Lister Magoche V CITY OF Bulawayo Commercial Entities T/a Ingwebu Breweries AND Kuppkraft (Private) Limited

### Preamble
1
HB 171/25
HCBC 753/25
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LISTER MAGOCHE

Versus

CITY OF BULAWAYO COMMERCIAL ENTITIES

t/a INGWEBU BREWERIES

AND

KUPPKRAFT (PRIVATE) LIMITED

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 29 JULY 2025 AND 17 OCTOBER 2025

Urgent Court Application

J. Ndlovu, for the applicant

No appearance for the 1st respondent

M.E.P Moyo, for the 2nd respondent

MOYO J:-   This is an urgent court application wherein applicant seeks the following relief;

That 1st Respondent be ordered to immediately suspend all payments to the 2nd Respondent pending the resolution of HCBC 567/25

Alternatively that the sums be paid to either 1st or 2nd respondent’s lawyers, costs of suit at a higher scale”

At the hearing of the matter, I granted an ex tempo judgment.  Applicant has requested for detailed reasons.  Here are they;

It would appear that applicant and 2nd respondent had a verbal arrangement on their participation in a contract with the 1st respondent.

For that simple reason, Applicant avers that the sums to be paid out by 1st Respondent are also due to it and that because of issues between itself and 2nd respondent, 2nd respondent is likely to dissipate this sum whilst applicant has pending litigation which pending litigation will be rendered the academic if the funds are not held by 1st respondent until the issues between the parties have been settled.

Applicant averred that 2nd respondent is financially unstable and its directors have a tendency to rapidly dissipate funds which is why 2nd Respondent owns no attachable assets and that any finding in favour of the Applicant in HCBC 567/25 would be rendered a brutum fulmen if the funds held by 1st respondent are not preserved.

2nd respondent did not challenge the allegations of financial instability and lack of attachable assets in the event of a judgment against it.

2nd respondent agued instead that there is privity of contract and applicant was never a party to the conipaks agreement where the purported funds come from.

In its opposing affidavit 2nd Respondent states that indeed there was a business partnership between itself and applicant and that applicant’s title deeds were used as collateral but that the partnership never extended beyond attached contracts.  2nd respondent also denied that applicant was part of the conipaks agreement which is the agreement that gave birth to the payment of the disputed funds.

2nd respondent avers that applicant has failed to show that she was privy to the contract, no ground for irreparable harm and no balance of convenience.

In her answering   affidavit applicant avers that her title deeds were always used as security for all the 2nd respondent’s contractual obligations with 1st respondent including the conipacks agreement.

What then clearly comes out is that the parties have a dispute that needs its day in court and such day it seems will be when the matter in HCBC 567/25 is set down heard and finalised. In the meantime  applicant, due to fear of 2nd Respondent not having  attachable assets and not being of  sound financial  standing, fears that if the funds currently being held by 1stst respondent are remitted to 2nd respondent and consequently dissipated  the judgment in 567/25, if in her favour will be a brutum fulmen.

In such a matter applicant has to show the following;

A prima facie right (even one being challenged and open to doubt.)

A reasonable ground of fear

No alternative remedy

That the balance of convenience favours the granting of an interdict  as  sought

The parties are haggling over entitlement to the disputed funds.  Until a court of law decides their rights if any, to those funds, in HC 567/25, it is prudent in my view to preserve the funds until the parties’ rights thereto are determined.

There are triable issues between the 2 parties vis a vis the payment of the funds in dispute: whether respondent is entitled to them or not is a factor that the court will only resolve after hearing both sides in the pending litigation in HC 567/25.

2.	It is common cause that there is a pending dispute between the parties and that the funds being sought to be preserved are the subject matter of that dispute.

In my view the parties do have some issues, the 2nd respondent has not stated that it can satisfy the debt against them in the event that the court finds in applicant’s favour in HC 567/25.

2nd respondent has sought to argue the issues to be argued in HC 567/25, which is not the matter before me.  That case can only be ventilated fully by the court before whom the issues will be so tabulated and argued. What applicant seeks is the preservation of the funds pending the resolution of the dispute between the parties and that case is pending is common cause.  I have also not been persuaded that there is prejudice on the part of 2nd respondent as 2nd respondent’s counsel has been emphatic on whether or not the nature of the contract, is as per applicant’s averments or not, however, that was tantamount to leading evidence and even if it could be accepted it still did not resolve the factual disputes surrounding whether or not applicant is entitled to a share of the proceeds of the contract which gave rise to this application.  Applicant says she is entitled to a share, so the funds must be preserved pending determination of what is due to her, 2nd respondent says she is entitled to nothing.  It is however common cause that the parties do have a contractual background between themselves and 1st respondent.  The extent, the rights, the entitlements can only be discerned upon finalisation of the main matter.

I thus granted the application as I did not find any prejudice in both parties waiting for their day in court with the funds are preserved so that the decision is 567/25 is not overtaken by events.

Ndlovu Attorneys, applicant’s legal practitioners

Gill, Godlonton and Gerrans, 1st respondent’s legal practitioners

Nkomo and Sibanda, 2nd respondent’s legal practitioners