HUNGWE J: The applicant in this case seeks an order
interdicting and prohibiting the first and the second respondents from
proceeding into the sale in execution of the assets laid under seizure and
attachment on 30 April 2009 pursuant to the enforcement of a writ of Execution
against property issued by this Court on 2 August 2006.
The history of this matter is aptly
stated in the first respondent's opposing affidavit paras 2 to 4 which I recite
verbatim below;
“2. That as a point in limine,
applicant has no locus standi to bring this application
since the writ
of execution was issued in respect of a matter between myself and
GMD Food
Catering (Pvt) Ltd. Brightland Farming
(Pvt) Ltd was not and is not
party to those proceedings and the only person
who would have locus standi to
bring an application to set aside the writ of
execution would be GMD Food
Catering (Pvt)
Ltd and not the applicant. The position
is that as a result of
arbitration
proceeding instituted between myself and GMD Food catering (Pvt)
Ltd, an award
was made in my favour by the arbitrator in US dollars. A copy of
the award is
annexed marked “A”.
- I then applied for the registration of the award in
this Honourable Court. That award
was duly registered as an order of court and copy of the order is annexed
hereto marked B. It will be seen
that the award provided for payment to me in US dollars and not the
Zimbabwean dollar equivalent thereof.
As a result of the registration of that award, I issued the writ of
execution which is annexed to the founding papers. This writ has not recently been issued,
as suggested by applicant, but was issued in 2006 and follows the award
and the order of court providing for payment in US Dollars and not the
Zimbabwean dollar equivalent thereof.
As a result of the issue of the writ of execution the property of GMD
Food Catering (Pvt) Ltd was attached.
Applicant instituted interpleader proceeding claiming that the
property was its property but in the Supreme Court this claim
disallowed. I am therefore wishing
to proceed with the sale in execution on the writ of execution which was
issued three years ago. GMD Food (Pvt) Ltd has never complained that the
writ of execution was improperly issued and applicant has no right or
locus standi to do so.
- In regard to the merits of the application I state as
follows:-
a)
Regardless of what the agreement was between myself and
GMD Food Catering (Pvt) Ltd the award of the arbitrator was that I should be
paid in the US Dollar figure of 52 580.00.
That award cannot be challenged nor corrected by applicant.
b)
Ad Para 5
This is
admitted. The claim in Zimbabwean equivalent
thereof could, at the time, only be extracted in the Zimbabwean equivalent
thereof.
c)
Ad Para 6
It is futile
for applicant to state that the goods which were attached belonged to applicant
since the Supreme Court has ruled otherwise.
d)
Ad para 7
It is correct
that applicant offered to pay the figure of $7 026 399 200.00 so as to be
allowed to retain possession of the goods belonging to GMD Catering (Pvt)
Ltd. The offer was not a tender on
behalf of GMD Food Catering (Pvt) Ltd. Even
if it was intended to be a tender because the rate of exchange had not been
agreed nor fixed by the Senior Partners of Ernst & Young Chartered
Accountants. Applicant was told that if
any payment were to be made this was to be made in cash and not by cheques and
would have to include interest in an amount which was acceptable at that time.
e)
Ad Para 8
It is incorrect
to say that I have now issued a writ of execution. The writ of execution was issued
approximately three years ago. There was
no question of my misleading the court.
The writ of execution was issued exactly in terms of the order. If there had been any complaint in regard to
the form of the writ, that should have been raised at that time and not
now. Applicants former legal
practitioners asked for a copy of the arbitration award which was sent to them
under cover of a letter of the 20th of November 2008. At the time that the agreement was entered
into it may not have been possible for GMD Food Catering (Pvt) Ltd have
effected payment in foreign currency. At
the time of the arbitration it was possible to obtain a judgment in foreign
currency but had I then proceeded with a sale in execution I would have been
obliged to have accepted the Zimbabwean equivalent of the US dollar judgment
debt. All that however has changed and
there is no reason why I should not be paid the judgment debt in US
dollars. The question of a suitable
exchange rate therefore no longer applies.
I therefore pray that the application should be dismissed with
costs. I believe that such costs should
be on a legal practitioners and client scale for the following reasons;
a.
Applicant clearly has no locus standi on the matter
b.
Applicant has misrepresented the position to this
Honourable court and has not revealed that the judgment on which the writ was
issued was infact for payment of the US dollar figure.
c.
Has obliged me to incur legal costs, on a legal
practitioner and client scale, without cause
I therefore ask
that the application be dismissed with costs on the higher scale.”
Applicant's
in para 24 of its founding affidavit expressly state:-
“24. As I have already observed at the beginning
of this affidavit, almost all the
background
set out above is common cause as between the parties. Due to
the
passage of time applicant does not now challenge, and is not seeking to
challenge,
the proprietary of the arbitral award that was given by the
arbitrator
or the registration of that award with this Honourable Court.
Applicant
also does not, in these proceedings, take any issue with the Writ
of
Execution which was issued on 31 July, 2006.”
The
applicant's director goes on to state that the applicant takes issues with the
seizure and
attachment of property after the first respondent had rejected a payment of
property made to him in discharge of its indebtedness.
As
at 14 November 2005, or from thereafter the applicant was aware that the
judgment debt of
US$2 580-00 remained outstanding. It was also aware that in order to discharge
it the first respondent was prepared to accept the Zimbabwe dollar equivalent
of that sum calculated at the prevailing market rate, within seven days of the
letter dated 14 November 2005. Applicant chose to tender a cheque for Z$7 426
399 200-00 on 9 December 2008 which was rejected.
Applicant now seeks to argue that as
at 9 December 2008 the first defendant was not entitled to reject this payment.
It argues that attachment of its property on a writ sounding in foreign
currency is therefore in competent and when the matter of whether or not the
first respondent was entitled to reject the payment is argued, it will most
certainly find favour with the courts on the return day.
I do not agree with this contention.
The point of the matter is that there is in existence an unsatisfied writ in
the sum of US$52 580-00. The first respondent in my view was entitled to hold
on to the writ until such time he deemed it appropriate to execute. Fortunately
for the first respondent the present multiple currency regime permits and
recognizes the United States dollar as legal tender. What this means is that a
judgment creditor who holds a judgment sounding in that currency can now
lawfully execute his or her writ notwithstanding that the judgment was obtained
at a point in time when he/she could not lawfully execute in foreign currency.
In the result therefore the chamber
application is dismissed with costs.
Musendekwa-Mtisi, applicant's legal practitioners
Wintertons, 1st respondent's legal practitioners
