realised that some of
the goods had been removed from the display and placed in a store
room, tables were dumped carelessly outside and some goods valued at
about US$100,000-00 were removed from the shop and the second
respondent was unwilling to disclose the whereabouts of those goods.
In my view the sequence of events clearly shows that as at 13 August
2010 both parties were agreeable that goods would be collected on 31
August 2010. The purpose of the proposed visit on 13 August 2010 was
not to collect the goods but to carry out a stock take pending the
surrender of the goods on 31 August 2010.
What then prompted this application is captured in the applicant's
founding affidavit para 20:-
“On 13
August 2010 it became clear to the applicant that he stands to suffer
irreparable loss because his property was no longer accessible to him
and he has no knowledge of its whereabouts and no longer trusted the
promise to handover property on 31 August 2010”
It is pertinent to note that 13 August 2010 was a Friday hence after
only one working day and on 17 August 2010 the applicant filed this
application.
In my view one cannot seriously argue that a delay of one day
constitutes inordinate delay and therefore would qualify this matter
as not being urgent. To that extent therefore the applicant acted
diligently and timeously in a bid to address the problem which arose
on 13 August 2010. In that context therefore one may be inclined to
rule that the matter is indeed urgent.
The problem in making such a finding arises from the relief sought by
the applicant.
The question to be asked first is what was the dispute between the
parties on 13 August 2010 which prompted this application?
It was certainly not in relation to ownership of the goods. The
ownership of the property was never in issue at any stage.
This then begs the question why in the final order the applicant
seeks a declaration that this property in Annexture 'B' belongs
to the applicant.
That is a non issue.
It is
disingenuous for Mr Ndudzo
to argue that the applicant merely seeks a declarator in the final
order when in fact what is before this court is not an application
for a declarator but a provisional order subject to confirmation on
the return date.
The other aspect to note is that as at 13 August 2010 the surrender
of the goods in Annexture 'B' to the applicant by the respondent
was not an issue. Parties had agreed that this would be done on 31
August 2010. There could not therefore have been an urgency in the
surrender of the goods on 13 August 2010 when parties had already
agreed that this would happen on 31 August 2010.
This would mean that in the context of the relief sought by the
applicant, which is the surrender of the goods there is no any
urgency at all. It would be self created urgency as parties had
agreed to 31 August as the date to collect the goods.
On this score alone, this court is of the view that the matter is not
urgent.
In my view the dispute between the parties as at 13 August 2010 was
not the ownership of the goods as prayed for in the final order. It
was not the surrender of the goods as prayed for in the interim
relief sought. The issue was about being allowed access to carry out
a stock take in anticipation of the surrender of the goods on 31
August 2010.
The urgency therefore was in relation to the issue of being denied
access to the goods to carry out stock take and proper accounting.
Unfortunately this is not the relief sought by the applicant.
As per the interim relief sought the applicant prays for immediate
surrender of the goods which goods the applicant had agreed to
collect on 31 August 2010. The interim relief does not seek to
address the issue of being allowed access to the shop for accounting
and stock take purposes.
Mr Ndudzo
did not even seek to amend this defective provisional order despite
the persistent concerns by the court even at the eleventh hour.
In conclusion I would also want to make the point that even if I was
to find that this matter is urgent I am not inclined to grant the
relief prayed for.
The reason is that the provisional or interim relief prayed for if
granted has the effect of a final order. In other words once the
goods are returned to the applicant as per provisional order there
would be no point even on the return date to deal with the question
of ownership of these goods, which issue has always been a non issue.
My finding is that there was urgency in this matter on the basis of
the dispute which arose regarding access to the goods for purposes of
stock take and accounting. However such urgency does not relate to
the relief sought. The relief sought is misplaced and improperly
drafted. This court cannot in the absence of a proper application,
proceed to amend the relief sought moreso when such shortcomings were
brought to the attention of the applicant's counsel.
Lastly Mr
Nhemwa
sought an award of costs on a higher scale on the basis that this
application is ill conceived, unnecessary and replete with basic
errors, moreso as there was no dispute between the parties.
While I agree
with Mr Nhemwa's
observations in respect of other issues he raised I do not entirely
share his overall sentiments.
At the
commencement of the hearing of this matter the court pointed out that
the parties could resolve the issue without need for a full fledged
hearing of the matter. Mr Nhemwa
was not amenable to this on account of costs. The conduct of the
second respondent cannot be said to be without reproach. The second
respondent was unwilling to unconditionally agree to cancellation of
the agency relationship. The second respondent was unwilling to
unconditionally surrender the goods and most importantly seemed
unwilling to allow the applicant access to the goods, which goods the
second respondent admits belongs to the applicant.
In other words the second respondent was only willing to deal with
the issues on the second respondent's terms, nothing less.
Given those facts I find no basis to reward the second respondent's
conduct with a generous award of costs as prayed for. It is only fair
and just that given the nature and the outcome of this case each
party bears its own costs.
I accordingly make the following order.
1. The application is dismissed.
2. Each party is to bear its own costs.
Mutamangira & Associates, applicant's
legal practitioners
Nhemwa & Associates,
respondents legal practitioners
