On
the 6th
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 5th
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 2nd
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.
