Philcool Investments (Pvt) LTD V Tailyuan Sanxing Company & Others

### Preamble
1
HB 222/22
HC 1421/22
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PHILCOOL INVESTMENTS (PVT) LTD

Versus

TAILYUAN SANXING COMPANY

And

THE SHERIFF OF THE HIGH COURT N.O.

And

GAMUCHIRAI SIWADI N.O.

And

MSITA AUCTIONEERS (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 5 & 25 AUGUST 2022

Urgent Chamber Application

D. Dube with M Sibanda & P. Ngwenya for the applicant

Advocate S. Banda for the 1st respondent

MAKONESE J:	This is an urgent chamber application for an interdict.  The order sought in the draft order is in the following terms:

“It is hereby ordered that

1st respondent be and is hereby ordered to tender a sum of US$2 734 932,00 and ZWL608 832,00 within twenty four hours of the granting of this order before the 2nd respondent proceeds in terms of Rule 63 of the High Court Rules, 2021.

Failure of paragraph (a) above;

The 2nd and 3rd respondents be and are hereby ordered to proceed with sale in execution of High Court order obtained under HC 660/22 within 48 hours of the granting of this order.

Costs of suit.

Background facts

On the 30th of June 2022 the applicant obtained an order for damages for loss of business for the sum of ZWL608 832,00 and US$2 734 932,00 against Hwange Coal Gasification Company (Pvt) Ltd, under case number HC 660/22.  The judgment was granted in default.  On the 6th of July 2022 2nd respondent issued a writ of execution against immovable property.  Various goods belonging to the defendant were placed under execution for disposal by way of sale by public auction.  4th respondent proceeded with the sale of some of the attached goods which were advertised as provided by the law on 25th July 2022.  On the 25th of July 2022, 2st respondent filed an affidavit claiming that some of the attached property belonged to 1st respondent. On the 27th of July 2022, the applicant advised the respondent that the purported interpleader  affidavit was defective by reason of the fact that 1st respondent being a peregrinus, was required to tender security  deposit in the sum of US$2 734 932,00 and  ZWL608 832,00 with the Registrar of the High Court.  On 29th July 2022, the 2nd respondent suspended the sale in execution on the grounds that an interpleader application had been filed and served.  The applicant contends that the suspension of the sale in execution was unlawful   and that its employees and creditors continued to be prejudiced by the suspension of the sale.  Applicant avers that it is on the verge of insolvency as a result of the suspension of the sale in execution.  The applicant argues that the interpleader application is fatally defective in that 1st respondent, a peregrinus did not lodge with the Registrar security costs in terms of the Rule 63 (4) of the High Court Rules, 2021.

Submission by the 1st respondent

In limine

The matter is not urgent

1st respondent argues that the matter is not urgent and that applicant has not advanced any grounds to establish urgency.  1st respondent claims that the certificate of urgency is completely devoid of any allegations upon which this court can conclude that the matter warrants being put on the urgent roll.  1st respondent contends that the applicant has an alternative remedy to assert its rights by way of opposing the interpleader application.  The 1st respondent argues that the interpleader application was served on the 2nd of August 2022 and that there is no legal basis for the submission that the suspension of the sale was unprocedural and unlawful.

Applicant contends that the matter remains urgent as the interpleader application itself is defective and therefore there is no application before the court.  In support of its assertion that the matter is urgent, the applicant cited the celebrated case of Kuvarega v Registrar-General 1998 (1) ZLR 188 (H).  Applicant avers that it did not wait for the day of reckoning, but acted when the need to act arose.  Applicant contends that the matter is extremely urgent as it is on the verge of insolvency as a result of the suspension of the sale in execution.  In any event, applicant argues that the sale in execution itself was suspended on the strength of a defective application.  I am of the view that the matter is evidently urgent.  The matter deserves to be heard on the urgent roll.  It seems to me that it has become a matter of practice for respondents faced with and urgent chamber application to raise points in limine for the sole purpose of deflecting the court from hearing the matter on the merits.  When a matter is not urgent, it has to be shown by the party raising the preliminary objection, that this assertion is well grounded on the facts and the law.  The point in limine has no merit.

Submissions on the merits by applicant

The applicant contends that the interpleader application by 1st respondent is seriously defective in that no security costs were paid into court by a peregirinus.  In support of this argument the applicant narrated that on the 28th of July 2022 they advised the Sheriff of the High Court that 1st respondent, the claimant Tailyuan Sanxing Company Ltd, is a company registered in China.  For that reason 1st respondent ought to have paid security costs, being a peregrin litigant.  All the correspondence in that respect elicited no response from the 1st respondent.  This despite the fact that the interpleader application was not filed in accordance with the provisions of Rule 63 of the High Court Rule to justify the suspension of the sale in execution.

Order 63 (4) provides that:

“Where the claims relate to money the applicant shall be required, on delivery the notice mentioned in sub-rule (2), to pay the money to the registrar who shall hold it until the conflicting claims have been decided.”

There is no dispute that the claims in respect of the judgment debt relate to the payment of money.  1st respondent does not deny that it has not pad or tendered security costs to the Registrar.  1st respondent does not dispute the fact that it is a peregrinus and therefore a foreign litigant, whose registered address is in China.  The order obtained in HC 660/22 remains extant and has not been repealed or rescinded or appealed against.

Applicant contends that there is no lawful justification for the suspension of the sale in execution as no valid interpleader process has legally commenced or has been instituted.  Further, the applicant contends that the Sherriff’s office failed to take any reasonable steps to formerly issue interpleader applications.  The Sheriff’s office has negligently or intentionally refrained from demanding security costs as required under Rule 63 (4) of the High Court Rules.  The Sheriff’s office has the advantage of legal counsel and ought to have ensured that the interpleader application was issued in accordance with the law.

On the basis of the above submissions applicant is approaching this court for a mandatory interdict compelling the 1st and 2nd respondents from complying with the requirements of Rule 63 (4) of the Rules of Court.  Applicant avers that it has satisfied the requirements of a final interdict which are a clear right, an injury actually committed and the absence of a similar or adequate protection.

Analysis of the law on final interdicts

The requirements of a final interdict are set out in the case of ZESA Staff Pension Funds v Mushambadzi SC-57-02 where ZIYAMBI JA held as follows:

“It is trite the requirements for a final interdict are:

a clear sight which must be established on a balance of probabilities;

irreparable actually committed or reasonably apprehended; and

the absence of a similar protection of any other remedy.”

These requirements were established in the cases of Setlego v Setlego 1914 AD 221 at 277; Flame Lily Investment Company (Pvt) Ltd; Zimbabwe Salware (Pvt) Ltd & Anor 1980 ZLR, 378 and Sanchem (Pty) v Farmers Africare (Pty) Ltd.

In appropriate cases, this court may grant a final mandatory interdict when all the requirements for an interdict are met.  The 1st respondent contends that the order sought has the effect of interdicting lawful conduct.  This is hardly the case borne out by the facts and circumstances of the case.  The 1st respondent’s abuse of court process cannot be used as a shield by filing court process outside the rules of court, and then having to seek shelter out of such process.  The order sought is for the enforcement of the rules of this court.

The applicant has a right to protection of the law.  The judgment under case number HC 660/22 has to be executed to finality in terms of the law.  The applicant has the legitimate expectation for court orders to be enforced to finality.  In the absence of any lawful impediment the action should proceed as the applicant has no other effective remedy.

This urgent chamber application was filed on the 1st of August 2022.  The 1st respondent was advised that the purported interpleader application was a nullity as no security costs were paid as required by the Rules.  Instead of attempting to comply with the Rules, the 1st respondent has approached this court with dirty hands.  This court must register its displeasure with litigants who wilfully refuse to comply with the peremptory requirements of the law.  The principle on dirty hands was well articulated in the case of Econet Wireless (Pvt) Ltd v The Minister of Public Service and Social Welfare & Ors HH-350-15.

On the basis above, the 1st respondent should not enjoy the audience of this court.  The 1st respondent is not properly before the court.

Disposition

I am satisfied that the applicant has established that it is entitled to a mandatory interdict compelling the 1st respondent to tender security costs within the stipulated period, failing which the 2nd and 3rd respondents are hereby authorized to proceed with the sale in execution.

Accordingly it is ordered that the application be and is hereby granted in terms of the Draft Order.

Mathonsi-Ncube Law Chambers, applicant’s legal practitioners

Mutumbwa, Mugabe & Partners, 1st and 2nd respondents’ legal practitioners