Rigid Group Transport (Pvt) LTD V Remington GOLD (Pvt) LTD & 4 ORS

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                                                                             HH 110-11
                                                                             HC 404/11
                                                                   Ref Case No. 8153/10


RIGID GROUP TRANSPORT (PVT) LTD
versus
REMINGTON GOLD (PVT) LTD
and
INGWE PROPERTY HOLDINGS (PVT) LTD
and
INGWE PROPERTY HOLDINGS TRUST
and
ESPOL ARICA (PVT) LTD
and
COLLEN KWARAMBA


HIGH COURT OF ZIMBABWE
GOWORA J
HARARE, 8 February 15 June 2011


Opposed Court application

S Simango, for the applicant
F F Nyamayaro, for first, second and third respondents


       GOWORA J: On 24 November 2010 I issued a Provisional Order under Case No
HC 8153/10 in favour of the first, second and third respondents herein. The applicant, the
fourth and fifth respondents and one Wonder Killian Jakalasi were the respondents
therein. The applicant intends to note an appeal against the order granted and has
approached me for leave to note the appeal. The respondents filed papers wherein they
opposed the grant of leave sought and I therefore directed that the parties file heads of
argument for my assistance.
       The founding affidavit in support of this application has been deposed to by
Wonder Killian Jakalasi who was the fifth respondent under Case No HC 8153/10. He
has described himself as the administrator of the applicant. He avers that he is aggrieved
by the first paragraph in the interim relief that I granted and therefore wishes to appeal
against the order granted. He avers that the applicant purchased the assets which are the
subject matter of that order from the fourth respondent and that the payments were
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                                                                                HH 110-11
                                                                                HC 404/11
                                                                      Ref Case No. 8153/10

effected directly to the first and second respondents. He avers further that a handover of
the assets to a responsible person would be prejudicial to the interests of the applicant
herein who is an innocent third party. He contends that as the applicant is an innocent
third party this court erred when it ordered that a third party nominated by the Sheriff
should manage and secure the assets on behalf the Sheriff. He contends further that this
court erred when it granted an interim order against a litigant who was not a party under
Case numbers HC 3464/10 and HC 3463/10. He contends further that the assets are under
the control of the applicant who has not been joined as a party to the main dispute. He
also contends that the court erred when it ordered that the property be handed over to
another party when the protection order granted to the first respondent by consent was
sufficient to protect their interests.
        The respondents have, in opposing the relief being sought, raised a point in
limine, and have contended that the applicant is approaching the court with dirty hands, in
that it is alleged that instead of handing the property over as required in the interim order,
the applicant has alienated or vandalised the assets recovered to such an extent that, what
remains of the trailers and trucks is basically scrap. This is despite the applicant, the
fourth and fifth respondents having consented to the anti-dissipation order granted in the
interim. The respondents contend in fact that the applicant, the fourth and fifth
respondents have refused to hand over the assets to the nominated representative of the
Sheriff as ordered by myself. They contend further that what remains of the assets has no
value. In addition, the respondents contend that the application for leave to appeal is
intended to frustrate the execution of the provisional order and which execution the
applicant is alleged to have openly defied and ground to a halt.
        The applicant did not file an answering affidavit so the point in limine has not
been responded to. Instead, the applicant has sought to respond to those factual
allegations in heads of argument. I requested Mr Simango to provide authority for his
view that a litigant can, in motion proceedings, respond to facts raised in opposing papers
by adducing facts from the bar through argument. He was unable to find authority. I find
therefore that the allegations that the applicant has refused to abide by the order issued by
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                                                                                HH 110-11
                                                                                HC 404/11
                                                                      Ref Case No. 8153/10

me have not been challenged. Can I therefore find that the applicant has dirty hands and
refuse to hear it?
        In Associated Newspapers of Zimbabwe (Pvt) Ltd v Min of State for Information
& Publicity & Ors 2004 (1) ZLR 538 the Honourable CHIDYAUSIKU CJ said at p
548B-C

        “This court is a court of law, and as such, cannot connive at all or condone the
        applicant’s open defiance of the law. Citizens are obliged to obey the law of the
        land and argue afterwards. It was entirely open to the applicant to challenge the
        constitutionality of the Act before the deadline for registration and thus avoid
        compliance with the law it objects to pending a determination by this court. In the
        absence of any explanation as to why this course was not followed, the inference
        of disdain for the law becomes inescapable. For the avoidance of doubt the
        applicant is not being barred from approaching this court. All that the applicant is
        required to do is to submit to the law and approach this court with clean hands on
        the same papers.”

        The Supreme Court in the matter above upheld the point in limine. In casu, the
respondents before me have filed together with their papers returns filed by the Deputy
Sheriff for Harare subsequent to the issuance of the Provisional Order by myself. When
the matter was argued, the applicant, fourth and fifth respondents and Jakalasi consented
to a non dissipation interdict. A list of the assets which were subject to the order was
annexed. It is an exhaustive list. It lists three single trailers and twelve front link double
trailers. On the returns filed by the deputy sheriff there are no trailers that were found.
There are twenty one tri axles on the list. The deputy sheriff found none. There are
numerous vehicles listed as non runners. These do not feature on the list submitted by the
deputy sheriff. There are also workshop tools and equipment. There are no listed items of
this description which were recovered by the deputy sheriff.
        On 17 January 2011 the deputy sheriff recovered a truck which had been involved
in a collision. It had to be towed from the scene of the accident. Again on 17 January
2011 various movables were placed under attachment, including a truck without wheels.
On 18 January 2011 the deputy sheriff attempted to attach a Nissan Sunny from a Mr
Kwaramba and was advised that it had been sold by the same.
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                                                                                HH 110-11
                                                                                HC 404/11
                                                                      Ref Case No. 8153/10

       It is the hallmark of any functional judicial system to expect that any orders that it
issues are obeyed. It is also a necessary adjunct to the maintenance of law and order that
there exist in any system the rule of law. It is axiomatic with rule of law that court orders
are obeyed. A citizen who openly defies the law cannot be heard by the courts until he is
in a position to approach the court with clean hands.
       From the returns it is obvious that the applicant has not complied with the order
that it consented to. The major portion of the property has disappeared from the premises
where it was when the matter was heard by me. The applicant clearly has no respect for
the law, which law it now expects to grant it relief. It has clearly shown its contempt even
in the manner in which the deputy sheriff, an officer of this court would be kept waiting
for hours on end for the provisional order to be effected. In my view, the applicant having
shown such a disdain of the law by failing to abide by the order which itself consented to
cannot seek to be afforded the privilege of audience from this court. That it has dirty
hands cannot be disputed and its actions are especially reprehensible when viewed
against the fact that it has itself defied an order which it gladly consented to and gave a
false sense of security to the respondents through that order. It has unclean hands and it
does not deserve any indulgence from this court.
       In the premises the point in limine is upheld and the application for leave to
appeal is hereby dismissed. The applicant is ordered to pay the costs of this application.




Nyikadzino, Koworera & Associates, applicant’s legal practitioners
Mutamangira & Associates, first, second & third respondents’ legal practitioners